Posted by Nydia Streets of Streets Law in Florida Child Support

If child support arrears are owed to a parent and the other parent later assumes majority time-sharing, can those arrears fully offset ongoing child support the parent may be ordered to pay? The answer depends on if there are “compelling equitable criteria and considerations justifying such set off,” according to Tinoco v. Lugo, 2D21-1130 (Fla. 2d DCA July 15, 2022).

The father filed a petition to modify timesharing and child support, and the parties ultimately agreed the father would have majority time-sharing. A hearing was held on the parties’ motions concerning financial issues. The father sought retroactive modification of child support to the date he filed his petition for modification. The court ultimately awarded modification to the date the children began residing with the father. The court also offset the mother’s ongoing child support obligation that resulted from the change in time-sharing with the father’s substantial arrears amount, resulting in a judgment that the mother would not have to pay child support for years. The father appealed.

The appellate court disapproved of the trial court’s offset of the child support payments. The court reasoned: “As relevant here, ‘set offs against support obligations are permitted 'in those limited circumstances where th[e requesting] party can show ‘compelling equitable criteria and considerations’ justifying such set off.’’ Marlowe v. Marlowe, 123 So. 3d 1194, 1196 (Fla. 1st DCA 2013) [internal citations omitted]. As this court has explained, ‘within the confines of the parents' financial capability, a trial court's paramount concern in matters of this kind is to protect the economic welfare of the child, not to balance through set-off a creditor-debtor relationship.’”

The court held, “The parties have not identified, nor have we located, any Florida appellate decision approving a complete offset of child support arrearages resulting in years of zero ongoing support for a minor child living with the less financially capable parent [. . .] Here, the trial court failed to specify any 'compelling equitable criteria and considerations' justifying such set off." [internal citations omitted]. Other than stating that the unspecified amount of the arrearage was ‘fairly staggering,’ the trial court simply said its ruling was ‘[b]ased on the updated financial affidavits provided by both parties, as well as the stipulated Parenting Plan that gave the father the majority of overnights.’ Further, as discussed infra, the trial court made no findings about the Father's financial circumstances, other than accepting his stated gross income and rejecting the Mother's argument that he was underemployed. The court made no findings at all about the needs of the child or whether those needs would be met without any monthly support from the Mother for years. Thus, it is not clear that in offsetting the arrearage the court considered ‘the economic welfare of the child,’ much less made that its ‘paramount concern,’ as required.”

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