Friday, August 24, 2012

Fifth District Reverses Modification of Arrearages

The Fifth District Court of Appeal reversed today in Cortina v. Lorie, a case in which the lower court issued an order reducing the amount of child support arrearages due from the former husband.  The former husband alleged that he had been unable to pay support while in prison, that he had made some payments, and that there was a verbal modification of his obligation to pay while he was in prison.  The Fifth District, however, found that the inability to pay argument was waived by his failure to seek modification at the time of his incarceration, that he offered no evidence of payment while he was in prison, and that the trial court rejected the verbal modification argument.  None of these grounds were sufficient to warrant a reduction in arrearages.  The trial court, in fact, had ordered the reduction on the theory that only the Former Wife, and not the children, would benefit from repayment of the already vested arrearages.  The appellate court ruled that, even if this were a reason for modification, it was outside the scope of the pleadings or any matter tried by consent.

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