Bordonaro v. Bordonaro

273 So.3d 225

Christopher Joseph BORDONARO, Former Husband, Appellant,

v.Emily Joy BORDONARO, Former Wife, Appellee.

No. 1D18-4091

District Court of Appeal of Florida, First District.

May 21, 2019

James Pratt O'Conner, Fernandina Beach, for Appellant.

No appearance for Appellee.

Per Curiam.

Christopher Joseph Bordonaro appeals the trial court's order granting his former wife's Motion for Contempt/Enforcement and Motion for Attorney's Fees and Costs. The motion alleged that Appellant neglected his child support obligations under the Consent Final Judgment of Dissolution of Marriage (Final Judgment). We agree that the trial court adjudicated issues during the contempt hearing that were not properly pleaded or noticed and improperly granted attorney's fees to the former wife. We reject all of Appellant's other claims.

The increase of Appellant's monthly child support payments is improper for two reasons. First, it did not use the requisite separate pleading, financial affidavits, or worksheet. §§ 61.14, 61.30(14), Fla. Stat.; Fla. Fam. L.R.P. 12.285(k). Second, a trial court cannot modify child support on a party's motion for contempt for nonpayment of child support. McGrath v. Caron , 8 So.3d 1253 (Fla. 4th DCA 2009). As a result, the arrearages imposed by the trial court based on the improperly modified child support obligations were also improperly imposed.

Moreover, the trial court's order found that Appellant effectively abandoned his minor child. A motion for contempt or enforcement for failure to meet one's support obligations is not the proper vehicle to request a finding of abandonment. Abandonment must be established by clear and convincing evidence and is usually requested through a petition for termination of parental rights. See T.S. ex rel. D.H. v. Dep't of Children & Families , 969 So.2d 494, 495 (Fla. 1st DCA 2007).

Finally, the trial court erroneously granted Appellant's former wife's request for attorney's fees without considering or making any findings regarding either party's need or ability to pay. See Fulmer v. Fulmer , 961 So.2d 1081, 1082 (Fla. 1st DCA 2007) ; Perrin v. Perrin , 795 So.2d 1023, 1024 (Fla. 2d DCA 2001).

Accordingly, we reverse and remand so that the trial court can 1) strike the modified increase in child support and related arrearages and make the requisite findings supporting the enforcement of Appellant's original child support obligation pursuant to the Final Judgment; 2) strike its finding that Bordonaro effectively...