Alvarado v. Dept. of Revenue

Third District Court of Appeal
State of Florida
Opinion filed June 22, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1794
Lower Tribunal No. 06-2610
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Celso Alvarado,
Appellant,
vs.
Department of Revenue o/b/o Marisol Alvarado,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Dana A. Esposito, for appellant.
Pamela Jo Bondi, Attorney General, and William H. Branch (Tallahassee),
Assistant Attorney General, for appellee.
Before WELLS, EMAS and SCALES, JJ.
EMAS, J.
We affirm the order on appeal. We agree with Appellee that the terms of the
Marital Settlement Agreement established an unallocated lump sum to be paid by
Appellant as child support for the parties’ four children.1 Given the language of
the Marital Settlement Agreement, there was no automatic reduction or step-down
amount upon emancipation of any one of the parties’ four children. Accordingly,
Appellant was required to file a petition for modification of his child support
obligation. See State, Dept. of Rev. ex rel. Ortega v. Ortega, 948 So. 2d 855 (Fla.
3d DCA 2007) (holding that a parent paying unallocated child support must
petition the court to reduce the amount when one child reaches majority age);
Hammond v. Hammond, 492 So. 2d 837 (Fla. 5th DCA 1986) (same).
We further hold that the trial court did not err in its order modifying
Appellant’s child support obligation retroactively to the date of the filing of the
petition for modification, rather than to a date prior to the filing of the petition, as
sought by Appellant. See Cordell v. Cordell, 30 So. 3d 647, 649 (Fla. 3d DCA
2010) and cases cited (holding that, as a general rule, a modification of child
1 Appellant’s reliance upon a “Divorce Agreement,” executed prior to the initiation
of the original dissolution action and prior to execution of the Martial Settlement
Agreement, is unavailing. The Marital Settlement Agreement expressly provided
that it “supercedes any and all prior agreements between parties,” “represents a
complete resolution of all matters in dispute,” and that “neither party has made any
representations, promises or warranties to the other except as set forth in this
[Marital Settlement] Agreement.” Neither the Marital Settlement Agreement nor
the final judgment of dissolution made any reference to or incorporated the
Divorce Agreement.
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support is retroactive only to the date of the filing of a petition for modification).2
There is no record support for Appellant’s assertion that the Marital Settlement
Agreement required the court to modify the support obligation retroactively to any
earlier date.
Affirmed.
2 To the extent that the trial court was required to make factual or credibility
determinations, Appellant has failed to provide a transcript of the relevant
proceedings below or an acceptable substitute, and has otherwise failed to meet his
burden of providing a sufficient record for appellate review of the claimed error.
See Fla. R. App. P. 9.220(e); 7550 Bldg., Inc. v. Atlantic Rack & Shelving, 999
So. 2d 663 (Fla. 3d DCA 2008). The trial court’s order comes to us clothed with a
presumption of correctness, and Appellant has failed to overcome this presumption
or establish any error of law apparent on the face of the final judgment. See
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979); G & S
Dev. Corp. v. Seitlin, 47 So. 3d 893 (Fla. 3d DCA 2010); Compton v. Compton,
701 So. 2d 110 (Fla. 5th DCA 1997).
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