Christopher Joseph Bordonaro, Former Husband v. Emily Joy Bordonaro, Former Wife , 273 So. 3d 225 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4091
_____________________________
CHRISTOPHER JOSEPH
BORDONARO, Former Husband,
Appellant,
v.
EMILY JOY BORDONARO, Former
Wife,
Appellee.
_____________________________
On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
May 21, 2019
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 abandoned his minor child; and 3) make the
appropriate findings regarding both parties’ ability to pay and
need for attorney’s fees.
REVERSED and REMANDED.
WOLF, KELSEY, and WINOKUR, JJ., concur.
2
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James Pratt O’Conner, Fernandina Beach, for Appellant.
No appearance for Appellee.
3