Teta v. Teta

• Decision Date: 16 July 1974
• Docket Number: No. U-76,U-76
• Citation: 297 So.2d 642
• Parties: Dina TETA, Appellant, v. Pat TETA, Appellee.
• Court: Florida District Court of Appeals

Page 642

297 So.2d 642

Dina TETA, Appellant, v. Pat TETA, Appellee.

No. U-76.

District Court of Appeal of Florida, First District.

July 16, 1974.

M. J. Menge, of Shell, Fleming, Davis & Menge, Pensacola, for appellant.

Richard P. Warfield, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellee.

JOHNSON, Judge.

The appellant, the divorced wife of appellee and mother of the subject Minor child, seeks reversal of an Order of Modification which changed the appellee-father's visitation privileges and the method of payment of child support.

The parties herein were married in Italy in July of 1960 and thereafter moved to the United States. In July of 1963 they separated and appellant, pregnant at the time, returned to her native Italy. The only child of the union was born in Italy on January 14, 1964. He has never seen his father, has never been in the United States and he speaks no English.

On May 13, 1968, a final decree of divorce was entered and appellant was awarded custody of the child, with appellee to 'have the right of reasonable visitation.' Appellee was ordered to pay child support in the amount of $150.00 per month. The trial court noted that 'the parties had stipulated to the matters at issue as relate to custody of and support for the parties' minor child . . .'

In July of 1970, appellee-father petitioned for a modification of the final divorce decree's visitation privileges, alleging that he was unable to go to Italy because he could not leave his business unattended and also because of the disparity of divorce laws between Italy and the United States. Appellee had remarried and feared that he would be arrested in Italy as a bigamist. A full hearing on this petition for modification was held before Judge Kirke Beall, at which time depositions that had been taken in Italy were admitted into evidence. There was some reference in these depositions that the minor child had been ill.

Judge Beall, who was also the Judge who rendered the final judgment of divorce in 1968, rendered his Order of Modification on August 24, 1971. Said Order recited that neither the parties at the time of entering into the stipulation for final judgment nor the court upon entry of final judgment contemplated transportation of the minor child to the United States for visitation purposes. It was further found that the appellant mother had not refused appellee his 'rights of reasonable visitation.' The final judgment was, however, modified by Judge Beall to the extent that upon the child reaching twelve (12) years of age, appellant was to cause the child to travel to the United States for a sixty (60) day visit with appellee each year, appellee to bear the transportation expenses. Appellant filed a notice of appeal from this modification order, but the appeal was dismissed for failure to prosecute.

In January of 1973, appellee filed a second petition seeking modification of the divorce decree and of the 1971 Order of Modification, again alleging his inability to travel to Italy due to the reasons stated above. He further alleged the improved health of the child, and paid into the court registry arrearages in child support payments. Appellant answered this petition for modification by contending, inter alia that appellee had failed to allege any substantial change in the circumstances of the parties since the 1971 Order of Modification.

After a hearing on this second petition, Judge Theo F. Bruno found that because of the differences in Italian and United States laws regarding domestic relations problems and the present existing circumstances of the parties, the provisions of the 1971 modification are incapable of execution and unreasonable. It was also found that appellee was in arrears in payments of child support in the amount of $3,000.00. Upon such findings, Judge Bruno ordered and decreed a modification which required appellant to permit the child, then nine years of age, to visit appellee in the United States for 60 days annually, beginning Immediately, appellee to bear the travel expenses. While appellee was ordered to pay to the Clerk all outstanding arrearages in child support payments, it was further decreed that appellant could not receive such payments until she had permitted the child to travel to the United States for a period of not less than 60 days prior to the end of the calendar year 1973, and if she failed to permit such travel, the arrearages would be returned to appellee and appellant's rights thereto 'will be considered waived and the said money thereby forfeited retroactively because of her failure to comply with the visitation arrangements set down in this order.' Additionally, it was ordered that only one-half of future payments of child support would be disbursed by the Clerk to appellant until the Court received notice that future annual visits had been permitted, the accumulated sums to be returned to appellee if such visits had not been permitted by the end of each succeeding calendar year.

As grounds for reversal of this second modification order, appellant urges that there were no material changes in circumstances to justify a further modification order and that there was no finding that the changes ordered were in the child's best interest. Also appellant contends that the trial court erred in ordering that the accumulated arrearages of payments of child support, as well as one-half of the future payments, be retained by the Clerk pending compliance with the visitation privileges in the future. With these contentions, we are compelled to agree.

Treating the latter assignment of error first, we find that there has been no showing that equity required that appellant be refused payments of vested past due installments of child support. In Florida, unpaid child support payments constitute a vested right not subject to modification. Where default occurs in the payment of installments of child support under a decree with has become final, the unpaid installments constitute vested property rights, and the court...