State, Dept. of Revenue on Behalf of Carbonaro v. Carbonaro, 96-01194

• Decision Date: 26 June 1998
• Docket Number: No. 96-01194,96-01194
• Citation: 712 So.2d 1225
• Parties: 23 Fla. L. Weekly D1557 STATE of Florida, DEPARTMENT OF REVENUE, on Behalf of Sharon L. CARBONARO, Appellant, v. Michael J. CARBONARO, Appellee.
• Court: Florida District Court of Appeals

Page 1225

712 So.2d 1225

23 Fla. L. Weekly D1557

STATE of Florida, DEPARTMENT OF REVENUE, on Behalf of Sharon L. CARBONARO, Appellant, v. Michael J. CARBONARO, Appellee.

No. 96-01194.

District Court of Appeal of Florida,

Second District.

June 26, 1998.

Geraldyne H. Carlton and Charles L. Carlton of Carlton & Carlton, P.A., Lakeland, for Appellant.

No brief filed on behalf of Appellee.

ALTENBERND, Judge.

The Department of Revenue, on behalf of Sharon L. Carbonaro, appeals an order establishing support owed by Michael J. Carbonaro for his three children. The trial court ordered support retroactive only to the date the father was served, and not to the date the petition was filed. We reverse the trial court's decision because the factual issues relating to the question of retroactivity were never tried.

In 1982, Mr. and Mrs. Carbonaro were married in Hancock County, Mississippi. They have had three children, all of whom were born in Florida. In 1990, Mrs. Carbonaro returned to Mississippi with the children, and Mr. Carbonaro remained in Florida. The couple never divorced.

In October 1991, the Department of Health and Rehabilitative Services filed a Uniform Reciprocal Enforcement Support Act petition on behalf of Mrs. Carbonaro and the three children. Although the Department made attempts to serve Mr. Carbonaro, it was unsuccessful until March 16, 1995. When Mr. Carbonaro answered the petition, he objected to retroactive child support prior to the date of service on the ground that Mrs. Carbonaro had absconded with the children.

A hearing was conducted before a child support hearing officer in July 1995. Mr. Carbonaro claimed that since April 1990 he had "continuously" tried to locate his children. Mrs. Carbonaro did not attend the hearing, but the record reflects that when she left Florida, she had returned to the county in Mississippi where the couple had been married. Thus, Mr. Carbonaro's efforts to locate his children are open to question.

The hearing officer concluded that the issue of retroactivity was sufficiently complex that he should not decide the issue. His proposed order merely reserved the question and referred the matter for resolution by the trial court. Although he did not decide the issue of retroactivity, the proposed order contained a few findings of fact relating to this issue. When the trial court received the proposed order, it entered judgment pursuant to Florida Rule of Civil Procedure 1.491(f). The Department moved to vacate the judgment within ten days because the retroactivity issue had not been resolved, contending the proposed order should contain no findings relevant to the issue that had been returned to the trial judge. In October 1995, the trial court declared that it could not substitute its findings for those of the hearing officer, and in December it entered an order requiring child support to be paid only from the date of service. The December order was entered prior to the filing of a transcript of the hearing before the child support hearing officer. The Department appeals the December order.

In assessing the need for an additional evidentiary hearing in this case, it is helpful to identify the true nature of the issue that must be decided in the trial court. It is common to refer to an order awarding child support for any period prior to the date of the order as a "retroactive" award of support. In the context of a modification of an existing child support order, where the earlier judgment required a specific payment for a given month and a new judgment requires a higher payment for that same month, it may be arguable...