Jean Max Mathieu v. Department of Revenue, Etc.

• Court: District Court of Appeal of Florida
• Decided: March 4, 2026
• Docket: 3D2025-0558
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 4, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0558 Lower Tribunal No. 21-DR-142-K ________________

Jean Max Mathieu, Appellant,

vs.

Department of Revenue, etc., et al., Appellees.

An Appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge.

Jean Max Mathieu, in proper person.

James Uthmeier, Attorney General, and Sarah C. Prieto, Assistant Attorney General (Fort Lauderdale), for Florida Department of Revenue.

Before GORDO, LOBREE and BOKOR, JJ.

GORDO, J. Jean Max Mathieu appeals the trial court’s ratification of the general

magistrate’s order in favor of Bedjine Mathieu. We have jurisdiction. Fla. R.

App. P. 9.030(b)(1)(A). We affirm in part and reverse in part.

“The standard of review on a denial of a motion to vacate a final

judgment is abuse of discretion.” Silva v. de la Noval, 307 So. 3d 131, 134

(Fla. 3d DCA 2020). “We review a trial court’s decision to accept or reject a

general magistrate’s report and recommendations for an abuse of

discretion.” Martinez-Olson v. Estate of Olson, 328 So. 3d 14, 18 (Fla. 3d

DCA 2021) (quoting Lascaibar v. Lascaibar, 156 So. 3d 547, 549 n.1 (Fla.

3d DCA 2015)). “The standard of review for a child support award is abuse

of discretion.” Duncan v. Franklin, 349 So. 3d 502, 502 (Fla. 3d DCA 2022)

(quoting McKenna v. McKenna, 31 So. 3d 890, 891 (Fla. 4th DCA 2010)).

“A trial court’s determination of a party’s income for purposes of establishing

support obligations must be supported by competent, substantial evidence.”

Id. “The trial court’s decision to impute income is reviewed for abuse of

discretion.” Id. “Awards of retroactive child support are reviewed for an

abuse of discretion.” Id. at 502-03 (quoting Williams v. Gonzalez, 294 So.

3d 941, 945 (Fla. 4th DCA 2020)). “A trial court’s interpretation and

application of Florida law is reviewed de novo.” Perez v. Maldonato, 324 So.

3d 1011, 1013 (Fla. 3d DCA 2021).

2 While Mathieu raises multiple errors regarding the magistrate’s

findings, we are precluded from reaching the merits on those issues where

he has provided no transcript of the hearing below. “It is the responsibility

and duty of the appellant to provide the appellate court with a record

sufficient to review the matter assigned as error.” S. Fla. Apartment Ass'n,

Inc. v. Dansyear, 347 So. 2d 710, 711 (Fla. 3d DCA 1977). In the absence

of such record, we must presume the trial court’s ruling is correct. See

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979)

(“Without a record of the trial proceedings, the appellate court can not

properly resolve the underlying factual issues so as to conclude that the trial

court’s judgment is not supported by the evidence or by an alternative theory.

Without knowing the factual context, neither can an appellate court

reasonably conclude that the trial judge so misconceived the law as to

require reversal. The trial court should have been affirmed because the

record brought forward by the appellant is inadequate to demonstrate

reversible error.”); White v. White, 717 So. 2d 89, 90 (Fla. 3d DCA 1998)

(“There is no transcript of the hearing in the record before us and we will not

disturb the trial court’s finding.”).

Notwithstanding Mathieu’s failure to provide this Court a transcript of

the hearing, we vacate the trial court’s order ratifying the magistrate’s

3 establishment of a lien on his personal injury claim. The record is clear and

both parties are in agreement that there has been no finding of delinquency

or default of Mathieu’s child support obligations. Florida law recognizes that

retroactive support differs from child support arrears and that unless the

obligor is overdue in making payment, retroactive support does not constitute

delinquency. See Dep’t of Revenue, Child Support Enf’t ex rel. Harper v.

Cessford, 100 So. 3d 1199, 1204 (Fla. 2d DCA 2012) (“[R]etroactive child

support that is not otherwise overdue does not constitute a delinquency or

meet the definition of ‘past-due support’[.]”); Penalver v. Columbo, 810

So. 2d 563, 565-66 n.1 (Fla. 2d DCA 2002) (“[W]e note that it would have

been improper for the circuit court to award prejudgment interest on the

retroactive child support. The final judgment mischaracterized the

retroactive support as an ‘arrearage.’ An arrearage occurs when a court

orders support, but a party does not pay it. . . . The final judgment on appeal

here was the first time a court ordered Penalver to pay any amount of child

support; he had not failed to pay any previously-ordered sums. An award of

prejudgment interest on the retroactive child support would have been

erroneous.”); Bailey v. Bailey, 851 So. 2d 286, 287 (Fla. 3d DCA 2003) (“To

the extent the court referred to the past child support in the final judgment as

an arrearage rather than retroactive child support, we agree. The distinction

4 between the two is significant . . . . Unpaid child support accruing from an

order requiring payment, an arrearage, is a vested right, not subject to

modification. Making a present award of child support retroactive, however,

is discretionary with the trial court. . . . Where, as here, the court never

ordered the former wife to pay child support prior to the dissolution judgment,

we vacate the arrearage award imposed against her for back child support.”)

(citation omitted).

Because Mathieu’s retroactive child support was not overdue to create

a delinquency, the trial erred in imposing a lien on the pending personal injury

claim for the total amount of the retroactive support award, plus all future

child support accrued. See Mackoul v. Mackoul, 32 So. 3d 741, 742 (Fla.

1st DCA 2010) (“To the extent necessary to protect payment of . . . child

support, the trial court may require the payor spouse to secure the award in

appropriate circumstances to satisfy arrearages or to ensure the financial

wellbeing of the family. However, such a requirement may not be imposed

absent special circumstances, such as . . . [an] obligor spouse in arrears on

support obligations . . . . The trial court must set forth specific findings of

special circumstances, the payor spouse's ability to afford the security, and

whether the security exists only for arrearages, or alternatively, if the whole

or a portion of the security is payable to the surviving family to minimize

5 economic harm.”) (citations omitted). The Department of Revenue

commendably concedes this error. Accordingly, we reverse the portion of

the trial court’s order ratifying the magistrate’s establishment of a lien on

Mathieu’s personal injury claim.

Affirmed in part; reversed in part.