Posted by Nydia Streets of Streets Law in Florida Child Support
What defenses are available to a petition to modify child support? Certain defenses must be made in writing, which are called affirmative defenses. Failure to assert affirmative defenses in writing usually means they are waived. This was an issue in the case R.B. v. B.T., 2D21-747 (Fla. 2d DCA January 13, 2023).
The father filed a petition for modification of child support. A hearing on the petition was held at which the father presented evidence as to his involuntary unemployment and there were stipulations between the parties as to credits to the father for past child support and that daycare would be addressed separately from the child support guidelines. The court did not include in its order these stipulations or findings concerning the father’s income. Instead, it focused on the father’s unclean hands, which is an affirmative defense not pled by the mother. The court denied the father’s petition based on the unclean hands, and he appealed.
The appellate court reversed, holding “[T]he record shows that the issue of unclean hands was not properly before the magistrate. The Mother neither raised it as an affirmative defense in a written response to the Father's petition nor argued it at the hearing on that petition. Cf. White v. White, 3 So. 3d 400, 402 (Fla. 2d DCA 2009) (reversing order denying petition to modify alimony obligation based on defense of unclean hands where it was not pled as an affirmative defense, raised in a pretrial motion, or tried by consent).”
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