103 So. 3d 968
Fla. Dist. Ct. App.2012Background
- Dissolved marriage in Oct 2003; wife awarded primary custody and husband ordered to pay $1,400/month in child support.
- Husband consistently paid on time and occasionally provided extra payments for children’s needs, totaling about $23,000; funds used for current expenses, not saved for future needs.
- Husband stopped the extra payments in March 2009.
- Wife filed supplemental petition for modification on Aug 31, 2009 alleging increased needs and income; husband denied increase.
- Three evidentiary hearings (Sept 2010, Mar 2011, Nov 2011) led to a Jan 13, 2012 final order increasing support to $1,882 and making several other rulings.
- Court found past overpayments created an undue hardship to require repayment and addressed retroactivity, medical and orthodontic expense allocations, and attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credit for voluntary overpayments | Wife: credit to husband for past overpayments not permitted. | Husband: entitled to credit against future support due to overpayments. | Credit reversed; no future-offset allowed. |
| Retroactivity of increased support | Wife: retroactive increase from petition filing date. | Husband: no retroactivity implied by ongoing payments. | Retroactive increase awarded from petition filing date. |
| Unreimbursed medical expenses | Wife: expenses should be split per income proportion. | Husband: expenses split 50/50 per agreement. | Maintain 50/50 split per consent judgment though generally warrants proportionate sharing. |
| Orthodontic expenses included in health expenses | Wife: orthodontics should be treated as medical expenses shared equally. | Husband: orthodontics governed by 100% obligation in prior judgment. | Erred to include orthodontics in health expenses; revert to 100% husband for orthodontics. |
| Attorney’s fees | Wife: she is entitled to fees due to disparity. | Husband: no substantial disparity; fees denied. | Denial of fees reversed; remand for reconsideration with proper income calculation. |
Key Cases Cited
- Hubshman v. Hubshman, 379 So.2d 670 (Fla. 4th DCA 1980) (overpayment credit not allowed where no agreement that overpayments were an advance on future obligations)
- Martinez v. Martinez, 383 So.2d 1153 (Fla. 3d DCA 1980) (homo allows no refund of voluntary overpayments treated as a loan absent agreement)
- Wooten v. Wooten, 510 So.2d 1033 (Fla. 2d DCA 1987) (remand on recoupment of child support overpayments for equity)
- Zinovoy v. Zinovoy, 50 So.3d 763 (Fla. 2d DCA 2010) (non-covered medical expenses generally allocated in same proportion as support)
- Pelton v. Pelton, 617 So.2d 714 (Fla. 1st DCA 1992) (income calculations for fees must exclude support payments and include received alimony)