GARY STOUT v. TERRY STOUT

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GARY STOUT,
Appellant,
v.
TERRY STOUT,
Appellee.
No. 4D18-2296
[May 1, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan F. Greenhawt, Senior Judge; L.T. Case No.
FMCE05-005189 (40/90).
Philip A. Duvalsaint of Philip A. Duvalsaint, PLLC, Fort Lauderdale, for
appellant.
Terry Stout, Newark, Delaware, pro se.
DAMOORGIAN, J.
Appellant, Gary Stout, appeals an order finding that he owes
$21,224.18 in child support arrearages for his three children. Appellant
argues that the court’s arrearage calculation was based on its incorrect
conclusion that Appellant’s support obligation was unallocated amongst
his children. We agree and reverse.
Appellant and Appellee, Terry Stout, were divorced in a final judgment
of dissolution entered in 2005. At that time, the parties had three minor
children. In conjunction with the dissolution of their marriage, the parties
executed a Marital Settlement Agreement (“MSA”) which was incorporated
into and made part of the final judgment of dissolution. The MSA provided,
in pertinent part, that Appellant would pay a monthly sum of child support
“continuing as each child reaches the age of 18, or graduates high school,
whichever is later.” The court later entered a modification order increasing
Appellant’s monthly obligation.
Appellant fell into arrears on his child support obligations and, as a
result, his wages were garnished continuously until well after the youngest
child graduated high school at the age of nineteen. Eventually, Appellant
filed a motion to close his child support case, arguing that, after
accounting for an automatic one-third reduction of his obligation upon the
emancipation of each of his older children, Appellant had more than fully
paid off his arrearage amount. After reviewing the MSA and modification
order, the court concluded that Appellant’s child support obligation was
unallocated between the parties’ children and calculated Appellant’s
arrearage amount based on the full monthly sum to the date the youngest
child graduated high school.
“It is well established that a trial court may, in its discretion, award a
lump sum, rather than a separate amount of support for each child . . . .”
State, Dep’t of Revenue, Child Support Enf’t v. Segrera, 661 So. 2d 922, 923
(Fla. 3d DCA 1995). When the court makes such an unallocated award,
the obligor “has the duty to petition the court to reduce the amount when
one child attains majority.” Id. “[T]here is no automatic reduction
retroactive to the qualifying event . . . .” Thompson v. Watts, 111 So. 3d
986, 990 (Fla. 1st DCA 2013). If, however, the child support award is
allocated per child, the obligor is entitled to retroactive reduction to the
date of a qualifying event. See Fla. Dep’t of Revenue ex rel. McClung v.
McClung, 760 So. 2d 244, 246 (Fla. 3d DCA 2000). Therefore, the
controlling question in this case is whether the child support award was
an aggregate award for all three children or an award allocated per child.
This turns on the language of the MSA.
On this point, this Court’s decision in Karnbach v. Karnbach, 971 So.
2d 1031 (Fla. 4th DCA 2008) is controlling. There, the parties entered into
an MSA wherein the former husband agreed to pay a monthly sum of child
support for his two minor children which would “continue until ‘each child
reaches nineteen (19) years of age, graduates high school, dies or becomes
emancipated.’” Id. at 1032 (emphasis omitted). Based on this language,
we held that the child support was allocated and thus subject to
retroactive reduction upon a qualifying event for the older child. Id. The
language contained in the MSA in this case is analogous to the language
contained in the MSA quoted by Karnbach. Thus, pursuant to the MSA,
Appellant’s child support obligations were allocated amongst his children.
Despite this conclusion, Appellant is not entitled to an automatic
proportional reduction retroactive to the qualifying date for each of his
older children. In Lehman v. Department of Revenue ex rel. Lehman, 946
So. 2d 1116, 1119 (Fla. 4th DCA 2006), this Court held that where the
language used in an agreement providing for allocated child support “is
not clear as to the exact amount the child support is to be reduced by
upon a child’s emancipation,” a hearing is required to fix child support for
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the remaining children in accordance with the guidelines set forth in
section 61.30 of the Florida Statutes. The MSA here is silent as to the
amount Appellant’s support obligation would reduce by upon the
emancipation of each child. Accordingly, we reverse and remand with
instructions to hold an evidentiary hearing to determine the correct
amount of arrearages and the appropriate reduction in child support
payments.
Reversed and remanded.
GERBER, C.J., and CONNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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