PRIO V. BAROUH
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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, ** ** CASE NO. 3D01-3323 ** LOWER TRIBUNAL NO. 85-43196 Appellant, 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 obligations. adjusting the former husband s financial 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 they signed into the final awarded a marital judgment custody of Both parties were represented by counsel settlement of the dissolution child; the residence and various properties. trustee for the son real attained the age of 21. obligations liability on that arising of that was marriage. husband incorporated The retained wife the was marital The husband was obligated to hold as property in Ocala, Florida, until the child He was to make all mortgage payments and other property from agreement that and hold the wife harmless If the husband property. property, he was to hold the funds in trust for the son. never made the payments; that property went into foreclosure. for any sold the 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 -2- settlement of $115,000.00; the 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, on drug trafficking offenses. determined that the husband although he himself was in prison 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, $300,589.93 against the was by federal seized trafficking; the the wife to former be secured marital government received only a by an equitable lien that of home. However, property because of the husband s drug portion of the proceeds. The court made a factual finding that the wife s efforts at enforcement of the final judgment had been fruitless because shielding himself behind the Fifth Amendment. of the husband s 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 obligations discovered increased that were that the he reduced he child had worked to minimum $150.00 apparently support at to per wage. month. misrepresented $350.00 -3- per his month His child support The wife then income; the court and instituted an 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 support payments as zero. the On balance May 1, of his 2000, arrearage in child the husband moved to terminate child support, as the child would be turning 18 on May 11, 2000. The which she interest. wife moved alleges to be to enforce the 1989 $528,090.00, judgment consisting for of arrearages, principal and The court entered the order on appeal, modifying - to the husband s considerable obligations contained advantage in the - final many of the husband s judgment of dissolution of support marriage 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 retroactive modifications. 485 (Fla. 3d DCA 1992). payor which are not subject to Puglia v. Puglia, 600 So. 2d 484, The right to the previously determined child support vests at the time the payments are due. Id. 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 payment schedule. See Puglia, 600 So. 2d at 486 ( A trial court 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. 1 Some of the support obligations were to continue until the child turned 21. -5-
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