Opinion
No. 5D04-2435.
March 24, 2005.
Appeal from the Circuit Court, St. Johns County, John M. Alexander, J.
Gary A. Benson, Jacksonville, for Appellant.
Homer A.C. Bliss, Jacksonville, for Appellee.
David Neese, the former husband, appeals the trial court's modification of child support, calculation of support arrearage, and award of attorney's fees. We affirm the modification of the child support, but vacate the awards of support arrearage and attorney's fees.
The trial court accepted a general master's determination that child support was in arrears, but the general master miscalculated the arrearage when he determined that Janet Strait, the former wife, was receiving $465 child support, when, in fact, the former wife received $647 per month.
The general master's calculation was based upon $695 (the modified monthly child support) less $465 (the monthly child support for one child before the oldest reached majority), times 12 (the number of months between the former wife's filing date of the petition for modification and the date of the hearing), resulting in an arrearage of $2,760. The correct calculation should have been the modified monthly support amount of $695, less the actual monthly amount of $647 received by the former wife for the remaining minor child, times 12, or $576.
Relying solely on affidavits submitted by the former wife, the trial court awarded attorney's fees to her as the prevailing party without affording the former husband the opportunity to rebut the propriety or amount of the award.
We remand to the trial court for the purposes of:
1. Awarding the proper amount of the arrearage of $576 to the former wife.
2. Determining whether the former wife is entitled to attorney's fees, and if so, the amount of the fees after considering the factors required by section 61.16(1), Florida Statutes (2003), Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), and after conducting a hearing to entertain evidence of the appropriate amount. See Calderon v. Calderon, 730 So.2d 400, 403 (Fla. 5th DCA 1999). If an award of fees is found to be appropriate, the trial court is instructed to consider the indefensible stance taken by the former wife on the two issues that have been reversed.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
SAWAYA, C.J., and THOMPSON, J., concur.