Posted by Nydia Streets of Streets Law in Florida child support
Do you need to file a motion for rehearing in your Florida child support case? This was an issue in the case Delgado v. Morejon, 5D19-1618 (Fla. 5th DCA May 1, 2020) in addition to the former husband’s complaint that the trial court committed error in striking his pleadings.
About one year after their final judgment of divorce was entered, the former husband filed a petition to modify his child support on the basis that he involuntarily lost his second job. Following a hearing on the petition but before the court entered its written order, the former husband filed a second amended petition to modify support, alleging the former wife’s income increased and again alleging his job loss. The former wife filed an answer to the second amended petition, and thereafter the court entered an order denying the first petition, finding the former husband’s job loss was voluntary. The former husband then moved for attorneys’ fees and costs based on need and ability to pay.
A hearing was held on the attorneys’ fee motion and it was granted based on the court’s finding that the former wife had a need, and the former husband had an ability to pay fees that were unnecessarily incurred due to the former husband’s conduct. The former husband moved to disqualify the judge, and the case was transferred to a new judge. The new judge dismissed the former husband’s second amended petition. The former husband appealed, arguing the dismissal was improper, that the order granting fees did not contain required statutory findings and the former wife failed to plead for attorneys’ fees and costs in her answer to his petition.
In affirming the trial court’s attorneys’ fee award, the appellate court held “Although Former Wife’s pro se answer did not include a request for attorney’s fees, contrary to Former Husband’s assertions, the attorney’s fees order was not based on section 61.16(1). Rather, the trial court granted attorney’s fees pursuant to Levine, 862 So. 2d at 880–81, which provides that attorney’s fees may be awarded against a party to compensate for the unneeded attorney services caused by bad faith litigation. And, although the trial court’s attorney fee order lacked findings as to the reasonableness of the hourly rate and hours expended, Former Husband did not raise this deficiency in a timely filed motion for rehearing. As such, any error is unpreserved for appellate review.”
Turning to the dismissal of his petition, the court held “Although the trial court struck the petition under the mistaken impression that Former Husband required leave of court to amend, and therefore the pleading was unauthorized, Former Husband again did not notify the trial court of the error via a motion for rehearing, nor did he challenge the adverse ruling in any way. [. . .] Finally, we dismiss Former Husband’s appeal of the trial court’s order sua sponte dismissing his Second Petition. The order did not indicate that it was with prejudice, and nothing on the face of the order prohibited Former Husband from filing an amended supplemental petition. The order therefore lacks sufficient language of finality to constitute a final order and does not fit within the limited categories of appealable, nonfinal orders in Florida Rule of Appellate Procedure 9.130(a)(3).”
The filing of a petition for modification of child support in Florida requires special considerations and analysis. Schedule a consultation with a Miami child support lawyer to go over your case.