Leibowitz v. Leibowitz

Feb 3, 1993
92-0904
Reporters:
,
Before:
Anstead, Gunther, Warner (per curiam)

Barbara Markley, Support Enforcement Division of Broward County, Fort Lauderdale, for appellant.

Robert B. Resnick, Boca Raton, for appellee.

PER CURIAM.

We reverse because the trial court erred in denying the husband‘s motion filed pursuant to Florida Rule of Civil Procedure 1.540(b) seeking relief from an order dated January 23, 1992, modifying child support payments and visitation rights.

We agree with the husband‘s contention that the trial court erred in denying his motion for relief because the husband set forth excusable neglect and a meritorious defense. Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1116 (Fla. 1980); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983). Furthermore, the trial court erred in modifying the wife‘s child support obligation and visitation rights because the wife filed no pleading requesting such modification. Sentz v. Sentz, 548 So. 2d 297 (Fla. 4th DCA 1989). Therefore, the trial court lacked jurisdiction to modify the child support payments and visitation. Accordingly, we reverse the order denying the husband‘s motion for relief, and we remand to the trial court to vacate the order dated January 23, 1992.

REVERSED AND REMANDED.

ANSTEAD, GUNTHER and WARNER, JJ., concur.