Posted by Nydia Streets of Streets Law in Florida Child Support
Can child support ordered in another state be modified in Florida? Yes, under certain conditions. Modification in Florida can occur if there is a substantial change in circumstances, and there is personal jurisdiction over the party against whom modification is sought. Modification of an out-of-state child support order was an issue in the case Varchetti v. Varchetti, 4D22-438 (Fla. 4th DCA January 18, 2023).
The parties were divorced in Michigan. Their final judgment indicated the former husband would pay the former wife $3,500 per month for seventy-two months as “as combined spousal support and property settlement payments in the form of nonmodifiable alimony.” The final judgment also required the former husband to pay child support of $300 to the former wife. When the judge in Michigan signed the final judgment, the judge crossed out the part of the judgment that incorporated child custody and child support provisions of the parties’ agreement. It was later determined that jurisdiction was in Florida for issues related to the children. The parties’ settlement agreement also stated “All attorney and professional fee charges that [the former wife] incurs after the date of this Agreement shall be [the former wife’s] sole responsibility.”
The former wife filed a motion to quash the Michigan child support order and to modify child support upward in Florida. The former husband responded by attempting to dismiss the motion and questioning the Florida court’s jurisdiction over the child support issue. The Florida court eventually entered an order which granted upward modification of support, imputed the former wife to minimum wage, did not include the alimony payments as part of her income for calculating support, and reserved to award the former wife attorney’s fees and costs. The former husband appealed.
First the appellate court found jurisdiction was proper in Florida on the child support issue because the Michigan court expressly declined to adopt the child support provisions of the parties’ divorce agreement in its final judgment. It also reasoned the former husband failed to timely challenge the Michigan court’s striking of the child support provisions from the final judgment. Next, the court found it was error for the trial court to refuse to consider the alimony payments as income for the former wife when the parties’ agreement explicitly labeled the payments as alimony.
Turning to other issues with the former wife’s income, the court found it was error to impute the former wife to minimum wage when there was evidence she had recently quit a job that paid her $2,000 per month. The court also found “The third matter requiring reconsideration relates to the in-kind contributions, payments, and reimbursements which the former wife was receiving, all of which demonstrated that her living expenses were being reduced. Pursuant to section 61.30(2)(a)13., Florida Statutes (2021), when calculating a parent’s gross income for purposes of determining child support, the trial court should consider any “[r]eimbursed expenses or in[-]kind payments to the extent that they reduce living expenses.” § 61.30(2)(a)13., Fla. Stat. (2021). The former wife testified that she lived with her fiancé and uncle, both of whom were providing her financial assistance by paying or reimbursing her for various bills, including home utilities, car payments, auto insurance, and groceries. The Florida court erred in failing to take these in-kind contributions, payments, and reimbursements into consideration in calculating the former wife’s gross income.”
The court also held “Finally, we agree with the former husband that the Florida court erred in reserving jurisdiction to award the former wife attorney’s fees. This ruling was inconsistent with the parties’ CSA which explicitly stated the former wife would be solely responsible for her own attorney’s fees after the settlement agreement was executed. See Rocha v. Mendonca, 35 So. 3d 973, 976 (Fla. 3d DCA 2010) (‘Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of a marital settlement agreement.’).”
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