GARY FARBER GELMAN, APPELLANT,
v.
KATIA GELMAN, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a dissolution of marriage case, the trial court awarded the former husband shared parental responsibility of three minor children, ordered substantial child support and a lump sum payment, and directed him to pay the children's private school tuition. The appellate court affirmed most of the judgment but reversed the private school tuition award because it was not pleaded and lacked requisite factual findings.
The trial court improperly ordered the former husband to pay private school tuition because the former wife did not plead for this relief in her counterpetition, there was no evidence of his agreement to pay it, and the court failed to make the required factual findings under Wilson v. Wilson regarding ability to pay and whether the expenses accorded with the family's customary standard of living and served the children's best interests.
[1] A trial court errs by granting relief not sought in the pleadings.
[2] An award of private school tuition for a child requires findings that the parent has the ability to pay, the expenses align with the family's customary standard of living…
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“[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.”
Establishes the fundamental procedural rule that the trial court cannot award relief that was not pleaded by the parties.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGary and Katia Gelman divorced. The trial court awarded them shared parental responsibility of their three minor children and incorporated the parties…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Spousal Support cases and more on FLexlaw
Gary Gelman (“Former Husband”) filed a Petition for Dissolution of Marriage. His wife, Katia Gelman (“Former Wife”), filed an Answer and Counterpetition for Dissolution of Marriage. The trial court issued a Final Judgment for Dissolution of Marriage (with Minor Children). The court incorporated the parties’ parenting and timesharing plans in its judgment and awarded shared parental responsibility of the three minor children. The court also ordered Former Husband to pay child support in the amount of $6,300.00 per month, and pursuant to the prenuptial agreement, the lump sum payment of $475,000.00 in lieu of spousal support or equitable distribution. Finally, the court directed Former Husband to pay the minor children’s private school tuition. Former Husband appeals the Final Judgment for Dissolution of Marriage.
We affirm the final judgment, except as to the trial court’s order that Former Husband pay the children’s private school tuition.
The award of a child’s private school expenses is reviewed for abuse of discretion. See Thomas v. Thomas, 776 So.2d 1092, 1094 (Fla. 5th DCA 2001). “[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999). A court may order a noncustodial *1283parent to pay for private educational expenses if it finds that the “parent has the ability to.pay for private school” and the “expenses are in accordance with the family’s customary standard of living and are in the child’s best interest.” Wilson v. Wilson, 559 So.2d 698, 700 (Fla. 1st DCA 1990) (citing Luskin v. Luskin, 492 So.2d 783, 784 (Fla. 4th DCA 1986)).
Former Husband contends that the trial court improperly ordered him to pay the children’s private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact under Wilson. Former Wife counters that the parenting plan included the financial responsibility to pay the private school tuition and that the trial court incorporated the plan into the final judgment.
Former Wife’s counterpetition did not contain a request for payment of the private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family’s customary standard of living and are in the children’s best interest. See Wilson, 559 So.2d at 700 (citing Luskin, 492 So.2d at 784).
Accordingly, we reverse and remand for further proceedings consistent with this opinion. See McDaniel v. McDaniel, 835 So.2d 1265, 1268 (Fla. 1st DCA 2003); McDonald, 732 So.2d at 506.
Affirmed in part, Reversed in part, and Remanded.
HAZOURI and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brennan v. Brennan, 122 So. 3d 923 (Fla. 4th DCA 2013)…y for private school only if it finds: (1) the parent has the ability to pay for private school, (2) the expense is in accordance with the family’s established standard of living, and (3) attendance is in the child’s best interest. Gelman v. Gelman, 24 So. 3d 1281, 1283 (Fla. 4th DCA 2010). Where the trial court has failed to make each of the required factual findings, reversal is required. McDaniel v. McDaniel, 835 So. 2d 1265, 1268 (Fla. 1st DCA 2003). The trial court failed to make findings regarding wheth…
-
Brennan v. Brennan, 184 So. 3d 583 (Fla. 4th DCA 2016)…the amount of the credit and explain how the credit was calculated. Private School Tuition A trial court’s decision on whether to order a parent to pay for a child to attend private school is reviewed for an abuse of discretion. Gelman v. Gelman, 24 So. 3d 1281, 1282 (Fla. 4th DCA 2010). A court may order a parent to pay for private educational expenses if it finds; (1) the parent has the ability to pay for private school; (2) the expenses are in accordance with" the family’s customary standard of living;…
-
Khutorsky v. Yekaterina Ilina, 75 So. 3d 848 (Fla. 3d DCA 2011)…nger child] to remain at Beth Am through the 5th grade.” “[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So. 2d 505, 506 (Fla. 4th DCA 1999); accord Gelman v. Gelman 24 So. 3d 1281 (Fla. 4th DCA 2010) (reversing an award of private school tuition where former wife’s counterpetition did not contain a request for payment of private school tuition); Jackson v. Powell, 546 So. 2d 1145, 1146 (Fla. 3d DCA 1989) (“The trial court may…
Authorities Cited
- Segarra v. State, 559 So. 2d 698 (Fla. 3d DCA 1990)
- McDONALD v. McDONALD, 732 So. 2d 505 (Fla. 4th DCA 1999)
- McDANIEL v. McDANIEL, 835 So. 2d 1265 (Fla. 1st DCA 2003)
- Luskin v. Luskin, 492 So. 2d 783 (Fla. 4th DCA 1986)
- Thomas v. Thomas, 776 So. 2d 1092 (Fla. 5th DCA 2001)