Opinion
No. 3D07-1023.
Opinion filed March 26, 2008.
An Appeal from the Circuit Court for Miami-Dade County, Maynard A. Gross, Judge. Lower Tribunal No. 87-2762.
Alan I. Karten, for appellant.
Jay M. Levy, for appellee.
Before COPE, RAMIREZ, and SALTER, JJ.
Alan Karten, pro se (the "former husband"), appeals a post-judgment order on his petitions to modify child support payable in a dissolution of marriage case that began over 20 years ago. Appellee, previously known as Donna Karten, is the former wife. Finding no error in the general magistrate's conclusions regarding modification of child support and the arrearages owed by the former husband (as ratified in a circuit court order), we affirm.
Background
The parties are the parents of three children born in 1978, 1981, and 1986. The former husband's prior motion to modify child support was resolved by mediation, and the pertinent terms were embodied in a final order in 1994:
We reject as frivolous the former husband's argument that the handwritten mediation agreement has any application to this appeal. The trial court granted the former wife's motion to enforce the mediation agreement and entered an order in 1994 setting forth the operative child support provisions. The former husband, at that time a Florida-licensed attorney for 19 years, did not appeal the order.
The Former Husband shall pay, as and for child support, to the Former Wife the total sum of $2,500 per month for all three children. Said sum to continue on the first of each month. Upon the first child obtaining the age of 18, or 19 if still in high school, dying or otherwise becoming emancipated, child support shall be reduced to the Child Support Guidelines for two children at the then existing time, and so forth as each child attains one of the aforementioned categories.
That order also determined that retroactive child support and arrears payable by the former husband, including attorney's fees and prejudgment interest through October 5, 1994, totaled $22,172.
In 1999, the former husband filed a motion and amended motion to modify child support based on the fact that he had become the target of a federal investigation and his income had been reduced as a result. By that point, the parties' first child had reached 18 and graduated from high school (June 1996), and so had the second child (June 1999). The parties filed pleadings indicating that total child support payments were reduced by the former husband from $2,500 per month to $1,996 per month when the first child graduated from high school, and again to $1,282 when the second child graduated. The former husband's motion, as amended, and the former wife's cross-motion for contempt were set for hearing in 2000. The hearing was later cancelled, and no stipulation or agreed order on the motions was submitted to the court.
On October 24, 2002, the husband filed a "supplemental petition for modification of child support" requesting a reduction of his obligation based on (a) "unnecessary litigation fostered by the former wife and former grandmother," (b) his obligations to another former wife in a more recent divorce, and (c) his disbarment from the practice of law by The Florida Bar. Although styled a "supplemental" petition, the circuit court properly addressed this as a new post-judgment action for modification. Two months later, the former wife filed a verified motion for contempt alleging that the former husband unilaterally reduced child support and failed to pay prior child support when due.
After a number of delays, these two motions were heard by a general magistrate in February, September, and December, 2004. The magistrate issued a report and recommendation on March 8, 2005. The former husband's exceptions to the magistrate's report were denied by a circuit judge in 2006, and the former husband's appeal followed.
First Issue: Undifferentiated vs. Allocated Child Support
We do not address all of the claims and exceptions raised by the former husband, because a number of them do not merit detailed comment.
The former husband first argues that the magistrate and circuit judge erred as a matter of law by concluding that the 1994 child support order provided for an undifferentiated child support payment (a lump sum for all three children) rather than an allocated "per child" amount. We review the lower court's interpretation of the child support provision de novo.
The former husband is correct that the child support provision in the 1994 order was for three children and contemplated a recomputation as each of the first two children turned 18, graduated from high school, died, or otherwise became emancipated. The provision is not one of those, however, that is either (a) expressly pro rata (i.e., one-third of the $2,500 per month for each child until ineligible) or (b) self-executing on the date a particular child becomes ineligible for further payment. The provision requires action by one of the parties to bring the matter back to court for a reduction. This is one hallmark of an undifferentiated payment rather than a "per child" allocation.See, e.g., Florida Dept. of Revenue v. McClung, 760 So. 2d 244 (Fla. 3d DCA 2000), and the cases cited therein.
We agree with the magistrate's interpretation, also approved by the circuit judge, that the recomputations would have required "a court hearing to determine the parties' then existing income and the applicable guidelines amount."
In State Department of Revenue ex. rel. Ortega v. Ortega, 948 So. 2d 855, 856 (Fla. 3d DCA 2007), we recently reaffirmed that a child support award ordered and paid as a lump sum, and not as "a separate amount of support for each child," is a provision for unallocated support. A parent paying unallocated support has the duty to petition the court for a reduction if such a right is claimed when one of the children attains majority. Id., (citing State, Dept. of Revenue, Child Support Enforcement v. Segrera, 661 So. 2d 922, 923 (Fla. 3d DCA 1995)). In this case, the magistrate and circuit court correctly concluded that the child support provision was unallocated, though subject to modification if appropriate as the first and second children became ineligible for support.
Second Issue: Preservation of a Claim for Recomputation
The former husband maintains that he was within his rights to recompute the monthly amount payable for child support as the first and second children reached 18 and graduated from high school (June 1996, and June 1999, respectively). He maintains that the exchange of new and then-current financial information, and a judicial modification (or stipulation and confirming order) based on the then-current guidelines, were not required. The law is otherwise.
In order to justify such a reduction, the former husband was required to file a petition for modification at or promptly after the time each child aged out of eligibility. The parties would then have exchanged current financial affidavits, and this would have permitted a recomputation of the then-current statutory child support guidelines amount for the remaining children or child.
Those steps were not taken by the former husband, however. Further, the former wife's acceptance of any amount below $2,500 per month prior to the filing of her motion for contempt does not preclude collection of the past-due amounts for the benefit of the remaining child or children. See State Dept. of Revenue v. Ortega, 682 So. 2d 589, 590 (Fla. 2d DCA 1996). Under these circumstances, the former husband was seeking a prohibited retroactive modification of his obligation.
The former husband's petition in 1999 was never brought to hearing. Any agreement should have been memorialized and submitted to the court for ratification as in 1994. The risk and consequences of failing to do so clearly fall on the obligor. In cases of unallocated support in which a reduction may be appropriate as one child attains majority, the obligor "must continue to make full support payments until he or she successfully obtains modification, and the payments vest when they are due." Dept. of Revenue ex. rel. Hall v. Hall, 699 So. 2d 1036, 1038 (Fla. 5th DCA 1997) (citing Segrera, 661 So. 2d 922).
Retroactive modification is generally precluded because the right to each payment vests as it becomes due. See Puglia v. Puglia, 600 So. 2d 484 (Fla. 3d DCA 1992) (holding that a modification of unallocated child support based on the majority of one of the children should be adjusted retroactively to the date that child becomes ineligible for further support). But see Yockey v. Yockey, 784 So. 2d 582 (Fla. 4th DCA 2001). We do not necessarily disagree with the result in Yockey when a motion for modification is filed promptly after that date and the modification process is facilitated by the movant. In this instance, however, the operative petition for modification was filed over three years after thesecond child attained her majority, and the former husband was not diligent in filing updated financial affidavits or bringing the issue to the court.
The magistrate and circuit court did, however, grant the former husband's petition for modification of October 24, 2002, and substantially reduced his child support obligation from that date through the date of the youngest child's graduation from high school in 2004. The clear, if cautionary, lesson from this case is that provisions requiring recomputation of an unallocated monthly child support amount require prompt action and diligent prosecution if a reduction is sought by the obligor and is not otherwise self-executing.
Conclusion
The former husband does not dispute the former wife's computations of the monthly child support arrearage amounts and the resultant prejudgment interest due. Finding no error in the findings and conclusions reached by the magistrate and circuit court, we affirm the judgment below in all respects.
Affirmed.
Not final until disposition of timely filed motion for rehearing.