IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

CRISTINA KIRTLEY,                      NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-1379

FLORIDA DEPARTMENT OF
REVENUE and EUGENE
LEWIS KIRTLEY, IV

     Appellees.
_____________________________/

Opinion filed July 6, 2017.

An appeal of an order of the Division of Administrative Hearings.
Lawrence P. Stevenson, Judge.

Cristina Kirtley, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Carrie R. McNair, Assistant Attorney General,
Child Support Enforcement, Tallahassee, for Appellee Florida Department of
Revenue.




PER CURIAM.

      In this case before us, Appellant appeals the lower court’s final

administrative support order denying retroactive child support.

      Eugene and Cristina Kirtley were married and had a son who was less than

two years of age when they separated. After their separation, Mr. Kirtley provided
child support totaling $2,720.25. In its proposed administrative support order, the

Department of Revenue (the Department) proposed current child support and also

$3,342.60 in retroactive child support to make up the difference between what

Mr. Kirtley had paid and what he should have been paying under the guidelines

provided in section 61.30, Florida Statutes (2016).         Mr. Kirtley requested an

administrative hearing, challenging the Department’s calculation of his income.

      At the hearing, the lower court found the following facts: The total monthly

support the child needed was $845.84; Mr. Kirtley earns $2,385.46 per month,

which constituted 68% of the family’s income; and he has the ability to pay child

support. Based on those facts and pursuant to section 61.30, Florida Statutes, the

lower court imposed $467 per month in child support on Mr. Kirtley, but failed to

award retroactive child support, on the grounds that Mrs. Kirtley “waived any

retroactive support payments due by [Mr. Kirtley].”

      The standard of review on a lower court’s denial of an award of retroactive

child support is abuse of discretion. Smith v. Smith, 

, 399 (Fla. 1st

DCA 2004). The issue before us is whether the lower court abused its discretion

by failing to award retroactive child support. Section 61.30(17), Florida Statutes,

provides guidelines for awarding child support retroactively, and does not require

the parent receiving child support to attend the hearing.




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      “A trial court abuses its discretion when it fails to award retroactive support

. . . where there is a need for child support and an ability to pay.” Leventhal v.

Leventhal, 

(Fla. 3d DCA 2004); Bardin v. Dep’t of Revenue, 

(Fla. 1st DCA 1998). Specifically, the trial court abuses its discretion

by failing to award retroactive child support on the grounds that the mother waived

her right to such support. Beal v. Beal, 

, 1054 (Fla. 1st DCA 1996)

(citing Armour v. Allen, 

, 799-800 (Fla. 1st DCA 1979), which held

that “parents may not contract away the rights of their child for support,” and

reasoning that the mother may not waive the child’s right to retroactive support).

      Here, the lower court determined that, although the child was in need of

support and the father had the ability to pay, the mother waived any right to

retroactive child support by not attending the hearing. Thus, we hold that the

lower court abused its discretion by failing to award retroactive child support.

      REVERSED and REMANDED.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.




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