State, Dept. of Health and Rehabilitative Services v. Burns, 94-1729
| Decision Date | 12 May 1995 |
| Docket Number | No. 94-1729,94-1729 |
| Parties | 20 Fla. L. Weekly D1168 STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and Geneath Williams, Appellants, v. Larry BURNS, Appellee. |
| Court | Florida District Court of Appeals |
Joseph R. Boyd and William H. Branch of Boyd & Branch, P.A.; Chriss Walker of Dept. of Revenue, Tallahassee, for appellants.
No appearance, for appellee.
The State of Florida, Department of Health and Rehabilitative Services (HRS), appearing on behalf of Geneath Williams, appeals an order that modified appellee's child support obligations; reduced the amount of child support arrearages; and ordered the state to retain the first $50 of child support paid by appellee, rather than to pay the $50 amount to Williams as provided in 42 U.S.C. Sec. 602(a)(8)(A)(vi). We reverse.
In 1986, appellee, Larry Burns, was adjudicated the father of two boys born to Geneath Williams and was ordered to pay $150 per month for their support. On March 28, 1994, HRS and Williams filed a contempt action alleging that Burns was in arrears on his child support obligations. At the time, Williams had custody of the two boys and a third child, who is unrelated to Burns.
Initially, Williams received Aid to Families with Dependent Children (AFDC) benefits of $241 per month for her third child. However, in January 1994, she began receiving AFDC benefits of $303 per month for one of the parties' sons and the third child, 1 a $62 increase.
In the order appealed, the trial court reduced the amount of Burns' child support arrearages owed for three months from $450 to $186, which would be the equivalent of three payments of $62 per month. In addition, the court reduced the amount of Burns' prospective child support obligation from $150 to $62 per month. Finally, the trial court ordered the State of Florida not to pay the first $50 of child support required to be paid to Williams by 42 U.S.C. Sec. 602(a)(8)(A)(vi). The court ordered this $50 payment, commonly known as the "disregard check," to be retained by the State of Florida.
Turning first to the trial court's prospective modification of Burns' child support obligation, we note that the petition for contempt and the notice of hearing therefor do not contain any mention of modification proceedings or notice that the issue of modification would be considered. Modification of child support must be specifically requested with notice to the adverse party and may not ensue upon a motion for contempt. Morgan v. Morgan, 429 So.2d 432 (Fla. 1st DCA 1983). A trial court cannot circumvent the required pleadings by ordering child support modification on its own motion unless proper notice is given so that the opposing party has a fair opportunity to oppose the motion. Jackson v. Powell, 546 So.2d 1145, 1146 (Fla. 3d DCA 1989). Thus, the trial court was without authority to reduce Burns' child support obligations from $150 per month to $62 per month and the order modifying child support was error.
Turning next to the trial court's order reducing the amount of past-due child support arrearages from $450 to $186, we observe that the right to arrearages in child support is a vested right which inures to the benefit of the child. Absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct on the part of the custodial parent, a trial court cannot cancel or retrospectively reduce the amount of past due installments owed. Ashe v. Ashe, 509 So.2d 1146, 1148 (Fla. 1st DCA 1987). The record does not indicate the presence of any of these circumstances, and therefore the trial court's order reducing the arrearages was error.
Finally, we conclude that the trial court erred in ordering that the state "... not pay the first $50.00 of child support paid by the Defendant to Ms. Williams [but] [t]he $50.00 payment ... shall be retained by the State of Florida." Title IV of the Social Security Act (42 U.S.C. Sec. 601, et seq.) governs the entitlement of families to AFDC benefits. Since Florida has previously elected to participate in the AFDC program, it is required to operate its program in accordance with the provisions of Title IV. Ziegler v. Department of Health and Rehabilitative Services, 601 So.2d 1280 (Fla. 1st DCA 1992...
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