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Escobar v. Escobar

Florida Court of Appeal, Fourth District

November 16, 2011

Milagro D. ESCOBAR, Appellant,
v.
Jose A. ESCOBAR, Appellee.

Page 959

Paul Kim and Lisa Daniels of The Law Offices of Lisa L. Daniels, P.A., Boca Raton, for appellant.

No appearance for appellee.

DAMOORGIAN., J.

Appellant, Milagro Escobar, timely appeals an order denying Appellee's, Jose Escobar's, supplemental petition for modification of child support, which reduced Appellee's child support obligation from six hundred dollars bi-weekly to six hundred dollars semi-monthly retroactive to the 2004 final judgment of dissolution of marriage.

Milagro Escobar (hereinafter " Former Wife" ) and Jose Escobar (hereinafter " Former Husband" ) were previously married and have three children together from that marriage. The Former Husband filed a petition for dissolution of marriage with dependent or minor children in 2003, which ultimately led to the parties entering into a marital settlement agreement determining the Former Husband's child support obligation. The agreement was incorporated into the final judgment of dissolution of marriage.

The marital settlement agreement established that the Former Husband would be responsible for paying six hundred dollars " every two weeks" or " bi-weekly" in child support " until the youngest minor Child attain[ed] the age of eighteen or graduat[ed] from High School, whichever occurs later but not to extend beyond the age of 19, becomes emancipated or dies." However, in the " Alimony" section, the agreement stated that child support would be paid at the rate of twelve hundred dollars per month.

Beginning in 2006, the Former Husband attempted through various motions to terminate child support for his older children as they attained the age of majority. In doing so, he also sought to recover any child support paid for those children from that point. In one of his motions, the Former Husband also sought clarification with regard to the calculation of child support, pointing to the conflict between the " Child Support" and " Alimony" sections in the agreement. These attempts were denied, with the court concluding that there was no ambiguity in the language of the parties' agreement and explaining that the Former Husband " had agreed to pay child support of $600.00 every 2 weeks whether there were 3, 2 or 1 remaining minor Child." Finally in 2009, the Former Husband filed a supplemental petition for modification of child support, alleging that his middle child was turning eighteen in May of 2009. Again, the Former Husband requested his child support be reduced because

Page 960

only one of his children had not reached the age of majority.

The trial court set the Former Husband's petition for a non-jury trial. Following the trial, the trial court entered an order denying the Former Husband's supplemental petition for modification of child support. The trial court's order noted that the Former Husband was not making what he earned before because his position changed in 2009, but the Former Husband had not pled the change in circumstances. Concluding that the sole basis pled by the Former Husband for modification of the child support was the legal emancipation of two of the three minor children, the court nonetheless determined that the Former Husband could have a legal basis to modify his child support downward in the future based on a permanent downward change in income if properly pled.

In relevant part, the order on appeal also stated:

Unfortunately for the Former Husband he made a very bad bargain. He agreed that despite the legal emancipation by majority or otherwise of the 2 elder Children that " ... Child Support shall continue until the youngest minor Child attains the age of eighteen...." He also contracted " ... to pay the sum of $600.00 bi-weekly...." Accordingly, the Former Husband who reasonably anticipated, knew or should have known that the older 2 Children would legally emancipate nevertheless agreed to pay $1,200.00 per month for the remaining minor Child.

* * *

The Court concludes, however, from the totality of the MEMORANDUM OF AGREEMENT (specifically the child support and alimony provisions) and the parties' testimony that the Former Husband is obliged to pay child support of $1,200.00 per month which must be charged at the rate of $600.00 twice monthly ...

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