01-3323 PRIO V. BAROUH

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 01-3323 PRIO V. BAROUH

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

MIREYA PRIO, f/k/a MIREYA BAROUH, Appellant,

** ** ** CASE NO. 3D01-3323 LOWER TRIBUNAL NO. 85-43196

vs. ** HENRY BAROUH, ** Appellee. **

Opinion filed November 27, 2002. An Appeal from the Circuit Court for Dade County, Robert N. Scola, Jr., Judge. Fred M. Dellapa; Karen J. Haas, for appellant. Bofill & Vilar and Jose C. Bofill, for appellee.

Before JORGENSON, LEVY, and GREEN, JJ.

PER CURIAM. In a post-dissolution proceeding, the former wife appeals

from

an

order

adjusting

the

former

husband's

financial

obligations.

For the following reasons, we reverse and remand.

The parties were married in 1981 and had one son, born in 1982. They were divorced in 1986. when into they the signed final custody a marital of Both parties were represented by counsel settlement dissolution the agreement of that was incorporated wife was

judgment of the

marriage. retained

The the

awarded

child;

husband

marital

residence and various properties. trustee for the son real property

The husband was obligated to hold as in Ocala, Florida, until the child

attained the age of 21. obligations liability on that

He was to make all mortgage payments and other and hold the If wife the harmless husband for sold any the

property that

arising

from

property.

property, he was to hold the funds in trust for the son. never made the payments; that property went into foreclosure.

The father The wife

had to refinance and has been paying the mortgage on that property for sixteen years. The husband also agreed to open an interest-bearing trust account for the child and deposit $2,000.00 yearly, from 1986 until the child

turned 18, for the child's education beyond high school; the corpus was to be delivered to the son when he turned 21. not clearly indicate how many, if any, of The current record does those payments the former

husband made. The wife received a lump sum settlement of $115,000.00; the

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husband

was

obliged

to

pay

$500.00,

then

$700.00

per

month

in

child

support, as well as all costs of private schools, summer camps, health and dental insurance. Again, the record is not clear as to how many,

if any, of those payments were made. In 1989, the former wife brought an enforcement proceeding; the husband was represented by counsel, although he himself was in prison

on drug trafficking offenses. determined that the husband

Following a number of hearings the court owed over $125,000.00 in support payments.

The court ordered that arrearage, as well as future support obligations of approximately $173,012.00, the to be secured home. because portion by an equitable that lien of

$300,589.93 was seized

against by the the

former

marital

However, of of the the

property drug The

federal

government only a

husband's proceeds.

trafficking;

wife

received

court made a factual finding that the wife's efforts at enforcement of the final judgment had been fruitless because of the husband's

shielding himself behind the Fifth Amendment.

In addition, in the 1989

order the court specifically found that the husband had shown an intent to convey or conceal his assets. The husband spent four years in prison on trafficking convictions. When he was released, he filed a petition for modification of the final judgment alleging were that the he child that he worked to at minimum per wage. month. his His child support then court an

obligations discovered increased

reduced had

$150.00

The income; and

wife the

apparently to

misrepresented $350.00 per

support

month

instituted

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income deduction order.

By means that are not entirely clear, through

an ex parte proceeding in 1996 the husband and his counsel caused the Central Depository to reflect On the May balance 1, of his arrearage in child

support payments as zero.

2000,

the husband moved to

terminate child support, as the child would be turning 18 on May 11, 2000. which The she wife alleges moved to to be enforce the 1989 judgment of for arrearages, and

$528,090.00,

consisting

principal

interest. husband's obligations

The court entered the order on appeal, modifying - to the considerable contained in advantage the final many judgment of of the husband's of support marriage

dissolution

and reiterated in the 1989 judgment.

We reverse, as the trial court erred in holding that child support payments owed by the husband between the date of the dissolution of marriage and January, 1997 were barred by laches and res judicata. "Support obligations accruing under a court

order in a domestic case become vested rights of the payee and vested obligations of the payor which are not subject to

retroactive modifications." 485 (Fla. 3d DCA 1992).

Puglia v. Puglia, 600 So. 2d 484,

The right to the previously determined Id.

child support vests at the time the payments are due.

Unpaid support obligations are subject to a set-off only when "compelling equitable criteria and considerations" are present. See Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993). -4-

No such circumstances are present in this case, and there is no legal or equitable reason for the trial court to have

effectively nullified the judgment of January 18, 1989. As a matter of fact and of law, the doctrines of laches and res judicata do not apply to this proceeding. In sum, we reverse the order under review and remand for an evidentiary proceeding in which the parties shall present the accountings necessary for the trial court to determine the proper amount of the husband's support arrearage from the date of the final judgment of dissolution of marriage until the date of that evidentiary hearing,1 and to establish an appropriate See Puglia, 600 So. 2d at 486 ("A trial court

payment schedule.

has discretion as to the manner in which the arrearage is to be repaid."). On remand, the arrearage is to be determined without

regard to the "zero balance" erroneously listed by the Central Depository. REVERSED AND REMANDED WITH DIRECTIONS.

Some of the support obligations were to continue until the child turned 21. -5-

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