Payne v. Department of Revenue Ex Rel. Gutierrez , 2016 Fla. App. LEXIS 7712 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOSHWA BRIAN PAYNE,
Appellant,
v. Case No. 5D15-1336
DEPARTMENT OF REVENUE
O/B/O ANNA G. GUTIERREZ,
Appellee.
________________________________/
Opinion filed May 20, 2016
Appeal from the Circuit Court
for Putnam County,
Scott C. Dupont, Judge.
Susanna S. Quesenberry, of Mowrey,
Shoemaker, Beardsley, PL, St. Augustine,
for Appellant.
Carrie R. McNair, Assistant General
Counsel, Florida Department of Revenue,
Tallahassee, for Appellee.
WALLIS, J.
Joshwa Payne ("Appellant") appeals the lower court's order awarding retroactive
child support for his minor child, S.L.W., upon petition by the Florida Department of
Revenue O/B/O Anna G. Gutierrez, S.L.W.'s maternal grandmother ("Appellee").
In 2002, the lower court entered an order requiring Appellant to make child support
payments in S.L.W.'s favor, including retroactive support payments for the previous 12
months' arrears. On August 18, 2014, after S.L.W. left her mother's residence and custody
to reside with Gutierrez, Appellee filed a petition to establish child support. The trial court
granted the petition, awarding support and finding Appellant "responsible for retroactive
child support from 08/18/2012 through 12/20/2014."1
"The standard for reviewing an award of retroactive child support is whether the
trial court abused its discretion." Ditton v. Circelli, 888 So. 2d 161, 162 (Fla. 5th DCA
2004) (citing Smith v. Smith, 872 So. 2d 397, 399 (Fla. 1st DCA 2004)). The applicable
statute provides:
In an initial determination of child support, whether in a
paternity action, dissolution of marriage action, or petition for
support during the marriage, the court has discretion to award
child support retroactive to the date when the parents did not
reside together in the same household with the child, not to
exceed a period of 24 months preceding the filing of the
petition, regardless of whether that date precedes the filing of
the petition.
§ 61.30(17), Fla. Stat. (2014) (emphasis added). "[W]hen the statute is clear and
unambiguous, courts will not look behind the statute's plain language for legislative intent
or resort to rules of statutory construction to ascertain intent." Kasischke v. State, 991 So.
2d 803, 807 (Fla. 2008) (quoting Borden v. East-European Ins. Co., 921 So. 2d 587, 595
(Fla. 2006)). Thus, based on the plain language of the statute, a trial court may award
retroactive support only in the first determination of child support concerning a particular
1 Although the trial court later corrected the error of awarding support for the period
before Gutierrez had custody of S.L.W., it did not otherwise alter the remainder of the
retroactive support award.
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child. In this case, the trial court abused its discretion by awarding retroactive support
after the initial determination of child support. See § 61.30(17), Fla. Stat.; Ditton, 888 So.
2d at 162. Accordingly, we reverse with regard to only the order's award of retroactive
support and affirm in all other respects.
AFFIRMED in part; REVERSED in part.
SAWAYA and LAMBERT, JJ., concur.
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