Cordell v. Cordell

• Decision Date: 17 March 2010
• Docket Number: No. 3D09-1646.,3D09-1646.
• Citation: 30 So.3d 647
• Parties: Brett Randall CORDELL, Appellant, v. Beatriz E. CORDELL, a/k/a Beatriz Pelaez, Appellee.
• Court: Florida District Court of Appeals

30 So.3d 647

Brett Randall CORDELL, Appellant,
v.
Beatriz E. CORDELL, a/k/a Beatriz Pelaez, Appellee.

No. 3D09-1646.

District Court of Appeal of Florida, Third District.

March 17, 2010.

Lori Barkus, Weston, for appellant.

Christine Ritter, for appellee.

Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.

RAMIREZ, C.J.

Brett Randall Cordell appeals an order denying exceptions to the report of the general magistrate in which the court affirmed the retroactive modification of child support in the underlying dissolution of marriage action. We reverse the judgment because there is no legal basis for an award retroactive to the date of the final judgment, rather than the date of the child support modification petition.

Factual Background

The parties married in Georgia on May 27, 1988, separated on August 13, 1990, and had one child born on September 18, 1990. The child is now an adult. On November 18, 1994, the wife, Beatriz E. Cordell, filed a Petition for Dissolution in Miami-Dade County alleging that the father's, Brett Randall Cordell's, residential whereabouts were unknown, but that he was employed at Ross Department Store in Portland, Oregon. The father filed a response on December 12, 1994. Despite that, the trial court entered a default against the father and set the matter on the uncontested divorce calendar. In its final judgment dated February 17, 1995, the trial court awarded the wife the sole parental responsibility and primary residential custody of the child and reserved on the issue of visitation until the father

30 So.3d 648

presented a proper request for such visitation. The court also ordered child support in the amount of $75 per month, stating that this was "the minimum amount of support based upon the probable earnings level of the Respondent; the amount will be subject to retroactive modification if it is found to be incorrect, as computed under the child support guidelines, at such time as the actual earnings of Respondent are established."

In July, 1997, the mother filed a motion to allow the child to travel to Colombia without the father's authorization, along with the father's written notarized consent. These proceedings made no mention of child support or arrearages.

In 2004, the mother sought public assistance, prompting the Department of Revenue to institute child support proceedings on her behalf. These proceedings were dismissed due to the mother's failure to cooperate with the Department of Revenue.

In December, 2006, the mother commenced proceedings to enforce collection of child support and modify the obligation retroactively based on the father having graduated as an electrical engineer. She alleged that the father was in arrears in the amount of $10,575. The court referred the matter to a general magistrate.

In his answer and counter petition, the father alleged that he paid child support of $75 until the mother moved without notifying him of her new address or new phone number; that he sent checks and letters to the mother which were returned; and that at no time during the previous eleven years did the mother attempt to contact him, despite that fact that during all that time, he had only resided at two separate addresses. The father also asserted the defenses of waiver and laches.

After conducting evidentiary hearings, the general magistrate issued her recommendations, denying the defenses of waiver and laches, and finding the father in contempt, and concluding that the father's failure to pay was willful because he had a $19,000 savings account. The magistrate recommended a sentence of ninety days in jail, with a purge amount of $8,800, which represented $75 per month from March, 1995 to August, 2007, less a $2,375 credit to the father for payments he had previously made. The magistrate also concluded that the father owed...