Posted by Nydia Streets of Streets Law in Florida Divorce
Retroactive child support must be addressed by a Florida family court when it is requested by either parent. Since Florida law considers child support to be a right that belongs to a child, parents are usually not allowed to waive child support payments. This issue was explored in the case Johnson v. Johnson, 1D19-430 (Fla. 1st DCA June 15, 2020).
A petition for divorce was filed after the parties were married for approximately 11 years. During the marriage, the former wife earned significantly more income than the former husband, and the parties agreed the former husband would remain home to care for the children. The former husband sought alimony, as he had limited education and was working a retail job at the time of divorce. After a trial, the court awarded the former husband 60 months of durational alimony in the amount of $2,000.00 per month. The former wife appealed, also taking issue with the fact that the trial court did not award her retroactive child support as requested.
The appellate court agreed with the former wife on both points. With regard to the alimony, the former husband argued the former wife did not preserve this issue for appeal because she did not file a motion for rehearing. The appellate court disagreed with the former husband, holding “This argument is preserved for appeal as Florida Rule of Family Law Procedure 12.530(e) provides that arguments regarding the sufficiency of the evidence in a non-jury trial may be raised on appeal without first filing a motion for rehearing.” After reviewing the evidence and finding the former husband’s need was lower than that indicated in the final judgment, and the the former wife’s ability to pay was lower than that indicated in the final judgment, the appellate court reversed the alimony award, holding “Given these discrepancies, the trial court’s decision to award $2,000 in durational alimony for sixty months is not supported by competent, substantial evidence.”
Moving on to the retroactive child support issue, the appellate court held “parents may not waive children’s rights to retroactive support.” The evidence at trial showed the former wife had custody of the children from the time of separation with the former husband having supervised visits, and that he was working during this time but not paying support. Accordingly, the appellate court held “In the supplemental final judgment, the trial court implicitly denied the mother’s retroactive child support request purportedly because she had unilaterally chosen to incur expenses of private school and extracurricular activities. These findings do not speak to the children’s needs or the husband’s ability to pay. The trial court erred in failing to fully consider retroactive child support, which is a dual obligation by both parents owed to the children.”
A Florida divorce case may concern many complicated issues which are best handled by a Florida divorce lawyer. Contact a Miami family law attorney for a consultation to understand how the law may be applied to your case.