Summary
holding that court could not enter child support award where it was not requested in petition for custody
Summary of this case from Cordell v. CordellOpinion
No. 98-53
Opinion filed July 1, 1998.
An appeal from the Circuit Court for Okaloosa County.
G. Robert Barron, Judge.
Kenneth L. Brooks, Jr. of Clay, Fitzgerald Brooks, P.A., Milton, for Appellant.
Aaron B. Wentz of Peek Wentz, Niceville, for Appellee.
Appellant, Valerie A. Owens, the natural mother, appeals an order of the trial court granting the petition for grandparental custody filed by appellee, Myrtis M. Eshelman, the paternal grandmother, and awarding child support to her. We affirm the award of custody without comment, but reverse the award of child support, because Eshelman neither pled nor proved need or the mother's ability to pay.
At the hearing on Eshelman's motion for contempt against Owens for failing to pay child support following the final judgment, the trial court acknowledged that there had been no evidence presented on this issue. Moreover, Eshelman did not include a request for child support anywhere in her petition for custody. In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings. See Cortina v. Cortina, 98 So.2d 334 (Fla. 1957) (trial court erred in relieving father from paying child support when father sought only contempt order for denial of visitation, and child support was neither pled nor litigated). Accord Sohacki v. Sohacki, 657 So.2d 41 (Fla. 1st DCA 1995); Smith v. Smith, 363 So.2d 832 (Fla. 1st DCA 1978). See also Connolly v. Connolly, 448 So.2d 641, 642 (Fla. 4th DCA 1984) (error to award alimony, child support, custody, and visitation absent pleading, prayer, or other predicate requesting such relief, and "error was compounded when the husband was found in contempt of such order"). Accordingly, we reverse the order awarding child support, without prejudice to Eshelman seeking child support at a later date.
AFFIRMED IN PART, REVERSED IN PART and REMANDED with directions to the trial court to strike that portion of the final order awarding child support to appellee.
BARFIELD, C.J., and ERVIN, J., and SMITH, LARRY G., Senior Judge, CONCUR.