Biddle v. Salozzo

District Court of Appeal of Florida

Biddle v. Salozzo

522 So. 2d 101, 13 Fla. L. Weekly 758, 1988 Fla. App. LEXIS 1152

CourtDistrict Court of Appeal of Florida

DecidedMarch 22, 1988

DocketNo. 87-1901

StatusPublished

Cited by2 cases

This text of 522 So. 2d 101 (Biddle v. Salozzo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biddle v. Salozzo, 522 So. 2d 101, 13 Fla. L. Weekly 758, 1988 Fla. App. LEXIS 1152 (Fla. Ct. App. 1988).

Pincite

Opinion

BASKIN, Judge.

In this appeal, Betty Biddle¹ seeks reversal of the trial court's order denying her petition for support and payment of arrear-ages.

Appellant Biddle [wife] and appellee Peter Salozzo [husband] were married in 1971 and have a minor child bom during the marriage. In June 1972 the parties signed a property settlement agreement which was incorporated into the Final Judgment of Dissolution and entered in December 1972, in Florida. Although the final judgment failed to mention the child and contained no provision for custody or support, the property settlement agreement includes provisions² concerning the custody and [103]*103support of the unborn child.³

The wife moved to Kentucky, where, in 1986, she filed an action under the Revised Uniform Reciprocal Enforcement Support Act [RURESA] seeking child support and payment of child support arrearages. The husband appeared at the hearing and testified; the state appeared on behalf of the wife. Denying the wife’s petition, the court entered an Order on Summons finding that the husband “appeared and testified that the child is sixteen (16) and disputed paternity [and] ... the Dade County Final Judgment of Dissolution and Settlement Agreement provides for $20.00 per week child support for the unborn child.” Apparently, the trial court based its ruling on the wife’s delay in bringing the action⁴ and the husband’s confusion concerning paternity.⁵ The wife appeals. We reverse.

The order appealed discloses no rationale for the court’s conclusion, and the record contains no supporting evidence for the court’s decision. These omissions hamper meaningful appellate review. See Ashe v. Ashe, 509 So.2d 1146, 1148-49 (Fla. 1st DCA 1987).

Although the court found that the husband disputed paternity, the court did not find the evidence sufficient to overcome the presumption that appellee is the father of the child. The absence of such a ruling renders the final judgment determinative of the issue of paternity and bars relit-igation. See State, Dep’t of Health & Rehabilitative Servs. v. Wright, 498 So.2d 1008 (Fla. 2d DCA 1986); Decker v. Hunter, 460 So.2d 1014 (Fla. 3d DCA 1984); Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981); see also Davis v. Dieujuste, 496 So.2d 806, 809-10 (Fla.1986). Cf. Cox v. Cox, 493 So.2d 83 (Fla. 1st DCA 1986).

The trial court’s implied reliance on the doctrine of laches to deny enforcement of payment of arrearages is error; the husband did not plead or prove the affirmative defense of laches. See Wood v. Hunter, 504 So.2d 553 (Fla. 4th DCA 1987); State, Dep’t of Health & Rehabilitative Servs. v. Canaday, 473 So.2d 273 (Fla. 2d DCA 1985); Newman v. Newman, 459 So. 2d 1129 (Fla. 3d DCA 1984), review denied, 466 So.2d 218 (Fla.1985); O’Brien v. O’Brien, 424 So.2d 970 (Fla. 3d DCA 1983).

Furthermore, the trial court’s order does not resolve questions pertaining to the husband’s child support obligations and enforcement of vested arrearages. Although the trial court has continuing jurisdiction to modify child support payments when a change in circumstances has been demonstrated, see Martinez v. Martinez, 383 So. 2d 1153 (Fla. 3d DCA 1980), such circumstances were not presented by petition or proof. See Hammond v. Hammond, 492 So.2d 837, 839 (Fla. 5th DCA 1986); Johnson v. Johnson, 489 So.2d 1193 (Fla. 3d DCA 1986); Sweetland v. Gauntlett, 460 [104]*104So.2d 570 (Fla. 3d DCA 1984); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977).

Finally, the record does not contain a certified copy of the Final Judgment of Dissolution and the property settlement agreement dated June 20, 1972; only an undated agreement is before us.

Reversed and remanded for reconsideration of the wife’s petition for support and for arrearages and for the entry of an order containing appropriate findings supported by evidence.

²

. The property settlement agreement states:

3.The Wife does hereby allege that she is presently pregnant and that the husband is the father of her child to be born. The husband does hereby agree to pay to the Wife the sum of Twenty ($20.00) Dollars per week, so long as she is pregnant and he shall continue to make these payments until such time as the child to be born will reach maturity or will have become otherwise emancipated. In the event the wife is not pregnant or should her pregnancy be terminated, said support payments shall cease immediately.

The Husband shall claim the child to be born as a dependent, for income tax purposes, [103]*103so long as all child support payments are made.

4. The Wife shall have permanent custody and control of the minor child to be born to her, with reasonable rights of visitation to be granted to the Husband.

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