Newberry v. Newberry, 5D02-362.

• Decision Date: 15 November 2002
• Docket Number: No. 5D02-362.,5D02-362.
• Parties: Michael R. NEWBERRY, Appellant, v. Brenda L. NEWBERRY, Appellee.
• Court: Florida District Court of Appeals

831 So.2d 749

Michael R. NEWBERRY, Appellant, v. Brenda L. NEWBERRY, Appellee.

No. 5D02-362.

District Court of Appeal of Florida, Fifth District.

November 15, 2002.

Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellant.

James E. Shepherd of Shepherd, McCabe and Cooley, Longwood, for Appellee.

COBB, J.

On November 12, 1998, the appellant, Michael Newberry, filed a petition seeking modification of a final judgment of dissolution in regard to the primary residence of his son, Levy, born November 9, 1989. Two other minor children of the parties, Shayna (then seven years of age) and Ashley (then sixteen years of age), were also residing with their mother, Brenda Newberry, at that time. Michael's petition also asked for a commensurate reduction in child support in the event that his request for residential custody of Levy was granted.

Brenda Newberry, Michael's former wife, answered the petition, but she did not file a counter petition or ask for affirmative relief. While the modification petition was pending during the year 1999, the parties entered into two mediation agreements which provided that Ashely would live with Michael while Levy and Shayna would continue to live with Brenda; the parties could not agree on child support.

Prior to trial in July, 2001, Michael submitted a child support guideline worksheet which contained the following calculations:

Father's net monthly income: $ 4,775.48 Mother's net monthly income: + 1,982.68 __________ Combined Income: $ 6,758.16 Total Monthly Obligation: $ 1,856.00 Father's Share: $ 1,284.47 Mother's Share: $ 571.33

Michael filed an amended petition seeking a change in residence for Levy and Shayna, essentially challenging the mediation agreement. Ashley, who reached majority in June 2000, had begun living with her father in June 1999, although Michael had not requested a reduction in his child support payment relative to her.

On November 6, 2001 the trial court entered final judgment denying the father's petition for modification, but increasing child support from $850.00 per month (which had been for three minor children) to $1,284.47 (for the two remaining minor children), and made the support award retroactive to the date of the filing of the father's original petition in November, 1998. This retroactive ruling resulted in an arrearage of $13,226.22.

We agree with the father's argument, succinctly summarized in his brief as follows:

The parties went to court on the father's modification petition that sought a change in the residence of the parties' three children with an accompanying change in child support, and nothing more. After the trial court denied the change in residence, it increased the child support the father had previously been ordered to pay without any pleading request for that relief. Moreover, this increase was ordered retroactively for children who were not involved in the father's initial petition. This increase was also ordered retroactively despite the lack of evidence that the children's needs had increased. And this 2001 increase was ordered retroactively despite the fact that at the time the father's petition was filed (1998) the mother earned more than the father, and the father's 1998 income was substantially less than his 2001 income. The father was totally denied due process, and reversal is required.

A trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings. Cortina v. Cortina, 98 So.2d 334 (Fla.1957). For example, a petition for contempt for nonpayment of child support does not give a court the power to reduce court ordered child support. Hammond v. Hammond 492 So.2d 837 (Fla. 5th DCA 1986). In this case, the father moved to modify the dissolution decree by changing the primary residential custody of the parties' children from the mother to himself. In addition, he requested an appropriate adjustment downward of child support to reflect the new living arrangements in the event his petition was successful. The mother made no affirmative requests of her own. Nevertheless, the trial court found the father's mere mention of child support permitted the court to increase the child support paid by the father. Moreover, the number of children covered by the prior order had been reduced from three to two¹. This ruling by the trial court was clearly error.

We reject any claim that the issue was tried with the implicit consent of the parties. Immediately after the trial court announced that it was increasing the former husband's child support obligation and making the increase retroactive, the former husband's counsel stated "I must object to a couple of things for the record". The trial court responded:

Well, you don't have to object on the record, sir. You can object in Daytona, 38 miles north after I have entered the final judgment. Those are my findings of fact. That is my judgment.

We cannot say that the former husband consented to trial of this issue where the court rebuffed his effort at interposing his objections.

The trial court in this case blatantly violated the most basic of constitutional rights—due process of law. The father was given no notice or opportunity to be heard on the distinct issue of increasing the amount of child support he paid, much less being given credit for child support paid for Ashley while she was living with him pursuant to a mediation agreement between the parties. The trial court's judgment increasing child support, both prospectively and retroactively, is reversed.

REVERSED AND REMANDED.

PLEUS, J. concurs.

SHARP, W., J. concurs in part and dissents in part, with opinion.

SHARP, W., J., concurring in part and dissenting in part.

I agree that appellant should receive a credit for the child support he paid appellee for Ashley after he filed his petition to modify.² I also agree that the retroactive child support award should not have been calculated on appellant's highest current income, but rather the lesser sum originally set.

However, I disagree that the trial court did not have jurisdiction to hear the issue of child support for two reasons. First, I believe that, under present statutory law and rules of procedure, child support must be recalculated every time it comes before the court. Second, the record establishes that this issue was raised by appellant during and before the hearing, and tried by implied consent pursuant to Florida Rule of Civil Procedure 1.190(b).³

The parties were divorced in 1996, after entering into a settlement agreement, which was incorporated in the final judgment. Appellee was designated the primary residential parent of the parties children, three of whom were minors. Appellant's child support obligation was set at $850 per month for the three children.

In November of 1998, appellant filed a petition for modification to obtain primary residential custody of one of the children, Levy, and to modify his child support obligation to "reflect the new living arrangement." Subsequently, the parties mediated the dispute and agreed that a different child, Ashley, would make her primary residence with appellant. However, the parties could not agree on the amount of child support, and that issue was left to be determined in a later proceeding. In August of 2000, appellant filed another amended petition to modify which would reflect Ashley's change in residence. He again asked that his child support be modified to "reflect the new living arrangement" regarding Ashley, and continued to seek primary residential custody of Levy.

Appellant's argument here and below in his motion from relief from judgment, is a technical one and can be summarized as follows: The appellee did not formally request modification of child support;⁴ and appellant requested modification only for any child for whom he was to be the primary residential parent. It appears that what appellant actually sought was a percentage reduction in child support, from his original child support obligation, for any child or children who resided with him; i.e., that the $850 child support ordered in the 1996 divorce decree be reduced on a percentage basis for a child (or children) living with him.

What appellant did, however, was to comply with the Florida Family Law Rules of Procedure 12.285(f) and 12.902(e) and file his child support guidelines worksheet based on the parties current financial status, calculating the child support obligation based on those figures. Further, during the hearing he asked for a recalculation of child support, based upon the parties' current earning figures, and for a credit for child support paid to appellee for Ashley (who was living with him) based on the parties' 1999 figures, even though he had paid child support based on the 1996 figures. The effect of these actions, if permitted, is that child support would be modified based on the parties current income figures for any child living with appellant; but for any child residing with appellee, there would be no modification. This inequitable argument is a "heads I win, tails you lose" proposition.

In view of the requirement that parties must file child support guidelines worksheets based on their current incomes whenever child support is at issue, and those worksheets require calculation based on the parties' current income, I think that the pure reduction option of the past, without reference to the parties current earnings or the periodically updated child support amounts, is a thing of the past. Rather, each time child support comes before the court, recalculation, based on the current financial status of the parties, is required. See Rule 12.285(j), 12.902(e). The trial court must apply the guidelines as amended to a case that is pending when an amendment becomes effective. Rainsberger v. Rainsberger, 819 So.2d 275 (Fla. 2d DCA 2002).

Florida Family Law Rule of Procedure 12.285(j) requires the worksheet and provides:

Child Support Guidelines Worksheet. If

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