Baudanza v. Baudanza
Case No. 4D10-4068

The parties divorced in 2006 and Former Husband was ordered to pay child support pursuant to the parties’ Marital Settlement Agreement. Former Wife later remarried, and the parties agreed to a modification whereby Former Husband would pay half of the original child support amount and Former Wife’s new husband would file for formal adoption of the parties’ son, but Former Husband would have access to his son for life. An adoption proceeding was started with a new case number. However, the final order of adoption stated that Former Husband’s parental rights to his son were terminated. Former Husband later claimed in the dissolution of marriage proceeding that he did not have to pay child support since Former Wife had precluded him from seeing his son and his parental rights had been terminated by the adoption order. The family court judge ruled that she lacked further jurisdiction of the matter because the modification and adoption had closed the case.

On appeal, the Fourth District Court of Appeal held that the family court judge still had jurisdiction despite the order of adoption. The court cited case law for the proposition that a judge in the probate, juvenile, civil or criminal division “has the authority and jurisdiction to hear cases involving child custody or dependency.” In Interest of Peterson, 364 So. 2d 98, 99 (Fla. 4th DCA 1978). Additionally, the court noted that the family court had retained jurisdiction in its order on the modification agreement, whereas the trial court in the adoption had not reserved jurisdiction. The court held the family court could “determine the validity and enforceability of the [modification] agreement in light of the adoption of the child.” The court reversed and remanded for further proceedings.

Hernandez v. Frontiero
Case No. 4D10-4122

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order finding a father in contempt for failure to pay child support. The order also allowed the father to pay only $20 per month towards his total child support arrearage of $18,499.75. The Fourth DCA noted that pursuant to section 61.14(5)(a), Fla. Stat., the final judgment of support created the presumption that the father had the ability to pay the child support. The father had failed to appear at the contempt hearing and show his inability to purge the contempt. The magistrate still recommended the father be allowed to pay only $20 towards the arrearage.

Relying on Lamar v. Lamar, 889 So. 2d 983 (Fla. 4th DCA 2009), the Fourth DCA held that the record did not contain competent substantial evidence to support the magistrate’s recommendation. The court reasoned that at $20 per month it would take the father until the child was twenty-nine years old to pay off the arrearage, thus defeating the very purposes of child support. The Fourth DCA held that it was error for the trial court to allow such a prolonged payment schedule. The court also held that the mother was entitled to interest on the arrearage amount.

Cissel v. Cissel, 4D09-3029 & 4D10-1324
June 22, 2011

The Fourth District wrote to address an appeal of an alimony award and child support.  The court below found the former husband, appellant, to have a gross monthly income of $18,109.  The figure was based on his average earnings during the preceding fourteen months of trial.  The appellant argued that this error.  The Fourth District held that although it was acceptable to use this average, it was error to base any support from this figure in this case.  Citing §61.08(2)(i), Fla. Stat. (requiring consideration of all sources of income available to either party), the Fourth District found the trial court to have failed to deduct the husband’s undisputed business expenses.
The Fourth District also found error in the trial court’s award of alimony to former wife.  The trial court had only made findings as to the length of the marriage and the $20,000 per month standard of living that exceeded the parties’ incomes.  On appeal, the Fourth District again referred to §61.08(1), Fla. Stat. (requiring findings of facts relative to the factors enumerated in subsection (2) supporting an award of alimony).  Additionally, the court noted that the marital standard of living is not a useful guide in awarding alimony where the marital lifestyle costs more than the parties’ earnings.  Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005).  The Fourth District reversed and remanded.

Many people understand the reality and importance of complying with a court’s order directing that child support payments be made on behalf of their children. What some may not realize is the failure to comply with said obligation could potentially result in a number of sanctions, including garnishment of wages, suspension of a driver’s license, or imprisonment.  The law, however, is clear as to the procedure that must be followed prior to the imposition of various sanctions.

We were recently successful in obtaining a stay of proceedings pending appeal, of a civil contempt order suspending our client’s driver’s license based on failure to pay child support arrearages in another state.  Under the Florida Family Law Rules of Procedure, an individual may have his or her driver’s license suspended as a sanction for failing to pay court ordered child support.  Pursuant to the rules of appellate procedure, a motion to stay proceedings must first be made in the lower tribunal.  If unsuccessful, the motion to stay proceedings can then be made in the appellate court.  In this particular case, we explained to the trial court that due to procedural deficiencies with the order on review, we had a good chance of prevailing on appeal.  On appeal, we are arguing that the order is subject to reversal where the judge failed to set a purge amount.  At the conclusion of the hearing of the Motion to Stay Proceedings, the trial judge, acknowledging the order’s failure to state a purge amount, had the driver’s license suspension recalled pending the outcome of the appeal.

In order to suspend an individual’s driver’s license for failure to pay child support, several findings must be made by the trial court.  First, the court must determine that the child support was owed and a failure to pay has occurred. Second, the court must then set a purge amount, meaning that the court must set an amount that the individual must pay in order to avoid or end the sanction of driver license suspension.  Finally, the court must make a finding that the individual has the ability to pay the purge amount.  In our case, the trial judge found that the client failed to pay court ordered child support, but did not set a purge amount or make a finding that a present ability to pay a purge amount existed.  Thus, we were successful in having the suspension recalled pending the appeal.  For more, see, e.g., Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); Larsen v. Larsen, 901 So. 2d 327 (Fla. 4th DCA 2005).