CRISTINA KIRTLEY v. Florida Department of Revenue , 2017 Fla. App. LEXIS 9651 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CRISTINA KIRTLEY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1379
FLORIDA DEPARTMENT OF
REVENUE and EUGENE
LEWIS KIRTLEY, IV
Appellees.
_____________________________/
Opinion filed July 6, 2017.
An appeal of an order of the Division of Administrative Hearings.
Lawrence P. Stevenson, Judge.
Cristina Kirtley, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Carrie R. McNair, Assistant Attorney General,
Child Support Enforcement, Tallahassee, for Appellee Florida Department of
Revenue.
PER CURIAM.
In this case before us, Appellant appeals the lower court’s final
administrative support order denying retroactive child support.
Eugene and Cristina Kirtley were married and had a son who was less than
two years of age when they separated. After their separation, Mr. Kirtley provided
child support totaling $2,720.25. In its proposed administrative support order, the
Department of Revenue (the Department) proposed current child support and also
$3,342.60 in retroactive child support to make up the difference between what
Mr. Kirtley had paid and what he should have been paying under the guidelines
provided in section 61.30, Florida Statutes (2016). Mr. Kirtley requested an
administrative hearing, challenging the Department’s calculation of his income.
At the hearing, the lower court found the following facts: The total monthly
support the child needed was $845.84; Mr. Kirtley earns $2,385.46 per month,
which constituted 68% of the family’s income; and he has the ability to pay child
support. Based on those facts and pursuant to section 61.30, Florida Statutes, the
lower court imposed $467 per month in child support on Mr. Kirtley, but failed to
award retroactive child support, on the grounds that Mrs. Kirtley “waived any
retroactive support payments due by [Mr. Kirtley].”
The standard of review on a lower court’s denial of an award of retroactive
child support is abuse of discretion. Smith v. Smith, 872 So. 2d 397, 399 (Fla. 1st
DCA 2004). The issue before us is whether the lower court abused its discretion
by failing to award retroactive child support. Section 61.30(17), Florida Statutes,
provides guidelines for awarding child support retroactively, and does not require
the parent receiving child support to attend the hearing.
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“A trial court abuses its discretion when it fails to award retroactive support
. . . where there is a need for child support and an ability to pay.” Leventhal v.
Leventhal, 885 So. 2d 919 (Fla. 3d DCA 2004); Bardin v. Dep’t of Revenue, 720
So. 2d 609 (Fla. 1st DCA 1998). Specifically, the trial court abuses its discretion
by failing to award retroactive child support on the grounds that the mother waived
her right to such support. Beal v. Beal, 666 So. 2d 1054, 1054 (Fla. 1st DCA 1996)
(citing Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979), which held
that “parents may not contract away the rights of their child for support,” and
reasoning that the mother may not waive the child’s right to retroactive support).
Here, the lower court determined that, although the child was in need of
support and the father had the ability to pay, the mother waived any right to
retroactive child support by not attending the hearing. Thus, we hold that the
lower court abused its discretion by failing to award retroactive child support.
REVERSED and REMANDED.
B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.
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