Opinion
No. 4D2022-0359
11-01-2023
Candice MURPHY f/k/a Candice Murphy Suarez, Appellant, v. Pedro SUAREZ, Appellee.
Angelena M. Conant of Angelena M. Root, P.A., Fort Lauderdale, for appellant. Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellee.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE12-002163.
Angelena M. Conant of Angelena M. Root, P.A., Fort Lauderdale, for appellant.
Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellee. Artau, J.
Candice Murphy ("Former Wife") appeals the trial court’s amended modification judgment terminating her alimony obligation to Pedro Suarez ("Former Husband"). We agree with Former Wife that the trial court abused its discretion by not making the alimony termination retroactive to the date when she filed her modification petition and by offsetting the resulting alimony arrearage with the Former Husband’s child support arrearage.
Background
The facts relating to the establishment of Former Wife’s alimony obligation to Former Husband during the parties’ divorce proceedings and the circumstances leading up to her request to terminate that obligation are set forth in our prior opinion resolving Former Husband’s appeal from the trial court’s initial modification judgment terminating Former Wife’s alimony obligation. See generally Suarez v. Suarez, 284 So. 3d 1083, 1085-86 (Fla. 4th DCA 2019). As we explained in our prior opinion, the parties’ marital settlement agreement ("MSA") established Former Wife’s alimony obligation. Id. at 1085. In the MSA, Former Wife agreed to pay Former Husband durational alimony in accordance with a set schedule of payments for a period of 92 months, or just shy of eight years. The MSA also established Former Husband’s need for alimony at $3,500 per month during the first 48 months of the durational alimony period, and $4,000 per month during the remaining 44 months. The trial court entered the final judgment dissolving the parties’ marriage and incorporating the MSA in March 2013.
One year after the parties’ divorce, Former Husband attempted to have Former Wife held in contempt for failing to make all alimony payments due under the MSA’s terms, beginning with the payment due in May of 2014. In response, Former Wife petitioned to have her alimony obligation terminated retroactive to July 2014, when she filed her petition.
In support of the modification petition, and as detailed in our prior opinion, Former Wife presented testimony and other evidence establishing a permanent, involuntary, and market-driven decline in her business income since the parties’ divorce. Specifically, Former Wife demonstrated that from 2013, when the parties divorced, until 2015, she experienced a 75 percent reduction in her business income. Id. at 1085-86.
Based on this evidence, the trial court determined that "a substantial, material, permanent, and involuntary change in circumstances warranting termination of [F]ormer [W]ife’s alimony obligation" was proven. The trial court therefore terminated Former Wife’s alimony obligation and denied Former Husband’s request to have her held in contempt for not making the alimony payments required by the MSA. Id. at 1086.
On appeal, we reversed the termination of Former Wife’s alimony obligation because the trial court failed to specifically find in the judgment, as required by section 61.08(2), Florida Statutes (2015), whether Former Husband continued to have a need for alimony and whether Former Wife had an ability to pay any amount of alimony. Id. at 1088.
On remand, and after consideration of section 61.08(2)’s enumerated factors, the trial court determined that Former Wife no longer had any ability to pay alimony and that "Former Husband’s need is unchanged." However, the trial court terminated Former Wife’s alimony obligation only as of the 2017 date of the initial modification judgment and not the 2014 date when Former Wife filed her modification petition. The trial court did not explain why termination was not being made retroactive to the date of her modification petition.
Given the chosen date for termination of the alimony obligation, the trial court determined in the amended modification judgment that Former Wife owed Former Husband a total alimony arrearage of $165,000 for alimony due prior to the date of termination, less any credit for alimony paid during the pendency of the modification proceedings. The trial court also determined that Former Husband’s child support arrearage should be offset against Former Wife’s alimony arrearage.
Analysis
Former Wife now challenges: (1) the trial court’s failure to make the termination of her alimony obligation retroactive to the date she filed her modification petition, and (2) the trial court’s determination that Former Wife’s alimony arrearage should be offset with Former Husband’s child support arrearage.
[1, 2] We review the trial court’s factual findings in support of the amended modification judgment under the abuse of discretion standard. Haeberli v. Haeberli, 310 So. 3d 108, 110 (Fla. 5th DCA 2020) (citing Suarez, 284 So. 3d at 1086). However, with respect to all legal conclusions made by the trial court in support of modification, our review is de novo. Suarez, 284 So. 3d at 1086.
1. Lack of Retroactivity of Alimony Termination
[3, 4] When a trial court modifies an alimony obligation, the presumption is the trial court will do so retroactively to the date of filing of the petition for modification unless the circumstances of the case dictate otherwise. See, e.g., Nuttle v. Nuttle, 257 So. 3d 1084, 1085 (Fla. 4th DCA 2018) (noting the presumption of retroactivity for alimony modification). Here, the trial court failed to give any reasons in the amended modification judgment for why it failed to adhere to the presumption of retroactivity in terminating Former Wife’s alimony payments. In addition, nothing in the record supports the trial court’s decision to deviate from the general rule of retroactivity or otherwise reveals why termination was not ordered to be retroactive to the date Former Wife filed her modification petition.
Therefore, we conclude the trial court abused its discretion in not adhering to the presumption of retroactivity in terminating Former Wife’s alimony obligation. See Nuttle, 257 So. 3d at 1086 (trial court abused its discretion by not making alimony modification retroactive to the date of filing of the original modification action because record did not support rejection of payor spouse’s request for retroactive application of the alimony modification); Dennis v. Dennis, 223 So. 3d 480, 481 (Fla. 1st DCA 2017) (trial court abused its discretion by failing to make alimony termination retroactive to date former wife’s alimony need ceased, where no reason for denying former husband’s request for retroactive application of the termination was provided in the record); cf. Gurdian v. Gurdian, 198 So. 3d 65, 68 (Fla. 2d DCA 2015) (trial court abused its discretion in making modification of support obligations retroactive where proof presented in support of modification demonstrated that payor’s income was sufficient to meet support obligations during the pendency of the modification petition, but not as of the date of the modification judgment).
2. Child Support Arrearage Offset
[5] Child support belongs to the child even though the right to receive such support on the child’s behalf vests in the payee parent when the support becomes due in accordance with the terms of a court order obligating the payor parent to contribute to supporting the child. See, e.g., Tinoco v. Lugo, 342 So. 3d 845, 849 (Fla. 2d DCA 2022) (" ‘[C]hild support is a right that belongs to the child.’ " (quoting Lancaster v. Lancaster, 228 So. 3d 1197, 1198 (Fla. 1st DCA 2017))); see also Friend v. Friend, 543 So. 2d 408, 408 (Fla. 4th DCA 1989) (explaining that the child support payments "vested" in payee parent "when they became due"); Onley v. Onley, 540 So. 2d 880, 880 (Fla. 3d DCA 1989) (noting the "well settled" rule "that support obligations accruing under a court order in a domestic case become vested rights of the payee and vested obligations of the payor" (citing Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938))).
[6, 7] However, a parent who owes child support arrearage may successfully offset that amount against a separate unpaid support obligation owed by the other parent "in those limited circumstances where that party can show ‘compelling equitable criteria and considerations’ justifying such set off." Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993) (quoting Chappell v. Chappell, 253 So. 2d 281, 287 (Fla. 4th DCA 1971)). That said, the trial court’s "paramount concern" in such circumstances must always be "to protect the economic welfare of the child" and "courts have disapproved child support offsets that imperil the ongoing financial support of the child." Tinoco, 342 So. 3d at 849 (quoting State, Dep’t of Health & Rehab. Servs. v. Behnke-Coolidge, 598 So. 2d 293, 294 (Fla. 2d DCA 1992)).
[8] A trial court must specify what circumstances justify an equitable offset. See id. at 849-50 (reversing decision to offset the entirety of mother’s new prospective child support obligation against father’s past child support arrearage because trial court failed to specify in its order that it "considered ‘the economic welfare of the child,’ much less [that it] made that its ‘paramount concern’ ").
[9] Here, the trial court erred by not making any findings that justify the offset. Moreover, the record is devoid of any evidence demonstrating entitlement to an offset.
Conclusion
Thus, we conclude that the trial court abused its discretion and reversibly erred in not adhering to the presumption of retroactivity in terminating Former Wife’s alimony obligation, and in ordering Former Wife’s resulting erroneous alimony arrearage be offset by Former Husband’s child support arrearage. The amended modification judgment therefore is reversed insofar as the trial court determined that Former Wife owed Former Husband any amount of alimony arrearage following the termination of her alimony obligation, retroactive to the date when Former Wife filed her modification petition. In addition, the amended modification judgment is reversed insofar as the trial court determined that Former Husband is entitled to an offset. We affirm the amended modification judgment in all other respects. The trial court is directed on remand to recalculate the amounts owed consistent with this opinion.
Affirmed in part, reversed in part, and remanded with instructions.
Klingensmith, C.J., and Forst, J., concur.