159 So. 3d 263
Fla. Dist. Ct. App.2015Background
- DOR filed for child support in March 2012 against Kirk Annis; Annis did not appear at the initial hearing.
- The hearing officer recommended imputing income at minimum wage; the trial court originally adopted that recommendation.
- DOR moved to vacate under Fla. Fam. Law R. 12.491(f); after that hearing the court vacated the original order and entered an amended final judgment imputing income at a median wage ($40,766/yr).
- A successor judge later entered a “Second Amended Final Judgment of Modification to Correct Error,” invoking Fla. R. Civ. P. 1.540(a) to reduce the imputed income back to minimum wage and ordered retroactive support.
- DOR appealed, arguing the successor judge lacked jurisdiction to make substantive changes under rule 1.540(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a successor judge may use Fla. R. Civ. P. 1.540(a) to reduce child-support imputation (median → minimum wage) after a predecessor judge deliberately set median wage | DOR: Rule 1.540(a) covers only clerical mistakes; the predecessor judge’s imputation was an intentional judicial decision and thus not correctable under 1.540(a) | Successor judge/trial court: The change corrected an error/clerical mistake and remedied a due-process issue at the prior hearing | Reversed — 1.540(a) does not permit substantive changes or correction of judicial errors; successor judge lacked jurisdiction to vacate the amended final judgment and reduce imputed income |
| Whether retroactive modification of vested child-support arrearages was proper | DOR: Retroactive modification of vested arrears is improper | Trial court ordered retroactive support 1/1/12–12/31/18 | Not reached on the merits — appellate court reversed on jurisdictional grounds and deemed the retroactivity issue moot |
Key Cases Cited
- Bortz v. Bortz, 675 So.2d 622 (Fla. 1st DCA 1996) (Rule 1.540(a) not for substantive changes reversing outcomes)
- Byers v. Callahan, 848 So.2d 1180 (Fla. 2d DCA 2003) (child-support amount is not a clerical mistake under rule 1.540(a))
- Malone v. Percival, 875 So.2d 1286 (Fla. 2d DCA 2004) (substantive changes to support not permissible via rule 1.540(a))
- Dep’t of Revenue ex rel. Thomas v. Thomas, 675 So.2d 1024 (Fla. 1st DCA 1996) (retroactive modification/limitations and 1.540 limits)
- Levy v. Levy, 900 So.2d 737 (Fla. 2d DCA 2005) (judicial errors must be corrected by rule 1.530 or appeal, not 1.540)
- Pratt v. Gerber, 330 So.2d 552 (Fla. 3d DCA 1976) (fundamental error where successor judge reversed predecessor’s final judgment)
- In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980) (distinguishing clerical mistakes from judicial errors)