Posted by Nydia Streets of Streets Law in Florida Alimony
Terminating alimony in Florida usually requires the filing of a petition for modification or termination. Many times, a hearing is not held for several months or more than a year after the date the petition is filed. If the court decides alimony should be modified or terminated, it will consider retroactive termination. Does the fact that the other parent owes child support arrears affect any alimony amount owed? These were issues in the case Suarez v. Suarez, 4D2022-0359 (Fla. 4th DCA November 1, 2023).
The former wife petitioned to modify or terminate alimony based on a change in her income. The termination was previously appealed and the appellate court reversed because the trial court failed to make findings concerning whether or not the former husband continued to have a need for alimony and whether the former wife had ability to pay any amount of alimony. The trial court conducted another hearing after this appeal and held the former wife did not have an ability to pay any alimony and the former husband’s need remained unchanged. It terminated the alimony retroactive to the initial alimony termination judgment date rather than the date the former wife filed her petition to modify alimony. As a result, the trial court set alimony arrears at $165,000 owed to the former husband which it ordered to be offset by child support arrears owed to the former wife. The former wife appealed.
The appellate court reversed, holding “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.”
Regarding the child support arrears, the appellate court held “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. [. . .] 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.’ [ . . .] A trial court must specify what circumstances justify an equitable offset. 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.”
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