MARCI NIERENBERG, APPELLANT,
v.
RICHARD NIERENBERG, APPELLEE
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In a child support modification case, the Florida Fourth District Court of Appeal reversed the trial court's calculation of the father's net monthly income, which improperly deducted $1,075 in temporary child support payments and an unexplained $73, and also reversed the denial of retroactive child support, holding that retroactivity is the rule rather than the exception in child support modifications.
The deductions of $1,075 and $73 from the father's income calculation were improper and reversed because the father provided no explanation for them. The denial of retroactive child support was also reversed because retroactivity is the rule rather than the exception in child support modifications, and the trial court's reasons for denying it were insufficient.
[1] A trial court errs in child support calculations when it deducts amounts for temporary child support without explanation.
[2] A trial court errs in child support calculations when it deducts amounts for no explicable reason.
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Join FLexlaw to unlock all legal intelligence“When child support is modified, retroactivity is the rule rather than the exception.”
Establishes the legal standard that retroactive child support should be awarded in modification cases unless specific justified exceptions apply.
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Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved in 1992 with the father receiving primary residential custody. The mother became primary residential custodian in …
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KLEIN, J.
In calculating appellee father’s net monthly income for purposes of determining child support, the trial court deducted $1,075 which was listed by the husband as what he had been paying as temporary child support for the same children. The court also deducted an additional seventy-three dollars for no explicable reason. Appellant mother moved for rehearing, pointing out these errors, without success, and she now appeals. The father provides no explanation for the court’s deduction of these two items, and we accordingly reverse.
The mother also argues that the trial court erred in failing to require the father to pay child support retroactive to the petition for modification. The marriage of the parties was dissolved in 1992, and the father was given primary residential custody. The mother, by agreement, became primary residential custodian in October 1997; however, the father, a phy-' sician, paid little or no child support until he was ordered to do so in mid-1998. In denying the retroactive child support the court gave the following reason:
The animosity that is there, the difficulty in visitation that is created by the actions of the parties which results in the needless expenditure of the attorney’s fees for court appearances, some of which were generated unnecessarily when the Former Wife or her attorney did not even appear for scheduled hearings, and while the overall ability to pay was present and the need was also present during the time from the filing of the petition forward, the Court still firmly believes that it would be inappropriate to tax retroactive child support and that the established amount of child support as set forth in the order should proceed from the date of the order forward and should not be retroactive.
When child support is modified, retroactivity is the rule rather than the exception. DeSantis v. Smith, 634 So. 2d 796 (Fla. 4th DCA 1994). Although the award of retroactive child support is discretionary, appellate courts routinely find it to be error to not award it. Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992) and cases cited.
The father has cited no authority which would support denial of retroactive child support, and the reasons given by the trial judge do not support it either. We therefore reverse and remand for child support to be recalculated and made retroactive to the date in October 1997 when the mother became primary residential custodian.
FARMER and STEVENSON, JJ., concur.
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Levi v. Levi, 780 So. 2d 261 (Fla. 3d DCA 2001)…annot properly review the order on appeal. The trial court also improperly refused to make the increase in child support retroactive. When child support is modified, retroactivity is the rule rather than the exception. See Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000). Although the award of retroactive child support is discretionary, it is an abuse of discretion not to make the award retroactive where the need for the support and the ability of the parent to pay exists at the time the pe…
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Miller v. Miller, 826 So. 2d 480 (Fla. 1st DCA 2002)…ormer wife filed her counterpetition seeking an increase in child support. “When child support is modified, retroac-tivity is the rule rather than the exception.” Levi v. Levi, 780 So. 2d 261, 263 (Fla. 3d DCA 2001) (citing Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000)). The trial court’s stated rationale for declining to order retroactive child support lacks any basis in the court’s findings, and does not explain why a monthly amount already (perhaps excessively) reduced to allow for the…
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Ferraro v. Ferraro, 971 So. 2d 826 (Fla. 3d DCA 2007)…rcuit judge nor the majority of this panel have addressed this discrepancy. I believe the trial court abused its discretion in not correcting this error and in not ordering the father to pay $12,000 per month retroactively. Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000) (finding that the trial court erred in failing to make child support modification retroactive to date of petition for modification; retroactive award in such cases is the rule rather than the exception). See, e.g., Brock v.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992)
- Patterer v. Builders Supply House, Inc., 634 So. 2d 796 (Fla. 3d DCA 1994)
- Desantis v. Smith, 634 So. 2d 796 (Fla. 4th DCA 1994)