GREGORIO DIAZ, APPELLANT,
v.
LYNNE DIAZ, APPELLEE
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Gregorio Diaz appeals a final judgment dissolving his marriage and ordering him to pay $40 per week in child support. The appellate court reversed and remanded because the trial court failed to create a record containing evidence of the child's needs and the father's ability to pay before ordering support.
Yes. The trial court erred by failing to require introduction of evidence as to the child's needs and the father's ability to pay before ordering child support. The judgment is reversed and remanded with directions that the trial court require such evidence before entering a final judgment on support.
[1] A court must have evidence of a child's needs and a parent's ability to pay before ordering child support.
[2] A judgment dissolving a marriage requires the submission of evidence to support the court's equitable decisions.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The sole point presented on the appeal is that the trial court erred when it ordered the father to pay child support when no evidence was presented as to the needs of the child or the father's ability to support the child.”
States the primary legal issue on appeal regarding the lack of evidentiary support for the child support order.
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Join FLexlaw to unlock all legal intelligenceGregorio Diaz was the petitioner in a dissolution of marriage action against Lynne Diaz. A minor child was six months old at the time of the petition …
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PEARSON, TILLMAN (Ret.), Associate Judge.
The appellant, Gregorio Diaz, appeals a final judgment dissolving his marriage to Lynne Diaz and requiring him to pay $40 per week for support of the minor child of the parties. He was the petitioner and is well pleased with the dissolution of the marriage and with the provision granting to him reasonable rights of visitation with the child. The child was six months of age at the time of the filing of the petition. He resides with his mother in Southampton, England.
The sole point presented on the appeal is that the trial court erred when it ordered the father to pay child support when no evidence was presented as to the needs of the child or the father’s ability to support the child. See Page v. Page, 371 So. 2d 543 (Fla. 3d DCA 1979).
We commend the trial judge upon the exercise of judicial conscience. The granting of a judgment dissolving a marriage is not a ministerial act. If it were, it could be signed by the clerk. A spouse who invokes the jurisdiction of a court of equity to resolve his or her marital difficulties must submit to the equitable doctrine that he who seeks equity must stand before the court with “clean hands” and “he who seeks equity must do equity.” Williamson v. Williamson, 367 So. 2d 1016 (Fla.1979).
In the instant case, the trial court correctly applied the above principles but failed to require the inclusion in the record of evidence upon which it could properly exercise its discretion in the matter of child support. See Yontz v. Yorkunas, 358 So. 2d 91 (Fla. 2d DCA 1978). Where there is such an insufficiency of evidence on some material point as to prevent the entry of a just decree, and it appears from the record that the required evidence is available, the cause may be remanded with directions to take further evidence on that point. Chapman v. St. Stephens Protestant Episcopal Church, Inc., 105 Fla. 683, 145 So. 757 (1933); Fuller v. Fuller, 23 Fla. 236, 2 So. 426 (1887); Atlantic & Gulf Properties, Inc. v. Palmer, 109 So. 2d 768 (Fla. 3d DCA 1959). We, therefore, reverse the judgment and remand the cause with directions that prior to the entry of judgment, the trial court shall require the introduction of evidence as to the needs of the minor child and the petitioner’s ability to pay.
Reversed and remanded.
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The Dep't OF Health & Rehabilitative Servs. v. Thomas, 477 So. 2d 1053 (Fla. 5th DCA 1985)…on or inaction of the grandmother and HRS. We note here that there has never been a proper determination of the father’s ability to pay child support. Without such a determination, an award of child support cannot be upheld on appeal. Diaz v. Diaz, 418 So. 2d 1064 (Fla.3d DCA 1982); Yontz v. Yorkunas, 358 So. 2d 91 (Fla.2d DCA 1978). The father’s mere admission on cross-examination that he “has had the [*1057] ability to support these children since ’75” does not sufficiently reveal the extent of that ability…
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Melida A. Demorizi v. Nestor M. Demorizi, 851 So. 2d 243 (Fla. 3d DCA 2003)…eposit which is shown by the evidence to be properly alio- [*246] cable to her self-employment income for 1999, the tax year in question, if any. He who seeks equity must do equity. Williamson v. Williamson, 367 So. 2d 1016 (Fla.1979); Diaz v. Diaz, 418 So. 2d 1064 (Fla. 3d DCA 1982). Equity delights to do justice and not by halves. Skillman v. Baker, 142 So. 2d 113, 114 (Fla. 1st DCA 1962). The record does not currently contain sufficient information to make such an allocation.1 While “piecemeal litigation”…
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Powell v. Smith, 498 So. 2d 687 (Fla. 3d DCA 1986)…1975), notice, Gilbert v. Gilbert, 472 So. 2d 1317 (Fla. 2d DCA 1985); Kranis v. Kranis, supra; Sikes v. Sikes, 286 So. 2d 210 (Fla. 1st DCA 1973), or evidence of waiver or laches, Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983); Diaz v. Diaz, 418 So. 2d 1064 (Fla. 3d DCA 1982); Yontz v. Yontz, 358 So. 2d 91 (Fla. 2d DCA 1978). Upon remand, the trial court shall either enter a judgment for the arrearages or entertain a proper petition for relief therefrom. The order of attorney’s fees is also reversed,…
Authorities Cited
- Chapman v. St. Stephens Protestant Episcopal, 105 Fla. 683 (Fla. 1931)
- Williamson v. Veva C. Williamson, 367 So. 2d 1016 (Fla. 1979)
- Fuller v. Abbe A. Fuller, 23 Fla. 236 (Fla. 1887)
- Atl. & Gulf Props., Inc. v. Palmer, 109 So. 2d 768 (Fla. 3d DCA 1959)
- Page v. Michel Douglas Page, 371 So. 2d 543 (Fla. 3d DCA 1979)
- Yontz v. Yorkunas, 358 So. 2d 91 (Fla. 2d DCA 1978)