Florida’s Child Support Benchbook 2012 Office of the State Courts Administrator
Florida’s Child Support Benchbook 2012 Office of the State Courts Administrator 2 2012 CHILD SUPPORT BENCHBOOK Table of Contents TAB I - LEGAL OUTLINE CHILD SUPPORT LEGAL OUTLINE ............................................................... 9 I. CHILD SUPPORT GENERALLY.................................................................. 9 A. Authority to determine child support ......................................................................................... 9 B. Custodial relationships/Parties ................................................................................................... 9 C. Jurisdiction and venue ................................................................................................................ 11 D. Procedures ..................................................................................................................................... 12 E. Factors to be considered when awarding support.................................................................. 12 F. Temporary vs. permanent support............................................................................................ 14 G. Concealment/parental interference with time-sharing schedule ....................................... 15 H. Inability to Waive Obligation ..................................................................................................... 15 II. ESTABLISHING PATERNITY ............................................................... 17 A. Establishment of Paternity for Children Born Out of Wedlock ............................................ 17 B. Affidavits and Voluntary Acknowledgments - §742.10(1), Florida Statutes ...................... 18 3 C. Birth Certificates - §382.013(2), Florida Statutes .................................................................. 19 D. Court Proceedings - Chapter 742, Florida Statutes................................................................ 21 E. Scientific Testing - §742.12, Florida Statutes ......................................................................... 21 F. Trial ................................................................................................................................................ 23 G. Administrative Establishment of Paternity - §409.256, Florida Statutes ........................... 23 H. Probate .......................................................................................................................................... 31 I. Declaratory Relief ........................................................................................................................ 32 J. Children Conceived or Born During Wedlock ........................................................................... 32 K. Legal vs. Biological Father ......................................................................................................... 33 III. DISESTABLISHMENT OF PATERNITY ..................................................... 39 A. Relief from Judgment, Decrees, or Orders - Rule 1.540 Fla. R. Civ. P., ........................... 39 B. Statutory Disestablishment ........................................................................................................ 39 IV. ESTABLISHING SUPPORT ORDERS ....................................................... 45 A. Generally ........................................................................................................................................ 45 B. Health Insurance .......................................................................................................................... 46 C. Withholding ................................................................................................................................... 47 D. Life Insurance ............................................................................................................................... 47 E. Income deduction......................................................................................................................... 47 F. Mediation ....................................................................................................................................... 48 G. Arriving at the correct amount .................................................................................................. 48 Generally ...................................................................................................................................... 48 Gross Income ................................................................................................................................ 50 Unemployed or Underemployed parents ................................................................................ 50 No information available/imputing income ........................................................................... 51 Net income ................................................................................................................................... 52 4 Deviation from the Statutory Amount ..................................................................................... 59 Child Care ..................................................................................................................................... 62 Retroactive Awards ..................................................................................................................... 62 Establishing income deduction orders ..................................................................................... 63 Enforcement of income deduction orders .............................................................................. 68 State Disbursement Unit/depository/direct pay ................................................................... 75 Extraordinary expenses .............................................................................................................. 76 Tax exemptions ........................................................................................................................... 77 Child support schedule in subsequent child situations......................................................... 77 V. COLLECTION AND ENFORCEMENT OF SUPPORT ....................................... 80 I. Generally ....................................................................................................................................... 80 II. Methods for Enforcement/Collection ....................................................................................... 80 VII. INTERSTATE AND INTERNATIONAL FULL FAITH AND CREDIT ........................ 88 III. Full Faith and Credit .................................................................................................................... 88 IV. The Uniform Interstate Family Support Act ............................................................................ 88 V. Jurisdiction .................................................................................................................................... 89 VI. Petition to establish support order/temporary orders .......................................................... 93 VII. Direct Enforcement of Order from another State without Registration .................... 94 VIII. Registration for Enforcement............................................................................................. 94 IX. Modification .................................................................................................................................. 95 VIII. MODIFICATION OF CHILD SUPPORT ORDERS ........................................... 98 A. Generally ....................................................................................................................................... 98 B. Change of circumstance .............................................................................................................. 98 C. Streamlined judicial modification upon Department of Revenue agency review. §409.2564(11), Florida Statutes. .................................................................................................... 99 5 IX. CHILD SUPPORT IN TITLE IV-D CASES ................................................. 102 A. Generally ..................................................................................................................................... 102 B. Cases Involving the Parents ...................................................................................................... 104 C. Cases Involving Third-Party Custodians and the Parents .................................................... 104 X. CHILD SUPPORT IN DEPENDENCY CASES .............................................. 108 A. Dependency Child Support Checklist ...................................................................................... 108 B. Model for Child Support in Dependency Cases ...................................... 110 XI. CHILD SUPPORT IN DOMESTIC VIOLENCE CASES ..................................... 120 XII. CHILD SUPPORT IN DISSOLUTION CASES .............................................. 126 XIII. DEPARTMENT OF REVENUE ADMINISTRATIVE SUPPORT ORDERS ................... 134 Child Support Hearing Officer Colloquy ................................................... 194 Petition for Paternity Hearing Checklist .................................................. 197 Petition for Superseding Administrative Order ........................................... 198 Hearing Checklist ............................................................................. 198 Petition for Support Hearing Checklist .................................................... 199 Petition to Modify Child Support Hearing Checklist ..................................... 201 Motion for Contempt Hearing Checklist ................................................... 203 TAB 2 - Excerpt from The Florida Proceedings After Dissolution Of Marriage (Fla. Bar CLE 10th Ed. 2010). TAB 3 - R. Mitchell Prugh, Procedure Before General Magistrates and Child Support Enforcement Hearing Officers, The Florida Bar Journal, July/August, 2007, at 77. 6 TAB 4 I. Office of Child Support Enforcement, U.S. Dept. of Health and Human Services, Child Support and the Judiciary: Income Withholding for Support and the State Disbursement Unit Benchcard, April, 2012. II. Income Withholding for Support Court Order mandated May 31, 2012 III. National Council of Juvenile and Family Court Judges, A Practice Guide: Making Child Support Orders Realistic and Enforceable, February, 2008. Tab 5 – COLLOQUY AND CHECKLISTS FOR CHILD SUPPORT HEARING OFFICERS I. Child Support Hearing Officer Colloquy II. Petition for Paternity Hearing Checklist III. Petition for Superseding Administrative Order Checklist IV. Petition for Support Hearing Checklist V. Petition to Modify Child Support Hearing Checklist VI. Contempt Hearing Checklist 7 This publication was developed with the assistance of Magistrate Susan Keith, Judge Richard Weis, Magistrate Acelo Pedroso, Magistrate Steven Studybaker, Judge Noberto Katz, Hearing Officer Jennifer Kuyrkendall, the Florida Bar, and the Florida Department of Revenue. 8 CHILD SUPPORT LEGAL OUTLINE I. A. B. CHILD SUPPORT GENERALLY Authority to determine child support Article V, Sections 5 and 6 of the Florida Constitution grant the circuit and county courts jurisdiction to hear cases prescribed by general law. Article V, Section 1 of the Florida Constitution grants administrative officers quasi-judicial power in matters connected with the functions of their offices. Rule 12.491, Fla. Fam. L. R. P., applies to the proceedings for establishment, enforcement, or modification of child support when a party seeking support is receiving services pursuant to Title IV-D of the Social Security Act (42 U.S.C. §§651 et. seq.) and to non Title IV-D proceedings upon administrative order of the chief justice. o Child support hearing officers must be members of the Florida Bar unless waived. Rule 12.491(c), Fla. Fam. L. R. P. o A support enforcement hearing officer does not have the authority to hear contested paternity cases; however, the officer can accept voluntary acknowledgment of paternity and support liability and stipulated agreements setting the amount of support to be paid. Rule 12.491(e), Fla. Fam. L. R. P. Custodial relationships/Parties The Florida Legislature has determined that each parent has a fundamental obligation to support his or her minor or legally dependent child. §61.29(1), 9 Florida Statutes; Martland v. Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008). Public policy favors imposing on parents an obligation to contribute to a child‟s support. Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003). While the child is a minor, a parent or legal guardian may file the appropriate action to enforce the right to child support on behalf of the minor. Lawrence v. Hershey, 890 So. 2d 350 (Fla. 4th DCA 2004). Florida law provides that support may be required for an adult dependent “child” who, because of mental or physical incapacity beginning prior to the child reaching majority, is unable to support herself. If the adult child satisfies the requirements of §743.07(2), Florida Statutes, both parents may be responsible for support. Lawrence v. Hershey, 890 So. 2d 350 (Fla. 4th DCA 2004). A court may also require support for a dependent person between the ages of 18 and 19 who is still in high school and performing in good faith with a reasonable expectation of graduation before the age of 19. §743.07(2), Florida Statutes. The court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines. §61.13(1)(a), Florida Statutes. Child support is a right that belongs to the child and may not be contracted away by the parents. It is a dual obligation imposed on the parents by the state. A custodial parent‟s waiver of a child‟s right to support is contrary to public policy and unenforceable by the courts because it is not in the best interests of the child. Dechant v. Fla. Dept. of Revenue, 915 So. 2d 215 (Fla. 3d DCA 2011). Any party affected by the order of a child support hearing officer may move to vacate the order by filing a motion to vacate within 10 days from the date of entry. Any party may file a cross-motion to vacate within 5 days of service of a motion to vacate. A motion to vacate the order shall be heard within 10 days after the movant applies for a hearing on the motion. Rule 12.491(f), Fla. Fam. L. R. P. For the purpose of hearing on a motion to vacate, the party seeking review must provide a record to the court. The 10 record consists of the court file, including the transcript of the proceedings, and all depositions and evidence presented to the hearing officer. Rule 12.491(h) Fla. Fam. L. R. P. The transcript of all relevant proceedings shall be delivered to the judge and provided to opposing counsel not less than 48 hours before the hearing on the motion to vacate. C. Any party affected by the hearing officer‟s order may file a supplemental petition to modify the order at any time. The party seeking review must provide a record to the court. The record consists of the court file, including the transcript of the proceedings, and all depositions and evidence presented to the hearing officer. Rule 12.491(h) Fla. Fam. L. R. P. Dissolution of marriage is not required to seek child support. §61.09, Florida Statutes. Jurisdiction and venue Jurisdiction. The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order, as long as this state remains the residence of either party or the child(ren), to modify the amount and terms and conditions of the child support payments if the modification is found by the court to be in the best interests of the child; when the child reaches majority; if there is a substantial change in the circumstances of the parties; if §743.07(2), Florida Statutes, applies; or when a child is emancipated, marries, joins the armed services, or dies. §§61.13(1)(a)(2), 88.2051(1)(a), Florida Statutes. Venue. Venue for the enforcement of child support and alimony awards is in the county in which the petitioner resides or the support or alimony obligor is found. §61.17(1)(a), Florida Statutes. See also Bryant v. Bryant, 566 So. 2d 65 (Fla. 5th DCA 1990). Venue for the modification of child support or alimony awards is in the circuit court of the circuit (1) in which either of the parties resided at the date of the execution of their settlement agreement or (2) in which either resides at the time of the filing of the modification action, or (3) in which the agreement was executed or the support order was rendered. §§61.14(1)(a), 61.13(1)(a), Florida Statutes. See also DeMauro v. DeMauro, 11 737 So. 2d 566 (Fla. 3d DCA 1999); Thomas v. Plowmaker, 679 So. 2d 864 (Fla. 3d DCA 1996). D. E. Procedures IV-D Counsel: The Department of Revenue must provide the same IV-D services to families that do not receive public assistance that it provides to those who do. Therefore, in IV-D cases, IV-D attorneys can be used in all child support proceedings. Thaysen v. Thaysen, 583 So. 2d 663, 666 (Fla. 1991). Each party is required to provide his or her social security number and date of birth to the court, as well as the name, date of birth, and social security number of each minor child. Disclosure of social security numbers obtained is limited to the purpose of administration of the Title IV-D program for child support enforcement. §61.13(8), Florida Statutes. Adjudication of obligation to support spouse or minor child unconnected with dissolution: Except when relief is afforded by some other pending civil action or proceeding, a spouse residing in this state apart from his or her spouse and minor child, whether or not such separation is through his or her fault, may obtain an adjudication of obligation to maintain the spouse and minor child, if any. The court shall adjudicate his or her financial obligations to the spouse and child and shall establish the parenting plan [term defined in statute, §61.046(14), Florida Statutes] for the parties. Such an action does not preclude either party from maintaining any other proceeding for other or additional relief at any time. §61.10, Florida Statutes. Factors to be considered when awarding support The starting point for determining the amount of support owed is set forth in the child support guidelines. §61.30, Florida Statutes; Martland v. Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008). A child support determination lies within the trial court‟s discretion subject to the statutory guidelines and the reasonableness test. Whight v. Whight, 635 So. 2d 135 (Fla. 1st DCA 1994). 12 Following the statutory guidelines is mandatory. Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995). Contracts regarding the support of minor children are subject to the plenary power of the state to control and regulate, and subject to the court‟s discretion to enforce. The mere existence of an agreement addressing support for minor children does not permit the court to disregard the statute‟s explicit limitations on modifying support, imputing income, or awarding retroactive support. Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005). Contract law rather than statutory law governs promises exceeding the scope of Chapter 61. These include agreements providing support beyond the age of majority or providing more child support than required by statute. Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005). The trial court must consider the overall financial circumstances of both parents before awarding child support. §61.30, Florida Statutes; Martland v. Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008). Child support must be based on the legal earning capacity of the parent and not on the amount the parent earns through illegal activities. Crossin v. Crossin, 979 So. 2d 298 (Fla. 4th DCA 2008). A court may require support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is between the ages of 18 and 19 and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19. §743.07(2), Florida Statutes. When a party is willfully earning less than the person has the ability to earn through his or her best efforts, the court can impute income if: (1) the termination of income was voluntary, and (2) any subsequent underemployment resulted from the spouse‟s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Guard v. Guard, 993 So. 2d 1086 (Fla. 5th DCA 2008). 13 F. Temporary vs. permanent support A temporary support order is often required at the beginning of a case before the parties have an opportunity to complete discovery. Given the urgency, the court may sometimes order temporary support in an abbreviated hearing with limited evidence and later readdress the issue. Dent v. Dent, 851 So. 2d 819 (Fla. 2d DCA 2003). A trial court cannot retroactively increase temporary child support payments for a period before the date the motion seeking the increase is filed. Flores v. Flores, 874 So. 2d 1211 (Fla. 4th DCA 2004). A trial court does have the authority to retroactively reduce a parent‟s obligation for temporary child support. Flores v. Flores, 874 So. 2d 1211 (Fla. 4th DCA 2004). The child support guidelines apply to temporary support orders as well as support orders entered after final hearings. Hauser v. Hauser, 778 So. 2d 309 (Fla. 1st DCA 2000); Migliore v. Migliore, 792 So. 2d 1276 (Fla. 4th DCA 2001). Temporary order due to the child‟s placement change o When the Department of Revenue files a petition for modification and the petition is accompanied by a verified motion signed by the Department of Revenue to redirect payment alleging that: The child is residing with a relative caretaker that receives temporary cash assistance or The child was formerly residing with a relative caretaker, the child support payments were redirected to the relative caretaker, and the child is now residing with the original payee, then the court shall enter a temporary order, ex parte, within 5 days that redirects the child support payments to the relative caretaker or original payee pending a final hearing and may grant such relief as the court deems proper. Upon the filing of a verified motion by the Department of Revenue to redirect payment, the relative caretaker is deemed a party to the proceedings. §409.2564(12)(a), Florida Statutes. 14 G. H. Concealment/parental interference with time-sharing schedule When a parent who is ordered to pay child support or alimony fails to pay, the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule (term defined in statute, §61.046(23), Florida Statutes), presently in effect between the parents. §61.13(4)(a), Florida Statutes. When a parent refuses to honor the other parent‟s rights under the timesharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony. §61.13(4)(b), Florida Statutes. The court should also examine the conduct of the custodial parent. The non-custodial parent is excused from paying child support during the time of concealment. Courts have distinguished between interference with visitation and actual concealment since the remedies for interference with visitation rights are not available when the custodial parent‟s whereabouts are unknown. Hoffman v. Foley, 541 So. 2d 145 (Fla. 3d DCA 1989). Inability to Waive Obligation Waiver is the intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment of a known right. The three elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5th DCA 2003). A parent cannot waive all arrears when the Department of Revenue is a party and public assistance monies have been paid. The Department of Revenue is an essential party to a public assistance case and Department of Revenue must be noticed or a party to any stipulation between the mother and father. Dept. of Revenue v. Pericola, 662 So. 2d 386 (Fla. 5th DCA 1995). Waiver cannot be found due to a delay in seeking child support. Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5th DCA 2003). Even if a parent‟s expenses exceed her income, this reason is not, in and of itself, sufficient for a waiver of the parent‟s obligation to pay support. Florida Dept. of Revenue ex rel. Bloemendal v. Hodge, 754 So. 2d 845 (Fla. 2d DCA 2000). 15 16 II. ESTABLISHING PATERNITY The courts have long held that the “highest spiritual and moral concepts, as well as the law, demand that the father, as far as his means reasonably permit, support them and this is a continuing duty until the children reach their majority or become selfsupporting.” Bezanilla v.Bezanilla, 65 So. 2d 754 (Fla. 1953). However, before the duty of child support can be imposed, the court must determine whether or not paternity has been established for the child. These methods include: The child was conceived and/or born while the parties were married; The parent has voluntarily signed a sworn paternity affidavit or acknowledgment; The parents are named on the child‟s birth certificate; Paternity has been established by a court or administrative proceeding; or Paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers‟ compensation or similar compensation programs. NOTE: Fla. Fam. L. R. P. 12.491(e) provides that a child support enforcement hearing officer does not have the authority to hear contested paternity cases. A. Establishment of Paternity for Children Born Out of Wedlock Except as provided by dependency proceedings in chapter 39, Florida Statutes, and adoption proceedings in chapter 63, Florida Statutes, §742.10, Florida Statutes, provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. Any action relating to the determination of paternity must be brought within four (4) years from the date the child reaches the age of majority. Pursuant to §742.10, Florida Statutes, paternity can be established by: o An affidavit acknowledging paternity or a stipulation of paternity executed by both parties and filed with the clerk of court; o An affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in §382.013 or §382.016, Florida Statutes, and is executed by both parties; o Paternity is adjudicated by the Department of Revenue as provided in §409.256, Florida Statutes. o Paternity is adjudicated by the Court as provided in Chapter 742 of the Florida Statutes. 17 B. Affidavits and Voluntary Acknowledgments - §742.10(1), Florida Statutes Acknowledgment. If adjudicatory proceedings were not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity witnessed by two individuals and signed under penalty of perjury creates a rebuttable presumption of paternity. If signed under penalty of perjury pursuant to §92.525(2), Florida Statutes, the written declaration: o Means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true”; o Must be followed by the signature of the person making the declaration; o If the verification on information or belief is permitted by law, the words “to the best of my knowledge and belief” may be added; o Declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. NOTE: A person who knowingly makes a false declaration is guilty of the crime of perjury by false declaration, a third degree felony, punishable by up to five years or $5,000.00. o Both parents must provide their social security numbers on any acknowledgment of paternity, consent affidavit, or stipulation of paternity. o Rescinding. Acknowledgement may be rescinded within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child in which the signatory is a party, whichever is earlier. o Challenge. After 60 days, a signed voluntary acknowledgment constitutes an establishment of paternity and may be challenged in court only on the basis of: Fraud, Duress, or Material Mistake of Fact o The burden of proof is on the challenger, and child support will not be suspended except upon a finding of good cause by the court. §742.10(4), Florida Statutes. o A verified motion pursuant to Rule 12.540 and §742.10(4) claiming that recent DNA testing excluded the petitioner as the father of the child may be sufficient to establish a material mistake of fact. State, Dept. of 18 Revenue, Office of Child Support Enforcement v. Ductant, 957 So. 2d 658, 660 (Fla. 3d DCA 2007). o Ratification. Judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity. §742.10(5), Florida Statutes. C. In many cases, the legal father will file a request or motion for genetic testing when a petition is filed to establish child support. The legal father will acknowledge that he signed the affidavit or birth certificate and is now questioning the paternity; however, the request or motion is devoid of any allegations of fraud, duress, material mistake of fact, or newly discovered evidence. Further, the motion is not a proper petition to disestablish paternity pursuant to §742.18, Florida Statutes. Absent such allegations, no good cause is shown to justify an order requiring the mother and child to submit to genetic testing. State, Dept. of Revenue ex rel. Chambers v. Travis, 971 So. 2d 157, 162 (Fla. 1st DCA 2007); Dept. of Revenue ex rel. T.E.P. v. Price, 958 So. 2d 1045 (Fla. 2d DCA 2007). “No party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity „in controversy‟ and (2) „good cause‟ exists for the testing.” State, Dept. of Revenue ex rel. Chambers v. Travis, 971 So. 2d 157 at 162. “Regarding the first requirement, paternity can be placed „in controversy‟ during proceedings conducted by a child support enforcement hearing officer if the purported father files documentation alleging that he is not the biological father or by asserting that he has not acknowledged his fatherhood in an affidavit executed in conformity with §742.10(1).” State, Dept. of Revenue ex rel. Carnley v. Lynch, 53 So. 3d 1154 (Fla. 1st DCA 2011). However, absent proof to support the allegations, such as a copy of the child‟s birth certificate showing he did not sign the document or other evidence to support the claims, the legal father failed to show good cause to justify paternity testing. Id. at 1157. Birth Certificates - §382.013(2), Florida Statutes Affidavit. If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father. §382.013(2)(c), Florida Statutes. 19 o Note: The facility shall give notice orally or through the use of video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights, including, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from signing an acknowledgment of paternity, as well as information provided by the Title IV-D agency regarding the benefits of voluntary establishment of paternity. o Upon the request of the mother and the person to be named as the father, the facility shall assist in the execution of the affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as specified by §92.525(2), Florida Statutes. Court Determination. If the paternity of the child is determined by a court of competent jurisdiction, the surname of the child shall be entered on the certificate in accordance with the finding and order of the court. §382.013(2)(d), Florida Statutes. Marriage. If the mother and father marry each other at any time after the child‟s birth, upon receipt of a marriage license that identifies any such child, the birth certificate shall be amended with regard to the parents‟ marital status as though the parents were married at the time of birth. §382.10(2)(d), Florida Statutes. Dissolution of Marriage. If there is a final judgment of dissolution of marriage which requires the former husband to pay child support for the child, the name of the father and the surname of the child shall be entered on the birth certificate in accordance with the finding and order of the court. §382.10(2)(d), Florida Statutes. Administrative Determination. If the paternity of the child is determined pursuant to §409.256, the name of the father and the surname of the child shall be entered on the certificate in accordance with the finding and order of the Department of Revenue. §382.013(2)(e), Florida Statutes. 20 D. E. Court Proceedings - Chapter 742, Florida Statutes Proceedings. When paternity has not been established by law or otherwise, an action may be brought by: o Any woman who is pregnant or has a child; o Any man who has reason to believe that he is the father of a child; or o Any child. Venue. The case must be filed in the circuit court of the county where the plaintiff resides or the county where the defendant resides. §742.021, Florida Statutes. Long Arm Jurisdiction. Engaging in the act of sexual intercourse within the state with respect to which a child may have been conceived, submits a person, whether or not a citizen or resident of the state, to the jurisdiction of the court of the state. §48.193(1)(h), Florida Statutes. Constructive Service. Except as to legal fathers, the service of process statute does not permit constructive service of process in paternity cases. Florida Dept. of Revenue v. Cummings, 930 So. 2d 604, 609 (Fla. 2006). Specifically, it should be noted that §49.011, Florida Statutes, does not include paternity actions. Constructive Service-Legal Father. Constructive service may be used to determine paternity, but only as to the legal father in a paternity action in which another man is alleged to be the biological father, in which case it is necessary to serve process on the legal father in order to establish paternity with regard to the alleged biological father. §49.011(15), Florida Statutes. Scientific Testing - §742.12, Florida Statutes A test may be ordered upon the request of a party providing a sworn statement or written declaration alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. §742.12(2), Florida Statutes. 21 The order for scientific testing must inform each person to be tested of the procedure and requirements for objecting to the test results. The test must be conducted by a qualified technical laboratory. §742.12(1), Florida Statutes. A statistical probability of 95% or more creates a rebuttable presumption that the alleged father is the biological father of the child. §742.12(4), Florida Statutes. The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or thirdparty foundation testimony to be presented. §742.12(3), Florida Statutes. A party may still call outside expert witness(es) to refute or support the testing procedure or results, or the mathematical theory on which they are based. §742.12(3), Florida Statutes. Second Test. If the test results or the expert analysis of the inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the requesting party. §742.12(5), Florida Statutes. The Florida Statute regarding a second test is directory and not mandatory. Dept. of Revenue ex rel. of Glover v. Smatt, 679 So. 2d 1191 (Fla. 5th DCA 1996). “This statute imposes an obligation on the moving party to establish good cause before a successive test can be ordered.” Southwick v. Dept. of Revenue ex rel. Mulloy, 750 So. 2d 32 (Fla. 2d DCA 1998). A mere dissatisfaction with the results of the first test is not good cause. Id. 22 F. G. Trial Hearings for the purpose of establishing or refuting the allegations of the paternity complaint and answer shall be held in chambers and may be restricted to persons, in addition to the parties involved and their counsel, as the judge in his or her discretion may direct. §742.031(1), Florida Statutes. Parties have right to a jury trial in paternity actions. B.J.Y. v. M.A., 617 So. 2d 1061 (Fla. 1993). Relief from Judgment. A motion for relief from judgment pursuant to rules 12.540 and 1.540 (Not a Petition to Disestablish Paternity pursuant to §742.18, Florida Statutes) must be filed within one year absent extrinsic fraud or fraud upon the court. Dept. of Revenue, State of Florida v. Myrick, 706 So. 2d 104 (Fla. 5th DCA 1998). Administrative Establishment of Paternity - §409.256, Florida Statutes The Department of Revenue is authorized by law to initiate administrative proceedings to establish paternity or establish paternity and child support, orders to appear for genetic testing, and administrative proceedings to establish child support obligations. §§409.256, 409.2563, Florida Statutes. In 2005, the Florida legislature enacted Chapter 2005-39, Laws of Florida, establishing an administrative procedure for the establishment of child support. The Department of Revenue is entitled to render a final order of paternity or final order of paternity and child support. If a timely request for hearing is filed, the matter is referred to the Division of Administrative Hearings. Chapter 120 and the uniform rules of procedure govern the conduct of the proceedings. A final order rendered pursuant to this section has the same effect as a judgment entered by the court pursuant to chapter 742. Once the Department of Revenue commences an action by serving the respondent with the Notice of Proceeding to Establish Paternity by certified mail or by service of process, all further service is by regular mail. This includes notice that the Department of Revenue intends to seek child support in conjunction with the paternity action. In enacting the legislation, the Legislature specifically states that it “does not intend to limit the jurisdiction of the circuit courts to hear and 23 determine issues regarding establishment of paternity. This section is intended to provide the Department of Revenue with an alternative procedure for establishing paternity and child support obligation in Title IVD cases. This section does not prohibit a person who has standing from filing a civil action in circuit court for a determination of paternity or of child support obligations.” §409.256(2)(f), Florida Statutes. Proceedings. The Department of Revenue may commence a paternity proceeding if: o The child‟s paternity has not been established. o No one is named as the father on the child‟s birth certificate or the person named as the father is the putative father named in an affidavit or written declaration. o The child‟s mother was unmarried when the child was conceived and born. o The Department of Revenue is providing services under Title IV-D. o The child‟s mother or a putative father has stated in an affidavit, or in a written declaration that the putative father is or may be the child‟s biological father. §409.256(2)(a), Florida Statutes. The affidavit or written declaration must set forth the factual basis for the allegation of paternity as provided in §742.12(2), Florida Statutes, i.e., facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. Long Arm Jurisdiction. The Department of Revenue may proceed against a nonresident over whom the State may assert personal jurisdiction under chapter 48 or chapter 88. §409.256(2)(c), Florida Statutes. Location of Hearings. Whenever practicable, hearings by the Division of Administrative Hearings shall be held in the judicial circuit where the person receiving service under Title IV-D resides, or if such person does not reside in the state, in the judicial circuit where the respondent resides. If agreed, hearings may be held in another location. If ordered by the administrative law judge, a hearing may be conducted telephonically or by videoconference. §409.256(2)(e), Florida Statutes. 24 Multiple Putative Fathers; Multiple Children. §409.256(3), Florida Statutes. o If more than one putative father has been named, the Department of Revenue may proceed against a single father or may proceed simultaneously against more than one putative father. o If a putative father has been named as a possible father of more than one child born to the same mother, the Department of Revenue may proceed to establish paternity of each child in the same proceeding. Notice of Proceedings - §409.256(4), Florida Statutes. o The Department of Revenue commences a proceeding by serving the respondent with a notice. The notice must state: That the Department of Revenue has commenced an administrative proceeding to establish whether the putative father is the biological father of the child named in the notice. The name and date of birth of the child and the name of the child‟s mother. That the putative father has been named in an affidavit or written declaration that states the putative father is or may be the child‟s biological father. That the respondent is required to submit to genetic testing. That genetic testing will establish either a high degree of probability that the putative father is the biological father of the child or that the putative father cannot be the biological father of the child. That if the results of the genetic test do not indicate a statistical probability of paternity that equals or exceeds 99 percent, the paternity proceeding in connection with the child shall cease unless a second or subsequent test is required. That if the results of the genetic test indicate a statistical probability of paternity that equals or exceeds 99 percent, the Department of Revenue may: o Issue a proposed order of paternity that the respondent may consent to or contest at an administrative hearing; or o Commence a proceeding to establish an administrative support order for the child. Notice of the proceeding shall be provided to the respondent by regular mail. That, if the genetic test results indicate a statistical probability of paternity that equals or exceeds 99% and a proceeding to establish an administrative support order is commenced, the Department of 25 Revenue shall issue a proposed order that addresses paternity and child support. The respondent may consent to or contest the proposed order at an administrative hearing. That if a proposed order of paternity or proposed order of both paternity and child support is not contested, the Department of Revenue shall adopt the proposed order and render a final order. That, until the proceeding is ended, the respondent shall notify the Department of Revenue in writing of any change in address and that the respondent shall be deemed to have received any subsequent order, notice, or other paper mailed to the most recent address provided or, if not provided, to the service address. That the respondent may file an action in circuit court for a determination of paternity, child support obligations, or both. That if the respondent files an action in circuit court and serves the Department of Revenue with a copy of the petition or complaint within 20 days after being served notice, the administrative process ends without prejudice and the action must proceed in circuit court. That, if paternity is established, the putative father may file a petition in circuit court for a determination of matters relating to custody and rights of parental contact. The order to appear for genetic testing may be served at the same time or separately. A copy of the affidavit or written declaration shall be provided. Service. §409.256(4), Florida Statutes. o Respondents may be served by certified mail, restricted delivery, return receipt requested, or by service of process. o If person other than the addressee signs, the Department of Revenue shall attempt to contact the addressee by telephone to confirm receipt. If the Department of Revenue is unable to confirm, service is not complete and the Department of Revenue shall attempt personal service. o The Department of Revenue or an authorized agent may serve notice or order for genetic testing and execute affidavit of service. Genetic Testing. §409.256(4)(c), Florida Statutes. o Order to Appear for Genetic Testing shall inform the person ordered to appear: 26 o That the Department of Revenue has commenced an administrative procedure to establish whether the putative father is the biological father of the child. o The name and date of birth of the child and the name of the child‟s mother. o That the putative father has been named in an affidavit or written declaration that states the putative father is or may be the child‟s biological father. o The date, time, and place that the person ordered to appear must appear to provide a sample for genetic testing. o That if the person has custody of the child, the person must submit the child for testing. o That when samples are provided, the person ordered to appear shall verify his or her identity and the identity of the child by presenting a photo identification. o That the Department of Revenue shall pay the cost of the testing and shall provide a copy of the test results. o That if the person ordered to appear does not appear or refuses to submit to genetic testing without good cause, the Department of Revenue may take one or more of the following actions: Commence proceedings to suspend the driver‟s license and motor vehicle registration as provided in §61.13016, Florida Statutes; Impose an administrative fine against the person in the amount of $500.00; File a petition in the circuit court for the child and an order for costs, including costs of the genetic testing. o That the person ordered to appear may contest the order by filing a written request for informal review within 15 days after service, with further rights to an administrative hearing following the informal review. Contesting an Order to Appear for Genetic Testing. §409.256(5), Florida Statutes. o Informal Review. A person ordered to appear may contest by filing a written request for informal review with the Department of Revenue within 15 days after service of the order. After review, the Department of Revenue shall notify the person in writing whether it intends to proceed. 27 o Administrative Hearing. After informal review and within 15 days after mailing of the Department of Revenue‟s intent to proceed, a person ordered to appear may file a request for administrative hearing stating specific reasons why they should not be ordered to submit to genetic testing. Administrative hearings are governed by chapter 120 and the uniform rules of procedure. o Waiver. If a request for informal review or administrative hearing is not timely filed, the person ordered to appear is deemed to have waived the right to a hearing. o The Department of Revenue may not proceed until: After notifying of intent to proceed after informal review, a timely request for hearing is not filed; The person ordered to appear withdraws the request for a hearing or informal review; or The Division of Administrative Hearings issues an order that the person must submit for testing or issues an order closing the division‟s file and the order is final. Scheduling of Genetic Testing. §409.256(6), Florida Statutes. o Notice. The Department of Revenue shall notify, in writing, the person ordered to appear of the date, time, and location of the appointment and the requirement to provide photo identification. o Reschedule. The Department of Revenue shall reschedule: One time without cause, if a request is made in advance of the initial test date. One time if a person shows good cause for failure to appear for the test. The request must be filed within 20 days after scheduled test date and must state facts and circumstances supporting claim. The Department of Revenue shall notify the person in writing whether or not it accepts or rejects the person‟s claim of good cause. One time upon the request of a person sanctioned for failure to appear. Second Test. o A person ordered to appear may obtain a second test by filing a written request with the Department of Revenue within 15 days after the mailing of initial testing results and upon payment in advance for the full cost of a second test. 28 o The Department of Revenue may schedule and require a subsequent test if it has reason to believe the results of the prior test may not be reliable. Failure or Refusal to Submit to Genetic Testing. §409.256(7), Florida Statutes. If a person who is served with an order to appear for genetic testing fails to appear without good cause or refuses to submit to testing without good cause, the Department of Revenue may take one or more of the following actions: o Commence a proceeding to suspend the driver‟s license and motor vehicle registration of the person ordered to appear as provided in §61.13016, Florida Statutes. Pursuant to §322.058(2), Florida Statutes, the suspended driver‟s license and motor vehicle registration may be reinstated when the person ordered to appear complies with the order for genetic testing. o Impose an administrative fine against the person in the amount of $500.00. The Department of Revenue may collect an administrative fine by using civil remedies or other statutory means available to the department for collecting support. OR o File a petition in circuit court to establish paternity, obtain a support order for the child, and seek reimbursement from the person ordered to appear for the full cost of genetic testing incurred by the department. Test Results. §409.256(7), Florida Statutes. o A copy of the test results are sent to the parties. If the results do not indicate a statistical probability of paternity that equals or exceeds 99%, the paternity proceeding will cease. Proposed Order of Paternity. §409.256(9), Florida Statutes. o If the probability of paternity equals or exceed 99%, the Department of Revenue may: Issue a proposed order of paternity; or Delay issuing a proposed order, commence by regular mail an administrative proceeding to establish a support order pursuant to §409.2563, Florida Statutes, and issue a single proposed order that addresses paternity and child support. The proposed order of paternity must: o State proposed findings of fact and conclusions of law. o Include a copy of the results of genetic testing. 29 o Include notice of the respondent‟s right to informal review and to contest the proposed order at an administrative hearing. The Department of Revenue shall serve the proposed order by regular mail. Informal Review; Administrative Hearing. §409.256(10), Florida Statutes. o Within 10 days after mailing or other service of proposed order, the respondent may contact a representative of the Department of Revenue to request an informal review. o Within 20 days after the mailing of a proposed order or 10 days after the mailing of a notice of conclusion of informal review, whichever is later, the respondent may request an administrative hearing in writing. The request must state the specific objections to the proposed order, proposed genetic tests, or both. Failure to file a timely request is deemed a waiver of the right to a hearing. o If a timely request is made, the Department of Revenue shall refer the hearing request to the Division of Administrative hearings for a chapter 120 proceeding. o The genetic test results shall be admitted into evidence and made part of the record. A statistical probability of 99% creates a presumption that the putative father is the biological father of child. The presumption may be overcome only by clear and convincing evidence. The respondent or the Department of Revenue may call expert witness(es) to refute or support the testing procedure, results, or mathematical theory. Verified documentation of the chain of custody of the samples is competent evidence. Final Order. §409.256(11), Florida Statutes. o Administrative Hearing. If a hearing is held the administrative law judge shall issue a final order that adjudicates paternity or, if appropriate, paternity and child support. o Department Issuance. If the respondent does not file a timely request for a hearing or consent in writing to the entry of a final order without a hearing, the Department of Revenue may render a final order of paternity or paternity and child support. o Copies. The Department of Revenue shall mail a copy of the final order to the putative father, mother, and caregiver, if any, and notify the respondent of the right to seek judicial review of the final order in accordance with §120.68. 30 H. o Effectiveness. A final order rendered pursuant to this section has the same effect as a judgment entered by the court pursuant to chapter 742. Judicial Review. The respondent and the department have the right to seek judicial review in accordance with §120.68, Florida Statutes. Mailing Address. Until the proceeding has ended, a respondent served with a notice of a proceeding must inform the Department of Revenue in writing of any change of mailing address and is deemed to have received any subsequent order, notice, or other paper mailed to that address or the address where the respondent was served, if a more recent address has not been provided. Probate Paternity may be established in the course of probate proceedings. In re Estate of Smith, 685 So. 2d 1206, 1208 (Fla. 1996). §742.10(1), Florida Statutes, confirms this by stating that “if the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance . . . such adjudication constitutes the establishment of paternity for purposes of this chapter.” Pursuant to §732.108(2), Florida Statutes, for the purpose of intestate succession, when a child has not been adopted, and is born out of wedlock, the child is a descendant of his or her father and is one of the natural kindred of all members of the father‟s family if: o The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. o The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 (statute of limitations) shall not apply in determining heirs in a probate proceeding under this paragraph. o The paternity of the father is acknowledged in writing by the father. However, the courts have found that §732.108(2)(b), Florida Statutes, does not create a separate independent case of action to establish paternity. It merely explains the effect of an adjudication of paternity. Id; Glover v. Miller, 947 So. 2d 1254, 1257 (Fla. 4th DCA 2007). 31 I. Declaratory Relief J. Paternity may be determined in an action for declaratory relief, including an action brought by a trustee to determine the beneficiaries of a trust. Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010); Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978). Workers‟ Compensation §440.02(6), Florida Statutes. For the purposes of Workers‟ Compensation, a child includes: o A posthumous child, o A child legally adopted prior to the injury of the employee, or o A stepchild or acknowledged child born out of wedlock who is dependent upon the deceased, but does not include married children unless wholly dependent on the employee. Children Conceived or Born During Wedlock In determining the establishment of child support for a child conceived or born during a marriage, the court must determine: o Was the child conceived or born during an intact marriage; o Was the child conceived or born prior to the marriage, but the parties subsequently married; o Is the husband indicated on the birth certificate; o Does the husband dispute that he is the biological father of the child and any obligation to pay child support. Presumption of legitimacy. The law in Florida is clear that a child born or conceived during a lawful marriage is legitimate child of the husband and wife. Adoption of Baby James Doe, 572 So. 2d 986, 988 (Fla. 1st DCA 1990). The child born or conceived during such marriage is presumed to be the child of both the husband and the wife. Fla. Dept. of Revenue v. Cummings, 930 So. 2d at 607 (Fla. 2006). This presumption of legitimacy is one of the strongest rebuttable presumptions known to law. Id. “It is a presumption which operates in family law settings to prevent a husband‟s rights from being terminated and for the child‟s best interests in his or her legitimacy and support from his or her father.” Daniels v. Greenfield, 15 So. 3d 908, 914 (Fla. 4th DCA 2009). “A person seeking to challenge the child‟s paternity must overcome the strong, albeit rebuttable, presumption of legitimacy.” Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. 1st DCA 2010). 32 K. Legal vs. Biological Father Legal Father. The Supreme Court has defined a “legal father” as “the man to whom the mother was married when the child was born and whose name appears on the birth certificate.” G.F.C. v. S.G., 686 So. 2d 1382, 1384 (Fla. 5th DCA 1997); Dept. of Health & Rehabilitative Services v. Privette, 617 So. 2d 305, 307 (Fla. 1993). The law has repeatedly held that when a child is born into an intact marriage and is recognized by the husband and the wife as their child, “the husband is deemed the legal father to the exclusion of all others,” and a man claiming to be the child‟s biological father has no common law, statutory, or constitutional right to sue for paternity G.F.C., 686 So. 2d at 1384; Bellomo v. Gagliano, 815 So. 2d 721, 722 (Fla. 5th DCA 2002). The mother‟s husband remains the legal father unless and until the court effects a substitution. Shuler v. Guardian Ad Litem Program, 17 So. 3d 333, 335 (Fla. 5th DCA 2009). For the purposes of the establishment of child support, a “legal father is an indispensable party in any action to determine paternity and to place support obligation on another man unless it is conclusively established that the legal father‟s rights to the child have been divested by some earlier judgment.” Cummings, 930 So. 2d at 609. Therefore, an action for the establishment of child support must include the legal father even though another claims to be the biological father. Intact Marriage. An intact marriage has been defined as “the existence of a marriage without the pendency of divorce proceedings.” Lander v. Smith, 906 So. 2d 1130, 1134 (Fla. 4th DCA 2005); Nevitt v. Bonomo, 53 So. 3d 1078, 1082 (Fla. 1st DCA 2010). See also S.B. v. D.H., 736 So. 2d 766, 767 (Fla. 2d DCA 1999)(So long as the husband and wife are married and have no pending divorce proceeding, we will not authorize the trial court to conduct any qualitative evaluation of whether the marriage is “intact.”). The bonds of matrimony are either terminated by death or by proceedings filed pursuant to Chapter 61 of the Florida Statutes. Lohman v. Carnahan, 963 So. 2d 985, 987 (Fla. 4th DCA 2007). Birth Certificate. If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction. §382.013(2)(a), Florida Statutes. o If there is a final judgment of dissolution of marriage which requires the former husband to pay child support for the child, the name of the 33 father and the surname of the child shall be entered on the birth certificate in accordance with the finding and order of the court. §382.013(2)(d), Florida Statutes. o Birth Certificate -- Deceased Husband. If the husband dies while the mother is pregnant but before the birth of the child, the name of the deceased husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction. §382.013(2)(b), Florida Statutes. Subsequent Marriage. If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock. §742.091, Florida Statutes; I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998) (marriage two months after birth of child); Harris v. Harris, 753 So. 2d 774 (Fla. 5th DCA 2000) (marriage nine months after birth). NOTE: Record of the proceedings in such cases shall be sealed against public inspection in the interests of the child. However, the court has permitted a paternity case to proceed when the mother married a man after she was served with the paternity action and the second man acknowledged that he was the father of the child. T.B. v. M.M., 945 So. 2d 637 (Fla. 2d DCA 2006). See also, J.W.T. v. S.T., 974 So. 2d 436 (Fla. 2d DCA 2007) (Dismissal of paternity action by biological father was reversed when mother had previously commenced a paternity action against the father which was voluntarily dismissed after marrying husband. The timing of the actions suggested an attempt to deny biological father‟s right to determine paternity). Non-Biological Legal Father. As established in the case of Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), a husband has no legal duty to provide for the support of a minor child of the marriage who is neither his natural nor his adopted child and for whose care and support he had not contracted. Under the facts of Daniel, paternity was not contested and the parties stipulated that the husband was not the biological father of the child, and that the husband did not assert any legal rights as a legal father during the couple‟s marriage. 34 The issue frequently arises in child support cases when the mother of the child is still married and bears a child or children purportedly fathered by another man. As stated in Fla. Dept. of Revenue v. Cummings, 930 So. 2d at 609 (Fla. 2006), for the purposes of the establishment of child support, a “legal father is an indispensable party in any action to determine paternity and to place support obligation on another man unless it is conclusively established that the legal father‟s rights to the child have been divested by some earlier judgment.” Therefore, the legal father‟s rights to the child must be divested by a final judgment of dissolution of marriage or other order disestablishing paternity before child support can be sought from a putative biological father. NOTE: A legal father may be equitably stopped from disavowing his status as a child‟s legal father in cases where he has acted as the child‟s father, enjoyed the benefits of a biological father such as the love of the child and status as a father, and prevented the child from knowing the biological father or receiving support. C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. 2d DCA 1999), review granted, 762 So. 2d 916 (Fla. 2000), and review dismissed as improvidently granted by J.M.C. v. C.C.A., 803 So. 2d 705 (Fla. 2001). Biological Father. The issue frequently arises in child support cases when the mother of the child is still married and bears a child or children purportedly fathered by another man. In such cases, the biological father may seek to intervene. The courts have long held that a “man who fathers a child with a woman married to another man generally has no parental rights or responsibilities to the child.” Shuler, 17 So. 3d at 335 (Fla. 5th DCA 2009). “When a child is born into an intact marriage and is recognized by the husband and the wife as their child, a man claiming to be the child‟s biological father has no common law, statutory or constitutional right to sue for paternity.” Bellomo, 815 So. 2d at 722, citing to G.F.C., 686 So. 2d at 1384 (Fla. 5th DCA 1997). Part of the basis for this argument is that §742.10, Florida Statutes, states that the “chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.” (Emphasis added.) §742.011, Florida Statutes, provides that a paternity action may be brought so long as paternity had not already been established by “law or otherwise.” Paternity would be established “by law” when there is an adjudication of paternity, the filing of the acknowledgements or 35 stipulations, or administrative establishment. “Paternity would „otherwise‟ be established when a child is born to an intact marriage and recognized by the husband and wife as being their child,” G.F.C., 686 So. 2d at 1386. The prevailing law in the state of Florida is that a putative father has no right to initiate a paternity action concerning the child of an intact marriage if both the married woman and her husband object. G.F.C.; I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998); Johnson v. Ruby, 771 So. 2d 1275 (Fla. 4th DCA 2000); Bellomo, 815 So. 2d at 722; Tijerino v. Estrella, 843 So. 2d 984 (Fla. 3d DCA 2003). In S.D. v. A.G., 764 So. 2d 807, 809 (Fla. 2d DCA 2000), the court expanded the holding so that a “putative father is not entitled to intervene in a divorce proceeding to seek a determination of paternity concerning a quasi-marital child where: o The husband and wife have stipulated or agreed that the child should be treated like any other marital child; o The putative father waited more than 2 ½ years from the birth of the child to initiate any proceeding and has not alleged any fraud or concealment of any critical fact by the husband and wife; o The putative father has not alleged that he established a parentalstyle bond with the child; and o The putative father has not alleged a basis to terminate the legal father‟s rights under chapter 39, Florida Statutes.” Based upon the reasoning that paternity has been otherwise established, the court has not allowed a wife to maintain an action for paternity where the legal father signed the birth certificate, subsequently married the mother, and participated in raising the child since birth. Williams-Raymond v. Jones, 954 So. 2d 721 (Fla. 4th DCA 2007). In the pivotal case of Dept. of Health & Rehabilitative Services v. Privette, 617 So. 2d 305, (Fla. 1993), the court held that in a case where a legal father may lose his parental rights, “before a blood test can be ordered in this type of case, the trial court is required to hear argument of the parties, including the legal father, if he chooses to appear, and a guardian ad litem appointed to represent the child.” Limited Rights for Biological Fathers. Some courts have, parenthetically, recognized a potential limited right for a man to pursue a paternity action for a child born during an intact marriage. In such cases, the man “would be required to at least allege that a developed relationship exists between himself and the child; an allegation of mere biological link to the child 36 would not suffice. G.F.C., 686 So. 2d at 1386. See also, Bellomo, 815 So. 2d at 722; Fernandez v. McKenney, 776 So. 2d 1118, 1121 (Fla. 5th DCA 2001)(Sharp, J. concurring); Fernandez v. Fernandez, 857 So. 2d 997 (Fla. 5th DCA 2003). In Lander v. Smith, 906 So. 2d 1130 (Fla. 4th DCA 2005), the court allowed a case to proceed by a putative biological father for a child he fathered with the mother when she was married to but separated from her husband, where his name appeared on the birth certificate in contravention of §382.013(2)(a), Florida Statutes, where it was uncontested that he was the biological father, where the husband lacked access to the mother during the time of conception, and where he provided support and established a relationship with the child. See also, L.J. v. A.S., 25 So. 3d 1284 (Fla. 2d DCA 2010) (The trial court erred in summarily dismissing the putative father‟s petition based upon a lack of standing without first allowing a hearing to establish such standing when the child at issue has a biological father who is willing, able, and eager to parent and support the child; a legal father who is not; and a mother who wishes to deprive the child of a real father by declining to institute proceedings to divest the exhusband of legal parental rights); Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. 1st DCA 2010) (The court erred in dismissing a paternity complaint for a child conceived during a marriage but born after divorce even though a nunc pro tunc order vacating the final judgment of dissolution of marriage was entered. At the time the paternity action was filed and the child was born, the divorce proceeding was pending.). However, at least one court has rejected this “hypothetical” exception as invalid and refused to accept it. Slowinski v. Sweeney, 64 So. 3d 128 (Fla. 1st DCA 2011). 37 38 III. A. B. DISESTABLISHMENT OF PATERNITY Relief from Judgment, Decrees, or Orders - Rule 1.540 Fla. R. Civ. P., Rule 12.540 Fla. Fam. L. R. P. Prior to enactment of §742.18, Florida Statutes, the Florida Supreme Court held that a “final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity. Any subsequent challenge of paternity must be brought under the provisions of Fla. R. Civ. P. 1.540.” D. F. v. Dept. of Revenue ex rel L.F., 823 So. 2d 97, 100 (Fla. 2002). Based upon the rule, relief from a judgment based upon intrinsic fraud must be brought within one (1) year of its entry. Parker v. Parker, 950 So. 2d 388 (Fla. 2007). Such time limitation also applies to final judgments of paternity. Dept. of Revenue ex rel. Stephens v. Boswell, 915 So. 2d 717 (Fla. 5th DCA 2005). Intrinsic fraud applies to fraudulent conduct that arises within a proceeding and pertains to issues that have been or could have been tried. Extrinsic fraud involves conduct which is collateral to the issues tried in a case. In other words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause. In Parker, the Court held that a wife‟s misrepresentation of paternity in a dissolution of marriage proceeding is a matter of intrinsic fraud which must be brought within one year of entry of the judgment. Parker, 950 So. 2d at 391. Similarly, fraudulent inducement to stipulate to paternity is intrinsic fraud which must be raised within the time allowed under Rule 1.540(b). Dept. of Revenue ex rel. Stephens v. Boswell, 915 So. 2d at 723 (Fla. 5th DCA 2005). Statutory Disestablishment In 2006 the Legislature enacted Chapter 2006-265, whereby a male may seek to disestablish paternity or terminate a child support obligation. Effective June 20, 2006, Section 742.18, Florida Statutes, established the circumstances, procedures, and effect of a petition filed pursuant to the statute. The statute created a new cause of action which does not require allegations of fraud. Johnston v. Johnston, 979 So. 2d 337 (Fla. 1st DCA 2008). The petitions may even be filed by former husbands long after the entry of a final judgment of dissolution of marriage. (17 years) Id. at 338. Such petition must be filed prior to the child‟s 18th birthday. If the petition is granted, the legitimacy of a child born during a lawful marriage is not 39 affected. §742.18(9), Florida Statutes. Further, the filing of a petition to disestablish paternity does not preclude an individual from seeking relief from a final judgment, decree, order, or proceedings pursuant to Rule 1.540, Fla. R. Civ. P., or from challenging a paternity determination pursuant to §742.10(4), Florida Statutes. The requirements for disestablishment of paternity include: Petition. §742.18(1), Florida Statutes. o Must be filed by a male. o In a circuit court having jurisdiction over child support obligation or, if child support was determined administratively and not ratified by a court, in the circuit court where the mother or legal guardian or custodian resides. If the mother or legal guardian or custodian are no longer in the state of Florida, the petition may be filed in the circuit court where the petitioner resides. o Must be served on the mother or other legal guardian or custodian of the child. o Must Include: Affidavit - Newly Discovered Evidence stating that newly discovered evidence relating to the paternity of the child has come to the petitioner‟s knowledge since the initial paternity determination or establishment of child support obligation. o As long as the results meet the statute‟s other requirements, DNA test results from a test performed after the initial determination of paternity do satisfy the statutory requirement for newly discovered evidence, even if the respondent had suspicions that he was the father of the child prior to the initial establishment of paternity. P.G. v. E.W, 75 So. 3d 777 (Fla. 2d DCA 2011). However, the court certified conflict with the First District Court‟s decision in Hooks v. Quaintance, 71 So. 3d 908, 911 (Fla. 1st DCA 2011), in which the court held that “the plain language in §742.18 requires a showing of newly discovered evidence in addition to DNA test results indicating that the male is not the father of the child.” Scientific Test Result administered within 90 days prior to filing which indicates that the petitioner cannot be the father of the child, OR an affidavit stating that he did not have access to the child prior 40 to the filing of the petition. The petitioner may file a petition requesting testing if he does not have access to the child. Affidavit - Child Support stating that the petitioner: Is current on all child support payments for the child at issue, OR That he has substantially complied with his child support obligation and that any delinquency in his child support obligation arose from his inability for just cause to pay the delinquent child support when it became due. Scientific Testing. §742.18(7), Florida Statutes. o If the scientific test results are provided solely by the petitioner, the court on its own motion may, and on the petition of any party shall, order the child and the petitioner to submit to the applicable tests. Such testing must be done not more than 30 days after the court issues the order. o If the petitioner willfully fails to submit to testing, or if the mother or legal guardian or custodian of the child willfully fails to submit the child for testing, the court shall issue an order determining the relief on the petition against the party in noncompliance. If good cause is shown, such failure shall not be considered willful. See Dept. of Revenue ex rel. M.J.W. v. G.A.T., Jr., 76 So.3d 1083 (Fla. 2d DCA 2011). o Nothing in this paragraph prevents a child from reestablishing paternity under §742.10, Florida Statutes. o The party requesting scientific testing shall pay any fees charged for the tests. If the custodian of the child is receiving services from the administrative agency in its role as an agency providing enforcement of child support orders, that agency shall pay the costs of the testing if it requests and may seek reimbursement for the fees from the person against whom the court assesses the costs. Order. §742.18(2), Florida Statutes. o Required Findings: The court shall grant the relief upon a finding of all of the following: Newly discovered evidence relating to the paternity of the child has come to the petitioner‟s knowledge since the initial paternity determination or establishment of a child support obligation. The scientific test was properly conducted. That the petitioner is current on all child support payments for the child or that he has substantially complied with his child support 41 obligation and that any delinquency in his child support obligation arose from his inability for just cause to pay the delinquent child support when it became due. That the petitioner has not adopted the child. That the child was not conceived by artificial insemination while the petitioner and the child‟s mother were in wedlock. The petitioner did not act to prevent the biological father of the child from asserting his paternal rights with respect for the child. The child was younger than 18 years of age when the petition was filed. Prohibitive Conduct. §742.18(3), Florida Statutes. The court shall not set aside the paternity determination or child support if the petitioner engaged in the following conduct after learning that he was not the biological father of the child: o Married the mother of the child while known as the reputed father in accordance with §742.091, Florida Statutes, and voluntarily assumed the parental obligation and duty to pay child support; o Acknowledged his paternity of the child in a sworn statement; o Consented to be named as the child‟s biological father on the child‟s birth certificate; o Voluntarily promised in writing to support the child and was required to support the child based on that promise; o Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or o Signed a voluntary acknowledgment of paternity as provided in §742.10(4), Florida Statutes. Payment of child support. §742.18(5-6), Florida Statutes. o The duty to pay child support and other legal obligations for the child can only be suspended for good cause. However, the court may order the child support to be held in the registry of the court until a final determination of paternity has been made. o If the relief is granted, such relief shall be limited to the issues of prospective child support payments and termination of paternal rights, custody, and visitation rights. The petitioner‟s previous status continues in existence until an order granting relief is rendered. All previous lawful actions are confirmed retroactively, but not prospectively. 42 o This section does not create a cause of action to recover previously paid child support. o If relief on the petition is not granted, the court shall assess the costs of the action and attorney‟s fees against the petitioner. §742.18(10), Florida Statutes. 43 44 IV. ESTABLISHING SUPPORT ORDERS A. Generally The court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines schedule. §61.13(1)(a), Florida Statutes. All child support orders and income deduction orders entered must provide: o For child support to terminate on a child‟s 18th birthday unless the court finds or previously found that §743.07(2), Florida Statutes, applies, or is otherwise agreed to by the parties; o A schedule, based on the record existing at the time of the order, stating the amount of the monthly child support obligation for all the minor children at the time of the order and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to receive child support; and o The month, day, and year that the reduction or termination of child support becomes effective. §61.13(1)(a), Florida Statutes. All child support orders shall provide the full name and date of birth of each minor child who is the subject of the child support order. §61.13(1)(d), Florida Statutes. Every petition for child support or for modification of child support shall be accompanied by an affidavit which shows the party‟s income, allowable deductions, and net income computed in accordance with this section. The affidavit shall be served at the same time that the petition is served. The respondent, whether or not a stipulation is entered, shall make an affidavit which shows the party‟s income, allowable deductions, and net income computed in accordance with this section. The respondent shall include his or her affidavit with the answer to the petition or as soon thereafter as is practicable, but in any case at least 72 hours prior to any hearing on the finances of either party. §61.30(14), Florida Statutes. 45 B. Health Insurance Each order for support shall contain a provision for health insurance for the minor child when health insurance is reasonable in cost and accessible to the child. Health insurance is presumed to be reasonable in cost if the incremental cost of adding health insurance for the child or children does not exceed 5 percent of the gross income of the parent responsible for providing health insurance. Health insurance is accessible to the child if the health insurance is available to be used in the county of the child‟s primary residence or in another county if the parent who has the most time under the time-sharing schedule agrees. If the time-sharing schedule provides for equal timesharing, health insurance is accessible to the child if the health insurance is available to be used in either county where the child resides or in another county if both parents agree. The court may require the obligor to provide health insurance or to reimburse the obligee for the cost of health insurance for the minor child when insurance is provided by the obligee. The court may deviate from what is presumed reasonable in cost only upon a written finding explaining its determination why ordering or not ordering the provision of health insurance or the reimbursement of the obligee‟s cost for providing health insurance for the minor child would be unjust or inappropriate. The court shall apportion the cost of health insurance, and any non-covered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation. The court may order that payment of non-covered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis. §61.13(1)(b), Florida Statutes. After the health insurance costs are added to the basic obligation, any moneys prepaid by a parent for health-related costs for the child or children of this action shall be deducted from that parent‟s child support obligation for that child or those children. §61.30(8), Florida Statutes. 46 C. Withholding The union or employer shall withhold in the following order: o Current support o Premium payments for health insurance o Past due support o Other medical support or insurance §61.13(1)(b)(5), Florida Statutes. If the combined amount to be withheld for current support plus the premium payment for health insurance exceeds the amount allowed under the Consumer Credit Protection Act, and the health insurance cannot be obtained unless the full amount of the premium is paid, the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order: o Current support o Past due support o Other medical support or insurance §61.13(1)(b)(5), Florida Statutes. The court cannot place a restriction on the Department of Revenue‟s statutory authority to withhold 40% of unemployment compensation benefits to satisfy a parent‟s child support obligations. Dept. of Revenue v. Varela, 67 So. 3d 1205, (Fla. 4th DCA 2011). D. Life Insurance To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose. §61.13(1)(c), Florida Statutes. E. Income deduction If both parties request and the court finds that it is in the best interest of the child, support payments need not be subject to immediate income deduction. §61.13(1)(d)(2), Florida Statutes. Support orders that are not subject to immediate income deduction may be directed through the depository or made payable directly to the obligee. 47 Payments made by immediate income deduction shall be made to the State Disbursement Unit. The court shall provide a copy of the order to the depository. §61.13(1)(d)(2), Florida Statutes. For support orders payable directly to the obligee, any party, or the Department of Revenue in a IV-D case, may subsequently file an affidavit with the depository alleging a default in payment of child support and stating that the party wishes to require that payments be made through the depository. The party shall provide copies of the affidavit to the court and to each other party. Fifteen days after receipt of the affidavit, the depository shall notify all parties that future payments shall be paid through the depository, except that income deduction payments shall be made to the State Disbursement Unit. §61.13(1)(d)(3), Florida Statutes. F. Mediation The court may refer the parties to mediation. §61.183(1), Florida Statutes. Costs: In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the non-prevailing obligor after the court makes a determination of the non-prevailing obligor‟s ability to pay such costs and fees. §61.183(1), Florida Statutes. Confidentiality: Any information from the files, reports, case summaries, mediator‟s notes, or other communications or materials relating to a mediation proceeding pursuant to this section obtained by any person performing mediation duties is exempt from inspection and copying. §61.183(3), Florida Statutes. G. Arriving at the correct amount Generally The child support guideline amount presumptively establishes the amount the court shall order as child support in an initial or modification proceeding for such support. §61.30(1)(a), Florida Statutes. 48 The court may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. §61.30(1)(a), Florida Statutes. The court may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. §61.30(1)(a), Florida Statutes. The court shall order payment of child support which varies from the guideline amount whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time [term defined in statute, §61.30(11)(b)8, Florida Statutes] with either parent, either temporarily or permanently. §61.30(1)(a), Florida Statutes. The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances. §61.30(1)(b), Florida Statutes. For each support order reviewed by the Department of Revenue, if the amount of the child support award under the order differs by at least 10 percent but not less than $25 from the amount that would be awarded, the Department of Revenue shall seek to have the order modified and any modification shall be made without a requirement for proof or showing of a change in circumstances. §61.30(1)(c), Florida Statutes. Each parent‟s percentage share of the child support need shall be determined by dividing each parent‟s net monthly income by the combined net monthly income. §61.30(9), Florida Statutes. Each parent‟s actual dollar share of the total minimum child support need shall be determined by multiplying the minimum child support need by each 49 parent‟s percentage share of the combined monthly net income. §61.30(10), Florida Statutes. If the recurring income is not sufficient to meet the needs of the child, the court may order child support to be paid from nonrecurring income or assets. §61.30(13), Florida Statutes. Gross Income Gross income includes but is not limited to the following: Salary or wages. Bonuses, commissions, allowances, overtime, tips, and other similar payments. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income. Disability benefits. All workers‟ compensation benefits and settlements. Unemployment compensation. Pension, retirement, or annuity payments. Social security benefits. Spousal support received from a previous marriage or court ordered in the marriage before the court. Interest and dividends. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income. Income from royalties, trusts, or estates. Reimbursed expenses or in kind payments to the extent that they reduce living expenses. Gains derived from dealings in property, unless the gain is nonrecurring. §61.30(2), Florida Statutes. Public assistance shall be excluded from gross income. §61.30(2)(c), Florida Statutes. Unemployed or Underemployed parents Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that 50 parent‟s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. §61.30(2)(b), Florida Statutes. No information available/imputing income If the information concerning a parent‟s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. §61.30(2)(b), Florida Statutes. The court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child. §61.30(2)(b), Florida Statutes. In order for the court to impute income at an amount other than the median income, the court must make specific findings of fact. The party seeking to impute income has the burden to present competent, substantial evidence that: o the unemployment or underemployment is voluntary; and o Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties‟ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan [term defined in statute, §61.046(14), Florida Statutes] or relevant order. §61.30(2)(b)(1), Florida Statutes. For purposes of establishing an obligation for support, if a person who is receiving public assistance is found to be non-cooperative, the Department of Revenue may submit to the court an affidavit or written declaration signed under penalty of perjury attesting to the income of that parent 51 based upon information available to the Department of Revenue. §61.30(15), Florida Statutes. Income may not be imputed based upon: o Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or o Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties‟ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order. §61.30(2)(b)(2), Florida Statutes. Net income The child support guidelines are based on the parents‟ combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household. §61.29, Florida Statutes. Net income is obtained by subtracting allowable deductions from gross income. Allowable deductions include: o Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities. o Federal insurance contributions or self-employment tax. o Mandatory union dues. o Mandatory retirement payments. o Health insurance payments, excluding payments for coverage of the minor child. o Court-ordered support for other children which is actually paid. o Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court. §61.30(3), Florida Statutes. o Net income for each parent shall be computed by subtracting allowable deductions from gross income. §61.30(4), Florida Statutes. o Net income for each parent shall be added together for a combined net income. §61.30(5), Florida Statutes. 52 If the obligor parent‟s net income is less than the amount in the guidelines schedule: The parent should be ordered to pay a child support amount, determined on a case-by-case basis, to establish the principle of payment and lay the basis for increased support orders should the parent‟s income increase. The obligor parent‟s child support payment shall be the lesser of the obligor parent‟s actual dollar share of the total minimum child support amount and 90 percent of the difference between the obligor parent‟s monthly net income and the current poverty guidelines as periodically updated in the Federal Register by the United States Department of Health and Human Services pursuant to 42 U.S.C. s. 9902(2) for a single individual living alone. o For combined monthly net income greater than the amount in the guidelines schedule, the obligation is the minimum amount of support provided by the guidelines schedule plus the following percentages multiplied by the amount of income over $10,000: Child or Children One Two Three Four Five Six 5.0% 7.5% 9.5% 11.0% 12.0% 12.5% §61.30(6), Florida Statutes. Speed Credit - The child support guidelines allow for a deduction from gross income for support that is actually paid for later born children by court ordered support. It is within the court‟s discretion to subtract the amount of child support the payor would have been required to pay for the two children‟s support if the payor and the payee‟s spouse had divorced, or to consider the pre-existing support obligation in computing child support. Speed v. Dept. of Revenue, 749 So. 2d 510 (Fla. 2d DCA 1999). Table 1 Guidelines - Schedule effective as of April, 2012. Guidelines COMBINED MONTHLY NET INCOME 800 850 900 950 1000 Schedule ONE CHILD 190 202 213 224 235 TWO CHILDREN THREE CHILDREN FOUR CHILDREN FIVE CHILDREN SIX CHILDREN 211 257 302 347 365 213 259 305 351 397 216 262 309 355 402 218 265 312 359 406 220 268 315 363 410 53 1050 1100 1150 246 258 269 382 400 417 443 489 522 448 495 541 453 500 547 458 505 553 1200 1250 1300 1350 1400 1450 1500 1550 1600 1650 1700 1750 1800 1850 1900 1950 2000 2050 2100 2150 2200 2250 2300 2350 2400 2450 2500 2550 2600 2650 2700 2750 2800 280 290 300 310 320 330 340 350 360 370 380 390 400 410 421 431 442 452 463 473 484 494 505 515 526 536 547 557 568 578 588 597 607 435 451 467 482 498 513 529 544 560 575 591 606 622 638 654 670 686 702 718 734 751 767 783 799 815 831 847 864 880 896 912 927 941 544 565 584 603 623 642 662 681 701 720 740 759 779 798 818 839 859 879 899 919 940 960 980 1000 1020 1041 1061 1081 1101 1121 1141 1160 1178 588 634 659 681 702 724 746 768 790 812 833 855 877 900 923 946 968 991 1014 1037 1060 1082 1105 1128 1151 1174 1196 1219 1242 1265 1287 1308 1328 594 641 688 735 765 789 813 836 860 884 907 931 955 979 1004 1029 1054 1079 1104 1129 1154 1179 1204 1229 1254 1279 1304 1329 1354 1379 1403 1426 1448 600 648 695 743 790 838 869 895 920 945 971 996 1022 1048 1074 1101 1128 1154 1181 1207 1234 1261 1287 1314 1340 1367 1394 1420 1447 1473 1500 1524 1549 54 2850 2900 2950 3000 3050 3100 3150 3200 3250 3300 3350 3400 3450 3500 3550 3600 3650 3700 3750 3800 3850 3900 3950 4000 4050 4100 4150 4200 4250 4300 4350 4400 4450 4500 4550 4660 4650 616 626 635 644 654 663 673 682 691 701 710 720 729 738 748 757 767 776 784 793 802 811 819 828 837 846 854 863 872 881 889 898 907 916 924 933 942 956 971 986 1001 1016 1031 1045 1060 1075 1090 1105 1120 1135 1149 1164 1179 1194 1208 1221 1234 1248 1261 1275 1288 1302 1315 1329 1342 1355 1369 1382 1396 1409 1423 1436 1450 1463 1197 1215 1234 1252 1271 1289 1308 1327 1345 1364 1382 1401 1419 1438 1456 1475 1493 1503 1520 1536 1553 1570 1587 1603 1620 1637 1654 1670 1687 1704 1721 1737 1754 1771 1788 1804 1821 1349 1370 1391 1412 1433 1453 1474 1495 1516 1537 1558 1579 1599 1620 1641 1662 1683 1702 1721 1740 1759 1778 1797 1816 1835 1854 1873 1892 1911 1930 1949 1968 1987 2006 2024 2043 2062 55 1471 1494 1517 1540 1563 1586 1608 1631 1654 1677 1700 1723 1745 1768 1791 1814 1837 1857 1878 1899 1920 1940 1961 1982 2002 2023 2044 2064 2085 2106 2127 2147 2168 2189 2209 2230 2251 1573 1598 1622 1647 1671 1695 1720 1744 1769 1793 1818 1842 1867 1891 1915 1940 1964 1987 2009 2031 2053 2075 2097 2119 2141 2163 2185 2207 2229 2251 2273 2295 2317 2339 2361 2384 2406 4700 4750 4800 4850 4900 4950 5000 5050 5100 5150 5200 5250 5300 5350 5400 5450 5500 5550 5600 5650 5700 5750 5800 5850 5900 5950 6000 6050 6100 6150 6200 6250 6300 6350 6400 6450 6500 951 959 968 977 986 993 1000 1006 1013 1019 1025 1032 1038 1045 1051 1057 1064 1070 1077 1083 1089 1096 1102 1107 1111 1116 1121 1126 1131 1136 1141 1145 1150 1155 1160 1165 1170 1477 1490 1503 1517 1530 1542 1551 1561 1571 1580 1590 1599 1609 1619 1628 1638 1647 1657 1667 1676 1686 1695 1705 1713 1721 1729 1737 1746 1754 1762 1770 1778 1786 1795 1803 1811 1819 1838 1855 1871 1888 1905 1927 1939 1952 1964 1976 1988 2000 2012 2024 2037 2049 2061 2073 2085 2097 2109 2122 2134 2144 2155 2165 2175 2185 2196 2206 2216 2227 2237 2247 2258 2268 2278 2081 2100 2119 2138 2157 2174 2188 2202 2215 2229 2243 2256 2270 2283 2297 2311 2324 2338 2352 2365 2379 2393 2406 2418 2429 2440 2451 2462 2473 2484 2495 2506 2517 2529 2540 2551 2562 56 2271 2292 2313 2334 2354 2372 2387 2402 2417 2432 2447 2462 2477 2492 2507 2522 2537 2552 2567 2582 2597 2612 2627 2639 2651 2663 2676 2688 2700 2712 2724 2737 2749 2761 2773 2785 2798 2428 2450 2472 2494 2516 2535 2551 2567 2583 2599 2615 2631 2647 2663 2679 2695 2711 2727 2743 2759 2775 2791 2807 2820 2833 2847 2860 2874 2887 2900 2914 2927 2941 2954 2967 2981 2994 6550 6600 6650 6700 6750 6800 6850 6900 6950 7000 7050 7100 7150 7200 7250 7300 7350 7400 7450 7500 7550 7600 7650 7700 7750 7800 7850 7900 7950 8000 8050 8100 8150 8200 8250 8300 8350 1175 1179 1184 1189 1193 1196 1200 1204 1208 1212 1216 1220 1224 1228 1232 1235 1239 1243 1247 1251 1255 1259 1263 1267 1271 1274 1278 1282 1286 1290 1294 1298 1302 1306 1310 1313 1317 1827 1835 1843 1850 1856 1862 1868 1873 1879 1885 1891 1897 1903 1909 1915 1921 1927 1933 1939 1945 1951 1957 1963 1967 1975 1981 1987 1992 1998 2004 2010 2016 2022 2028 2034 2040 2046 2288 2299 2309 2317 2325 2332 2340 2347 2355 2362 2370 2378 2385 2393 2400 2408 2415 2423 2430 2438 2446 2453 2461 2468 2476 2483 2491 2498 2506 2513 2521 2529 2536 2544 2551 2559 2566 2573 2584 2595 2604 2613 2621 2630 2639 2647 2656 2664 2673 2681 2690 2698 2707 2716 2724 2733 2741 2750 2758 2767 2775 2784 2792 2801 2810 2818 2828 2835 2844 2852 2861 2869 2878 2887 57 2810 2822 2834 2845 2854 2863 2872 2882 2891 2900 2909 2919 2928 2937 2946 2956 2965 2974 2983 2993 3002 3011 3020 3030 3039 3048 3057 3067 3076 3085 3094 3104 3113 3122 3131 3141 3150 3008 3021 3034 3045 3055 3064 3074 3084 3094 3103 3113 3123 3133 3142 3152 3162 3172 3181 3191 3201 3211 3220 3230 3240 3250 3259 3269 3279 3289 3298 3308 3318 3328 3337 3347 3357 3367 8400 8450 8500 8550 8600 8650 8700 8750 8800 8850 8900 8950 9000 9050 9100 9150 9200 9250 9300 9350 9400 9450 9500 9550 9660 9600 9650 9700 9750 9800 9850 9900 9950 10000 1321 1325 1329 1333 1337 1341 1345 1349 1352 1356 1360 1364 1368 1372 1376 1380 1384 1388 1391 1395 1399 1403 1407 1411 1415 1415 1419 1422 1425 1427 1430 1432 1435 1437 2052 2058 2064 2070 2076 2082 2088 2094 2100 2106 2111 2117 2123 2129 2135 2141 2147 2153 2159 2165 2171 2177 2183 2189 2195 2195 2201 2206 2210 2213 2217 2221 2225 2228 2574 2581 2589 2597 2604 2612 2619 2627 2634 2642 2649 2657 2664 2672 2680 2687 2695 2702 2710 2717 2725 2732 2740 2748 2755 2755 2763 2767 2772 2776 2781 2786 2791 2795 2895 2904 2912 2921 2929 2938 2946 2955 2963 2972 2981 2989 2998 3006 3015 3023 3032 3040 3049 3058 3066 3075 3083 3092 3100 3100 3109 3115 3121 3126 3132 3137 3143 3148 58 3159 3168 3178 3187 3196 3205 3215 3224 3233 3242 3252 3261 3270 3279 3289 3298 3307 3316 3326 3335 3344 3353 3363 3372 3381 3381 3390 3396 3402 3408 3414 3420 3426 3432 3376 3386 3396 3406 3415 3425 3435 3445 3454 3464 3474 3484 3493 3503 3513 3523 3532 3542 3552 3562 3571 3581 3591 3601 3610 3610 3620 3628 3634 3641 3647 3653 3659 3666 Deviation from the Statutory Amount The court may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. §61.30(1)(a), Florida Statutes. The court may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. §61.30(1)(a), Florida Statutes. The court shall order payment of child support which varies from the guideline amount whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with either parent, either temporarily or permanently. §61.30(1)(a), Florida Statutes. See Dept. of Revenue ex. Rel. Sherman v. Daly, 74 So. 3d 165, (Fla. 1st DCA 2011) (underlying order providing for deviation due to verbal visitation agreement was reversed because the Legislature has expressed its intention to authorize deviations from the child support guidelines only where there exists a written, court-authorized parentingplan). In determining child support, a trial court must either follow the statutory guidelines or make findings and give reasons explaining any deviation. Morrow v. Frommer, 913 So. 2d 1195 (Fla. 4th DCA 2005). The court may adjust the total minimum child support award, or either or both parents‟ share of the total minimum child support award, based upon the following deviation factors: Extraordinary medical, psychological, educational, or dental expenses. Independent income of the child, not to include moneys received by a child from supplemental security income. The payment of support from a parent which has been regularly paid and for which there is a demonstrated need. Seasonal variations in one or both parents‟ incomes or expenses. The age of the child, taking into account the greater needs of older children. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even 59 though fulfilling those needs will cause the support to exceed the presumptive amount established by the guidelines. Total available assets of the obligee, obligor, and the child. The impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments. An application of the child support guidelines schedule that requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order. The particular parenting plan, such as where the child spends a significant amount of time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child. “Parenting plan” means a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child. The parenting plan must be: 1. Developed and agreed to by the parents and approved by a court; or 2. Established by the court, with or without the use of a court-ordered parenting plan recommendation, if the parents cannot agree to a plan or the parents agreed to a plan that is not approved by the court. §61.046(14), Florida Statutes. “Time-sharing schedule” means a timetable that must be included in the parenting plan that specifies the time, including overnights and holidays, that a minor child will spend with each parent. The time-sharing schedule shall be: 1. Developed and agreed to by the parents of a minor child and approved by the court; or 2. Established by the court if the parents cannot agree or if their agreed-upon schedule is not approved by the court. §61.046(23), Florida Statutes. For purposes of adjusting any award of child support under this section, “substantial amount of time” means that a parent exercises time-sharing 60 at least 20 percent of the overnights of the year. §61.30(11)(b)8, Florida Statutes. (Emphasis added.) Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage. §61.30(11)(a), Florida Statutes. Whenever a particular parenting plan provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows: Calculate the amount of support obligation apportioned to each parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5. Calculate the percentage of overnight stays the child spends with each parent. Multiply each parent‟s support obligation as calculated by the percentage of the other parent‟s overnight stays with the child. The difference between the amounts shall be the monetary transfer necessary between the parents for the care of the child, subject to an adjustment for day care and health insurance expenses. Calculate the net amounts owed by each parent for the expenses incurred for day care and health insurance coverage for the child. Adjust the support obligation owed by each parent by crediting or debiting the amount calculated above. This amount represents the child support which must be exchanged between the parents. §61.30(11)(b), Florida Statutes. The court may deviate from the child support amount calculated based upon the obligee parent‟s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the timesharing schedule set forth in the parenting plan granted by the court, and whether all of the children are exercising the same time-sharing schedule. §61.30(11)(b)(7), Florida Statutes. 61 For purposes of adjusting any award of child support, “substantial amount of time” means that a parent exercises time-sharing at least 20 percent of the overnights of the year. §61.30(11)(b)(8), Florida Statutes. Child Care Child care costs incurred due to employment, job search, or education calculated to result in employment or to enhance the income of the current employment of either parent shall be added to the basic obligation. After the child care costs are added, any moneys prepaid by a parent for child care costs for the child or children of this action shall be deducted from that parent‟s child support obligation for that child or those children. Child care costs may not exceed the level required to provide quality care from a licensed source. §61.30(7), Florida Statutes. Retroactive Awards In an initial determination of child support, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following: The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor‟s demonstration of his or her actual income during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor‟s income at the time of the hearing in computing child support for the retroactive period. In IV-D cases, even if the obligor does not demonstrate the actual income during the retroactive period, if Department of Revenue has obtained records that do show the actual amount, then the information Department of Revenue has must be used by the court using the obligor‟s income at the time of the hearing in computing child support for the retroactive period. Salters v. Dept. of Revenue, Child Support Enforcement Program obo Mobley, 32 So. 3d 777 (Fla. 2d DCA 2010). All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period. The court should consider an installment payment plan for the payment of retroactive child support. 62 §61.30(17), Florida Statutes. Establishing income deduction orders Upon the entry of an order establishing or enforcing child support, or for alimony and child support, other than a temporary order, the court shall enter a separate order for income deduction if one has not been entered. §61.1301(1)(a), Florida Statutes. Upon the entry of a temporary order establishing support or the entry of a temporary order enforcing or modifying a temporary order of support, the court may enter a separate order of income deduction. §61.1301(1)(a), Florida Statutes. Copies of the income deduction order shall be served on the obligee and obligor. If the order establishing, enforcing, or modifying the obligation directs that payments be made through the depository, the court shall provide to the depository a copy of the order as well. §61.1301(1)(a), Florida Statutes. If the obligee is a recipient of Title IV-D services, the court shall furnish to the Department of Revenue (as the state‟s Title IV-D agency) a copy of the income deduction order and the order establishing, enforcing, or modifying the obligation. §61.1301(1)(a), Florida Statutes. The income deduction notice must state that it is based upon a valid support order and that it contains an income deduction requirement or upon a separate income deduction order. The income deduction notice must contain the notice to payor provisions and the case number, the court that entered the order, and the date entered. §61.1301(1)(a)(2), Florida Statutes. In non-Title IV-D cases, the income deduction notice must be accompanied by a copy of the support order upon which the notice is based. In Title IV-D cases, upon request of a payor, the Title IV-D agency shall furnish the payor a copy of the income deduction order. §61.1301(1)(a)(4), Florida Statutes. The income deduction order shall: Direct a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor‟s support obligation including any attorney‟s fees or costs owed and forward the deducted amount pursuant to the order. 63 State the amount of arrearage owed, if any, and direct a payor to withhold an additional 20 percent or more of the periodic amount specified in the order establishing, enforcing, or modifying the obligation, until full payment is made of any arrearage, attorney‟s fees and costs owed, provided no deduction shall be applied to attorney‟s fees and costs until the full amount of any arrearage is paid. Provide that if a delinquency accrues after the order establishing, modifying, or enforcing the obligation has been entered and there is no order for repayment of the delinquency or a preexisting arrearage, a payor shall deduct an additional 20 percent of the current support obligation or other amount agreed to by the parties until the delinquency and any attorney‟s fees and costs are paid in full. No deduction may be applied to attorney‟s fees and costs until the delinquency is paid in full. Direct a payor not to deduct in excess of the amounts allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b). Direct whether a payor shall deduct all, a specified portion, or no income which is paid in the form of a bonus or other similar one-time payment, up to the amount of arrearage reported in the income deduction notice or the remaining balance thereof, and forward the payment to the governmental depository. For purposes of this subparagraph, “bonus” means a payment in addition to an obligor‟s usual compensation and which is in addition to any amounts contracted for or otherwise legally due and shall not include any commission payments due an obligor. In Title IV-D cases, direct a payor to provide to the court depository the date on which each deduction is made. In Title IV-D cases, if an obligation to pay current support is reduced or terminated due to emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, direct the payor to continue the income deduction at the rate in effect immediately prior to emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in full or until the amount of withholding is modified. Direct that all payments in those cases in which the obligee is receiving Title IV-D services and in those cases in which the obligee is not receiving Title IV-D services in which the initial support order was issued in this state on or after January 1, 1994, and in which the obligor‟s child support obligation is being paid through income deduction, be made payable to and delivered to the State Disbursement Unit. Notwithstanding any other statutory provision to the contrary, funds received by the State 64 Disbursement Unit shall be held, administered, and disbursed by the State Disbursement Unit pursuant to the provisions of this chapter. §61.1301(1)(b), Florida Statutes. The income deduction order is effective immediately unless the court upon good cause shown finds that the income deduction order shall be effective upon a delinquency in an amount specified by the court but not to exceed 1 month‟s payment, pursuant to the order establishing, enforcing, or modifying the obligation. §61.1301(1)(c), Florida Statutes. In order to find good cause, the court must at a minimum make written findings that: o Explain why implementing immediate income deduction would not be in the child‟s best interest; o There is proof of timely payment of the previously ordered obligation without an income deduction order in cases of modification; and o There is an agreement by the obligor to advise the IV-D agency and court depository of any change in payor and health insurance; or There is a signed written agreement providing an alternative arrangement between the obligor and the obligee and, at the option of the IV-D agency, by the IV-D agency in IV-D cases in which there is an assignment of support rights to the state, reviewed and entered in the record by the court. §61.1301(1)(c), Florida Statutes. The income deduction order shall be effective as long as the order upon which it is based is effective or until further order of the court. In those cases in which the obligee is receiving Title IV-D services and in those cases in which the obligee is not receiving Title IV-D services in which the initial support order was issued in this state on or after January 1, 1994, and in which the obligor‟s child support obligation is being paid through income deduction, such payments shall be made payable to and delivered to the State Disbursement Unit. §61.1301(1)(d), Florida Statutes. When the court orders the income deduction to be effective immediately, the court shall furnish to the obligor a statement of his or her rights, remedies, and duties in regard to the income deduction order. The statement shall state: o All fees or interest which shall be imposed. 65 o The total amount of income to be deducted for each pay period until the arrearage, if any, is paid in full and shall state the total amount of income to be deducted for each pay period thereafter. The amount deducted may not be in excess of that allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. o That the income deduction order applies to current and subsequent payors and periods of employment. o That a copy of the income deduction order or, in Title IV-D cases, the income deduction notice, will be served on the obligor‟s payor or payors. o That enforcement of the income deduction order may only be contested on the ground of mistake of fact regarding the amount owed pursuant to the order establishing, enforcing, or modifying the obligation, the arrearages, or the identity of the obligor, the payor, or the obligee. o That the obligor is required to notify the obligee and, when the obligee is receiving IV-D services, the IV-D agency within 7 days of changes in the obligor‟s address, payors, and the addresses of his or her payors. o That in a Title IV-D case, if an obligation to pay current support is reduced or terminated due to emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, income deduction continues at the rate in effect immediately prior to emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in full or until the amount of withholding is modified. §61.1301(1)(e), Florida Statutes. Delinquencies: o If a support order was entered before January 1, 1994, the court orders the income deduction to be effective upon a delinquency, or a delinquency has accrued under an order entered before July 1, 2006, that established, modified, or enforced the obligation and there is no order for repayment of the delinquency or a preexisting arrearage, the obligee or, in Title IV-D cases, the Title IV-D agency may enforce the income deduction by serving a notice of delinquency on the obligor. §61.1301(1)(f), Florida Statutes. The notice of delinquency shall state: o The terms of the order establishing, enforcing, or modifying the obligation. o The period of delinquency and the total amount of the delinquency as of the date the notice is mailed. 66 o All fees or interest which may be imposed. o The total amount of income to be deducted for each pay period until the arrearage, and all applicable fees and interest, is paid in full and shall state the total amount of income to be deducted for each pay period thereafter. The amount deducted may not be in excess of that allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. o That the income deduction order applies to current and subsequent payors and periods of employment. o That a copy of the notice of delinquency will be served on the obligor‟s payor or payors, together with a copy of the income deduction order or, in Title IV-D cases, the income deduction notice, unless the obligor applies to the court to contest enforcement of the income deduction. If the income deduction order being enforced was rendered by the Title IVD agency pursuant to §409.2563, Florida Statutes, and the obligor contests the deduction, the obligor shall file a petition for an administrative hearing with the Title IV-D agency. The application or petition shall be filed within 15 days after the date the notice of delinquency was served. o That enforcement of the income deduction order may only be contested on the ground of mistake of fact regarding the amount owed pursuant to the order establishing, enforcing, or modifying the obligation, the amount of arrearages, or the identity of the obligor, the payor, or the obligee. o That the obligor is required to notify the obligee of the obligor‟s current address and current payors and of the address of current payors. All changes shall be reported by the obligor within 7 days. If the IV-D agency is enforcing the order, the obligor shall make these notifications to the agency instead of to the obligee. §61.1301(1)(f), Florida Statutes. The failure of the obligor to receive the notice of delinquency does not preclude subsequent service of the income deduction order or, in Title IV-D cases, the income deduction notice on the obligor‟s payor. A notice of delinquency which fails to state an arrearage does not mean that an arrearage is not owed. §61.1301(1)(f)(2), Florida Statutes. 67 Enforcement of income deduction orders Service The obligee or his or her agent shall serve an income deduction order and notice to payor, or, in Title IV-D cases, the Department of Revenue shall issue an income deduction notice, and in the case of a delinquency a notice of delinquency, on the obligor‟s payor unless the obligor has applied for a hearing to contest the enforcement of the income deduction. Service by or upon any person who is a party to a proceeding under this section shall be made in the manner prescribed in the Florida Rules of Civil Procedure for service upon parties. Service upon an obligor‟s payor or successor payor under this section shall be made by prepaid certified mail, return receipt requested, or in the manner prescribed in chapter 48, Florida Statutes. §61.1301(2)(a), Florida Statutes. Hearing The obligor, within 15 days after service of a notice of delinquency, may apply for a hearing to contest the enforcement of the income deduction on the ground of mistake of fact regarding the amount owed, the amount of the arrearage, or the identity of the obligor, the payor, or the obligee. §61.1301(2)(c)(1), Florida Statutes. The obligor shall send a copy of the pleading to the obligee and, if the obligee is receiving IV-D services, to the IV-D agency. The timely filing of the pleading shall stay service of an income deduction order or, in Title IV-D cases, income deduction notice on all payors of the obligor until a hearing is held and a determination is made as to whether enforcement of the income deduction order is proper. The payment of a delinquent obligation by an obligor upon entry of an income deduction order shall not preclude service of the income deduction order or, in Title IV-D cases, an income deduction notice on the obligor‟s payor. §61.1301(2)(c)(1), Florida Statutes. When an obligor timely requests a hearing to contest enforcement of an income deduction order, the court, after due notice to all parties and the IV-D agency if the obligee is receiving IV-D services, shall hear the matter within 20 days after the application is filed. The court shall enter an order resolving the matter within 10 days after the hearing. A copy of this order shall be served on the parties and the IV-D agency if the obligee is receiving IV-D services. If the court determines that income deduction is proper, it 68 shall specify the date the income deduction order must be served on the obligor‟s payor. §61.1301(2)(c)(2), Florida Statutes. When a court determines that an income deduction order is proper, the obligee or his or her agent shall cause a copy of the notice of delinquency to be served on the obligor‟s payors. A copy of the income deduction order or, in Title IV-D cases, income deduction notice, and in the case of a delinquency a notice of delinquency, shall also be furnished to the obligor. §61.1301(2)(d), Florida Statutes. The notice to payor or, in Title IV-D cases, income deduction notice shall contain only information necessary for the payor to comply with the order providing for income deduction. The notice shall: o Provide the obligor‟s social security number. o Require the payor to deduct from the obligor‟s income the amount specified in the income deduction order, and in the case of a delinquency the amount specified in the notice of delinquency, and to pay that amount to the obligee or to the depository, as appropriate. The amount actually deducted plus all administrative charges shall not be in excess of the amount allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b); o Instruct the payor to implement income deduction no later than the first payment date which occurs more than 14 days after the date the income deduction notice was served on the payor, and the payor shall conform the amount specified in the income deduction order or, in Title IV-D cases, income deduction notice to the obligor‟s pay cycle. The court should request at the time of the order that the payment cycle reflect that of the payor; o Instruct the payor to forward, within 2 days after each date the obligor is entitled to payment from the payor, to the obligee or to the depository the amount deducted from the obligor‟s income, a statement as to whether the amount totally or partially satisfies the periodic amount specified in the income deduction order or, in Title IV-D cases, income deduction notice, and the specific date each deduction is made. If the IV-D agency is enforcing the order, the payor shall make these notifications to the agency instead of the obligee; o Specify that if a payor fails to deduct the proper amount from the obligor‟s income, the payor is liable for the amount the payor should have deducted, plus costs, interest, and reasonable attorney‟s fees; 69 o Provide that the payor may collect up to $5 against the obligor‟s income to reimburse the payor for administrative costs for the first income deduction and up to $2 for each deduction thereafter; o State that the notice to payor or, in Title IV-D cases, income deduction notice, and in the case of a delinquency the notice of delinquency, are binding on the payor until further notice by the obligee, IV-D agency, or the court or until the payor no longer provides income to the obligor; o Instruct the payor that, when he or she no longer provides income to the obligor, he or she shall notify the obligee and shall also provide the obligor‟s last known address and the name and address of the obligor‟s new payor, if known; and that, if the payor violates this provision, the payor is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. If the IV-D agency is enforcing the order, the payor shall make these notifications to the agency instead of to the obligee. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction order; o State that the payor shall not discharge, refuse to employ, or take disciplinary action against an obligor because of the requirement for income deduction and shall state that a violation of this provision subjects the payor to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction, if any alimony or child support obligation is owing. If no alimony or child support obligation is owing, the penalty shall be paid to the obligor; o State that an obligor may bring a civil action in the courts of this state against a payor who refuses to employ, discharges, or otherwise disciplines an obligor because of income deduction. The obligor is entitled to reinstatement and all wages and benefits lost, plus reasonable attorney‟s fees and costs incurred; o Inform the payor that the requirement for income deduction has priority over all other legal processes under state law pertaining to the same income and that payment, as required by the notice to payor or income deduction notice, is a complete defense by the payor against any claims of the obligor or his or her creditors as to the sum paid; o Inform the payor that, when the payor receives notices to payor or income deduction notices requiring that the income of two or more obligors be deducted and sent to the same depository, the payor may combine the amounts that are to be paid to the depository in a single 70 payment as long as the payments attributable to each obligor are clearly identified; o Inform the payor that if the payor receives more than one notice to payor or income deduction notice against the same obligor, the payor shall contact the court or, in Title IV-D cases, the Title IV-D agency for further instructions. Upon being so contacted, the court or, in Title IV-D cases when all the cases upon which the notices are based are Title IV-D cases, the Title IV-D agency shall allocate amounts available for income deduction as provided in subsection (4); and o State that in a Title IV-D case, if an obligation to pay current support is reduced or terminated due to the emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, income deduction continues at the rate in effect immediately prior to emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in full or until the amount of withholding is modified. §61.1301(2)(e), Florida Statutes. At any time an income deduction order is being enforced, the obligor may apply to the court for a hearing to contest the continued enforcement of the income deduction with a copy to the obligee and, in IV-D cases, to the IV-D agency. If the income deduction order being enforced was rendered by the IV-D agency and the obligor contests the withholding, the obligor shall file a petition for an administrative hearing with the IV-D agency. The application or petition does not affect the continued enforcement of the income deduction until the court or IV-D agency, if applicable, enters an order granting relief to the obligor. The obligee or the IV-D agency is released from liability for improper receipt of moneys pursuant to an income deduction order upon return to the appropriate party of any moneys received. §61.1301(2)(f), Florida Statutes. An obligee or his or her agent shall enforce an income deduction order against an obligor‟s successor payor who is located in this state in the same manner prescribed in this section for the enforcement of an income deduction order against a payor. §61.1301(2)(g), Florida Statutes. When an income deduction order is to be enforced against a payor located outside the state, the obligee who is receiving IV-D services or his or her agent shall promptly request the agency responsible for income deduction in the other state to enforce the income deduction order. The request shall 71 contain all information necessary to enforce the income deduction order, including the amount to be periodically deducted, a copy of the order establishing, enforcing, or modifying the obligation, and a statement of arrearages, if applicable. §61.1301(2)(h)(1), Florida Statutes. When there is more than one income deduction notice against the same obligor, the amounts available for income deduction must be allocated among all obligee families as follows: o For computation purposes, all obligations must be converted to a common payroll frequency, and the percentage of deduction allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended, must be determined. The amount of income available for deduction is determined by multiplying that percentage by the obligor‟s net income. o If the total monthly support obligation to all families is less than the amount of income available for deduction, the full amount of each obligation must be deducted. o If the total monthly support obligation to all families is greater than the amount of income available for deduction, the amount of the deduction must be prorated, giving priority to current support, so that each family is allocated a percentage of the amount deducted. The percentage to be allocated to each family is determined by dividing each current support obligation by the total of all current support obligations. If the total of all current support obligations is less than the income available for deduction, and past due support is owed to more than one family, then the remainder of the available income must be prorated so that each family is allocated a percentage of the remaining income available for deduction. The percentage to be allocated to each family is determined by dividing each past due support obligation by the total of all past due support obligations. §61.1301(4), Florida Statutes. For income deduction orders entered before July 1, 2004, the Department of Revenue shall send by certified mail, restricted delivery, return receipt requested, a notice to the obligor at the most recent address provided by the obligor to the tribunal that issued the order or a more recent address if known, notice of this requirement, that the obligor may contest the withholding as provided by paragraph (2)(f), and that the obligor may request the tribunal that issued the income deduction to modify the amount of the withholding. This paragraph provides an additional remedy for collection of unpaid support and applies to cases in which a 72 support order or income deduction order was entered before, on, or after July 1, 2004. §61.1301(3)(b), Florida Statutes. If a delinquency accrues after an order establishing, modifying, or enforcing a support obligation has been entered, an income deduction order entered after July 1, 2006, is in effect, and there is no order for repayment of the delinquency or a preexisting arrearage, a payor who is served with an income deduction order or, in a Title IV-D case, an income deduction notice shall deduct an additional 20 percent of the current support obligation or other amount agreed to by the parties until the delinquency and any attorney‟s fees and costs are paid in full. No deduction may be applied to attorney‟s fees and costs until the delinquency is paid in full. §61.1301(3)(c), Florida Statutes. Interstate orders When the IV-D agency is requested by the agency responsible for income deduction in another state to enforce an income deduction order against a payor located in this state for the benefit of an obligee who is being provided IV-D services by the agency in the other state, the IV-D agency shall act promptly pursuant to the applicable provisions of this section. §61.1301(2)(h)(2), Florida Statutes. When an obligor who is subject to an income deduction order enforced against a payor located in this state for the benefit of an obligee who is being provided IV-D services by the agency responsible for income deduction in another state terminates his or her relationship with his or her payor, the IV-D agency shall notify the agency in the other state and provide it with the name and address of the obligor and the address of any new payor of the obligor, if known. §61.1301(2)(h)(3), Florida Statutes. The procedural rules and laws of this state govern the procedural aspects of income deduction whenever the agency responsible for income deduction in another state requests the enforcement of an income deduction order in this state. §61.1301(2)(h)(4)(a), Florida Statutes. Except with respect to when withholding must be implemented, which is controlled by the state where the order establishing, enforcing, or modifying the obligation was entered, the substantive law of this state shall apply whenever the agency responsible for income deduction in another 73 state requests the enforcement of an income deduction in this state. §61.1301(2)(h)(4)(b), Florida Statutes. When the IV-D agency is requested by an agency responsible for income deduction in another state to implement income deduction against a payor located in this state for the benefit of an obligee who is being provided IV-D services by the agency in the other state or when the IV-D agency in this state initiates an income deduction request on behalf of an obligee receiving IV-D services in this state against a payor in another state, pursuant to this section or the Uniform Interstate Family Support Act, the IV-D agency shall file the interstate income deduction documents, or an affidavit of such request when the income deduction documents are not available, with the depository and if the IV-D agency in this state is responding to a request from another state, provide copies to the payor and obligor. §61.1301(2)(h)(4)(c), Florida Statutes. The depository created pursuant to §61.181 shall accept the interstate income deduction documents or affidavit and shall establish an account for the receipt and disbursement of child support or child support and alimony payments and advise the IV-D agency of the account number in writing within 2 days after receipt of the documents or affidavit. §61.1301(2)(h)(4)(c), Florida Statutes. Employer action A person may not discharge, refuse to employ, or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this subsection is subject to a civil penalty not to exceed $250 for the first violation or $500 for any subsequent violation. Penalties shall be paid to the obligee or the IV-D agency, whichever is enforcing the income deduction, if any alimony or child support is owing. If no alimony or child support is owing, the penalty shall be paid to the obligor. §61.1301(2)(j)(1), Florida Statutes. Arrearages In a Title IV-D case, if an obligation to pay current support is reduced or terminated due to the emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, income deduction continues at the rate in effect immediately prior to emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in full or until the amount of withholding is modified. Any income-deducted amount that is in excess of the obligation to pay 74 current support shall be credited against the arrearages, retroactive support, delinquency, and costs owed by the obligor. §61.1301(3)(b), Florida Statutes. State Disbursement Unit/depository/direct pay The clerk of the court operates the child support depository, and each depository participates in the State Disbursement Unit. Payments on non-Title IV-D cases without income deduction orders shall not be sent to the State Disbursement Unit. §61.181(1)(a), Florida Statutes. For payments not required to be processed through the State Disbursement Unit, the depository shall collect and distribute all support payments paid into the depository to the appropriate party. §61.181(3)(a), Florida Statutes. When time-sharing of a child is relinquished by a parent who is entitled to receive child support moneys from the depository to the custody of a licensed or registered long-term care child agency, that agency may request from the court an order directing child support payments that would otherwise be distributed to the parent be distributed to the agency for the period of time that the child is with the agency. Thereafter, payments shall be distributed to the agency as if the agency were the parent until further order of the court. §61.181(3)(d), Florida Statutes. State Disbursement Unit The State Disbursement Unit is responsible for the collection and disbursement of payments for: All support cases enforced by the Department of Revenue pursuant to Title IV-D of the Social Security Act; and All child support cases not being enforced by the Department of Revenue pursuant to Title IV-D of the Social Security Act in which the initial support order was issued in this state on or after January 1, 1994, and in which the obligor‟s child support obligation is being paid through income deduction. §61.1824(1), Florida Statutes. 75 The State Disbursement Unit shall perform the following functions: Disburse all receipts from intercepts, including, but not limited to, United States Internal Revenue Service, unemployment compensation, lottery, and administrative offset intercepts. Provide employers and payors with one address to which all income deduction collections are sent. When there is more than one income deduction order being enforced against the same obligor by the payor, allocate the amounts available for income deduction. To the extent feasible, use automated procedures for the collection and disbursement of support payments, including, but not limited to, having procedures for: o Receipt of payments from obligors, employers, other states and jurisdictions, and other entities. o Timely disbursement of payments to obligees, the Department of Revenue, and other state Title IV-D agencies. o Accurate identification of payment source and amount. o Furnishing any parent, upon request, timely information on the current status of support payments under an order requiring payments to be made by or to the parent. o Electronic disbursement of support payments to obligees. §61.1824(3), Florida Statutes. Certified copies of payment records maintained by a depository shall, without further proof, be admitted into evidence in any legal proceeding in this state. §61.1301(2)(i), Florida Statutes. The depository created pursuant to §61.181 shall accept the interstate income deduction documents or affidavit and shall establish an account for the receipt and disbursement of child support or child support and alimony payments and advise the IV-D agency of the account number in writing within 2 days after receipt of the documents or affidavit. §61.1301(2)(h)(4)(c), Florida Statutes. Extraordinary expenses The court may adjust the total minimum child support award, or either or both parents' share of the total minimum child support award, based upon extraordinary medical, psychological, educational, or dental expenses. §61.30(11)(a), Florida Statutes. 76 Private educational expenses may be awarded only where the non-custodial parent has the ability to pay for that private school. Pollow v. Pollow, 712 So. 2d 1235 (Fla. 4th DCA 1998). A provision in a final decree of dissolution which required the father to pay tuition for private school with no limitation expressed should be construed to require the payment of tuition in a reasonable amount. Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980). Tax exemptions Section 61.30(11)(a), Florida Statutes, authorizes the courts to take into account the impact of the dependency exemption and waiver of that exemption when determining child support. The court does not have the power to allocate the federal tax dependency exemption. However, it can require the custodial parent to transfer the exemption to the noncustodial parent through the execution of a waiver if the non-custodial parent is current with his/her support payments. Geddies v. Geddies, 43 So. 3d 888 (Fla. 1st DCA 2010). Child support schedule in subsequent child situations If a parent with a support obligation has other children living with him or her who were born or adopted after the support obligation arose, the court, when considering an upward modification of an existing award, may disregard the income from secondary employment obtained in addition to the parent‟s primary employment if the court determines that the employment was obtained primarily to support the subsequent children. §61.30(12)(a), Florida Statutes. Except as provided above, the existence of such subsequent children should not as a general rule be considered by the court as a basis for disregarding the amount provided in the guidelines schedule. The parent with a support obligation for subsequent children may raise the existence of such subsequent children as a justification for deviation from the guidelines schedule. However, the income of the other parent of the subsequent children shall be considered by the court in determining 77 whether or not there is a basis for deviation from the guideline amount. §61.30(12)(b), Florida Statutes. The issue of subsequent children may only be raised in a proceeding for an upward modification of an existing award and may not be applied to justify a decrease in an existing award. §61.30(12)(c), Florida Statutes. Unless there are special circumstances, subsequent children will not justify a deviation from the child support guidelines. Mena v. Mena, 967 So. 2d 360 (Fla. 4th DCA 2007). 78 79 V. COLLECTION AND ENFORCEMENT OF SUPPORT I. Generally Venue - Venue for the collection and/or enforcement of child support is the county in which the petitioner resides or in which the obligor for the support is found. §61.17(1)(a), Florida Statutes. Enforcement (Also see previous section on income deduction orders) o Enforcement of child support is initially accomplished by the entry of an income deduction order. §61.1301(1)(a), Florida Statutes. o The entry of an income deduction order is mandatory for enforcement of current support and arrearages. §61.1301. See Dept. of Revenue v. Laporte, 735 So. 2d 574 (2d DCA 1999). o An income deduction order is effective immediately. The Court has discretion to stay the effective date of an income deduction order until the payments are one month delinquent. §61.1301(1)(c), Florida Statutes. o The Court must find good cause to stay an income deduction order. A showing of good cause must include: • Written findings that explain why implementing an income deduction would not be in the child‟s best interest, • In the case of modification, proof of timely payment of the previously ordered obligation without an income deduction order, and • Either an agreement by the obligor to advise the Title IV-D agency of a change in employment or health insurance coverage, or a signed written agreement providing an alternative agreement between the obligor and obligee. §61.1301(1)(c), Florida Statutes. o In extraordinary or compelling circumstances, a court may decline to enforce a past-due obligation to pay child support. Fox v. Haislett, 388 So. 2d 1261(Fla. 2d DCA 1980). II. Methods for Enforcement/Collection Garnishment Federal pay is subject to garnishment for members of the military and civil employees of the United States. 42 U.S.C. 659 (Social Security Act, section 459 added by Pub.L. 93-647, part B, sec. 101(a), 88 Stat. 2357, as amended 80 by the Tax Reform and Simplification Act of 1977, Pub.L. 95-30, title V, sec. 502, 91 Stat. 157). Suspension of an obligor‟s driver‟s license and/or vehicle registration. §61.13016, Florida Statutes. The suspension process may be initiated by the Title IV-D agency, or, upon request of the obligee, the depository or the Clerk of the Court once an obligor becomes delinquent. §61.13016, Florida Statutes. The obligor must file a petition to contest a notification that his or her license is being suspended within 20 days of notification. §61.13016(1)(c)(1)(c), Florida Statutes. The court must hear the motion contesting the driver‟s license suspension within 15 days of the filing of a motion. An order must be entered within 10 days of the hearing. §61.13016(2)(b), Florida Statutes. The court must treat the sanction of a driver‟s license suspension in the same manner as a contempt sanction for which the court must find a present ability to pay any purge amount set. Larsen v. Larsen, 901 So. 2d 327 (Fla. 4th DCA 2005). Writs When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against the party or the property and make such orders as will secure support to the party who should receive it. §61.11(1), Florida Statutes. The writ must include, at a minimum, information on the respondent‟s physical description and location as is required for entry of the writ into the Florida Crime Information Center telecommunications system. The writ shall direct that service and execution of the writ may be made on any day of the week and any time of the day or night. §61.11(2)(a), Florida Statutes. 81 The writ shall be enforceable in all counties of the state. §61.11(2)(c), Florida Statutes. Attachment or garnishment of the salary of the parent. §61.12, Florida Statutes. Denial or suspension of professional licenses or certificates. This suspension process may be initiated by an obligee and covers all licenses issued pursuant to Chapters 409, 455, 456, 559, and 1012, Florida Statutes. §61.13015(1), Florida Statutes. Some of the types of licenses or certificates that may be suspended: o Family foster homes o Child placing agencies o Certified public accountants o Real estate o Teaching o Physicians, including Osteopathic Doctors o Nursing o Pharmacist o Collection agents The party seeking enforcement must give notice of the delinquency to the obligor that he or she is delinquent and that the obligor has 30 days in which to pay the delinquency or to reach an agreement for payment of the delinquency. This notice must provide that if payment is not made or an agreement cannot be reached, the license or certificate may be denied or suspended. §61.13015(2), Florida Statutes. If the delinquency is not paid or an agreement is not reached within 30 days, a second notice must be sent giving the obligor 30 days to either pay the delinquency or reach an agreement for payment of the delinquency. If the obligor fails to respond to either notice or fails to pay the delinquency or reach an agreement, the obligee may petition the court to deny the application or suspend the license or certificate. §61.13015(3), Florida Statutes. The court may find that denial or suspension is inappropriate if: 82 o Irreparable harm would occur to the obligor or would not accomplish the objective of a denial or a suspension; or o The obligor demonstrates a good faith effort to reach an agreement with the obligee. §61.13015(3)(a-b), Florida Statutes. o The court may not deny or suspend a license if an alternative remedy exists which would accomplish the objective of collecting a delinquency. §61.13015(3), Florida Statutes. o Lien on proceeds of lump sum workmen‟s compensation settlement. §61.14 (8)(a), Florida Statutes. o Civil Contempt: This procedure is to compel compliance with a court order. The requirements for proceeding on a Motion for Civil Contempt are: Filing of a motion. Actual notice to obligor. The notice must contain the following language (in bold): FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD. Hearing. Fla. Fam. L. R. P. 12.615(a-c). When a court of competent jurisdiction enters an order for the payment of child support, the court shall make a finding of the obligor's imputed or actual present ability to comply with the order. If the obligor subsequently fails to pay alimony or support and a contempt hearing is held, the original order of the court creates a presumption that the obligor has the present ability to pay the alimony or support and to purge himself or herself from the contempt. At the contempt hearing, the obligor shall have the burden of proof to show that he or she lacks the ability to purge himself or herself from the contempt. The court shall state in its order the reasons for granting or denying the contempt. §61.14(5)(a), Florida Statutes. The requirements for a finding of indirect civil contempt after hearing the evidence presented: o The movant must show that a prior court order directed the party to pay the support and that the party in default has failed to make the ordered payments. o The defaulting party must then dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which 83 intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. o The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. o If the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. o If incarceration is appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order, and may look at all assets from which the amount might be obtained. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). Recommended orders from a hearing officer must contain detailed findings of fact to support the recommendation. Gregory v. Rice, 727 So. 2d 251 (Fla. 1999). The sanctions which may be imposed may include: o Incarceration. The purpose of a civil contempt proceeding is to obtain compliance with a court order. Because incarceration is utilized solely to obtain compliance and not to punish, it must be used only when the contemnor has the ability to comply. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). Note: There are no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support because if the parent has the ability to pay, there is no indigency, and if the parent is indigent, there is no threat of imprisonment. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). However, see Turner v. Rodgers, 131 S.Ct. 2507 (2011), which holds that although the due process clause does not automatically require the state to provide counsel to indigent parents subject to a civil contempt proceeding, certain safeguards should be required so that the civil proceeding is fair. The state must have adequate procedural safeguards that assure a fundamentally fair determination of whether the noncustodial parent has the present ability to comply with the contempt order. It noted that the following procedures, if employed together, could significantly reduce the risk of an erroneous deprivation of liberty: 1) notice to the defendant that his “ability to 84 pay” is a critical issue in the contempt proceeding; 2) the use of a form (or the equivalent) to elicit relevant financial information; 3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and 4) an express finding by the court that the defendant has the ability to pay. o A purge must be reasonable. The Court may look at all the obligor‟s assets to determine his or her ability to purge. Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997). If obligor is unemployed or underemployed, the Court may order that he or she: o Seek employment; o File periodic reports with the Court detailing the obligor‟s efforts to obtain employment; o Notify the Court that he or she has obtained employment, income or property; or o Participate in job training, job placement or other work programs §61.14 (5)(b), Florida Statutes. The Court may issue an Order for a writ of bodily attachment when an obligor has been duly notified and fails or refuses to appear for a hearing. Fla. Fam. L. R. P. 12.615 (c)(2)(b). Direct Criminal Contempt: Criminal contempt proceedings are appropriate when the party in default has continually and willfully neglected his support obligations, or has affirmatively acted to divest himself of assets and property. This procedure is used to punish the contemnor. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). The requirements for proceeding on a Motion for Indirect Criminal Contempt are: An affidavit based on personal knowledge, and An Order to Show Cause detailing all essential facts as to the criminal contempt charge. Appointment of a public defender. Trial. If contemnor is found guilty, he or she must have an opportunity to present mitigating circumstances. Fla. R. Crim. Pr. 3.840. 85 The defendants in criminal proceedings are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. Sando v. State, 972 So. 2d 271 (Fla. 4th DCA 2008). Attorney‟s Fees o After considering the financial resources of both parties, the court may order a party to pay a reasonable amount for attorney‟s fees, suit money, and the cost to the other party of maintaining or defending, enforcing, or modifying child support and appeals. o If a non compliant party is without justification for failing to follow a court order, the court may not award attorney‟s fees, suit money, and costs to the noncompliant party. o No corroborating expert testimony is necessary. o The trial court maintains continuing jurisdiction to make temporary attorney‟s fees and costs awards reasonably necessary to prosecute or defend an appeal. o Fees may be assessed against the Department of Revenue pursuant to s. 57.105(1), Florida Statutes. §61.16(1), Florida Statutes. ADDITIONAL COLLECTION METHODS AVAILABLE SOLELY TO TITLE IV-D AGENCY In addition to the above methods for enforcement and collection of child support, the Title IV-D agency, designated in Florida as the Florida Department of Revenue, has the following additional options to enforce and collect child support: Interception of unemployment compensation benefits. §443.051, Florida Statutes. Interception of Federal Income Tax Refund. §409.2557(3)(j), Florida Statutes; 42 U.S.C.A. § 654. Collection of Florida Lottery prize winnings §24.115(4), Florida Statutes. Denial, revocation, or limitation of United States Passport. §409.2557(3)(j), Florida Statutes; 42 U.S.C.A. § 652. See also Dept. of Revenue v Walton, No, 1DO8-5625 (Fla. 1st DCA 2009) and Dept. of Revenue ex rel. Jackson v. Nesbitt, 975 So. 2d 549 (Fla. 4th DCA 2008) (Trial court not authorized to order Department of Revenue to remove passport restrictions). Bank levies. §409.25656, Florida Statutes; 42 U.S.C.A. § 666. Credit reporting. §61.1354, Florida Statutes; 42 U.S.C.A. § 666. Interception of unclaimed property. §409.25658, Florida Statutes. Administrative offset of Federal vendor payments. 31 U.S.C.A. § 3716 86 87 VII. INTERSTATE AND INTERNATIONAL FULL FAITH AND CREDIT (Note: Chapter 88, Florida Statutes, has been amended to encompass UIFSA 2008 with a future implementation date.) III. Full Faith and Credit IV. Federal law requires states to give full faith and credit to orders from other states. U.S.C.A. Const. Art. 4, § 1. In the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (1994), Congress established national standards for determining jurisdiction to issue a child support order and the effect courts must give to orders from other states. Under this act, courts must enforce a child support order from another state if it is consistent with FFCCSOA. Also, a court cannot modify the order of another state unless the new state has jurisdiction, and the issuing state must no longer have continuing exclusive jurisdiction. The court was required to enforce a child support provision of an Alabama divorce decree which obligated the father to support an adult child while child was in college, even though Florida courts do not award child support to adult children. Elortegui v. Elortegui, 616 So. 2d 69 (Fla. 3d DCA 1993). Judgments are only entitled to full faith and credit as to the individuals who were parties to the other court‟s proceedings or who were given notice and an opportunity to be heard. MacRai-Billewicz v. Billewicz, 67 So. 3d 226 (Fla. 2d DCA 2010). The Uniform Interstate Family Support Act The Uniform Interstate Family Support Act (UIFSA) was originally enacted in 1996 and addresses the complications found in enforcing child support orders across state lines. Florida adopted UIFSA (1996) effective July 1, 1997, which was codified in Chapter 88, Florida Statutes. Unless otherwise noted, the sections of Chapter 88 referenced in this section will take effect upon the earlier of 90 days following Congress amending 42 U.S.C. s. 666(f) to allow or require states to adopt the 2008 version of the Uniform Interstate Family Support Act, or 90 days following the state obtaining a waiver of its state plan requirement under Title IV-D of the Social Security 88 Act. UIFSA provides national uniform rules for the enforcement of family support orders by: o Addressing jurisdiction standards, including continuing exclusive jurisdiction (CEJ). o Establishing rules to determine which state has issued the controlling order if proceedings have occurred in multiple jurisdictions. o Providing rules for modification of other state‟s orders. V. Jurisdiction In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if: o The individual is personally served with citation, summons, or notice within this state; o The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; o The individual resided with the child in this state; o The individual resided in this state and provided prenatal expenses or support for the child; o The child resides in this state as a result of the acts or directives of the individual; o The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; o The individual asserted parentage of a child in a tribunal or in a putative father registry maintained in this state by the appropriate agency; or o There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction. §88.2011, Florida Statutes. Personal jurisdiction in a proceeding relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order. §88.2021, Florida Statutes. A tribunal may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state or a foreign country only if: o The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign 89 country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country; o The contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and o If relevant, this state is the home state of the child. §88.2041(1), Florida Statutes. A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or a foreign country if: o The petition or comparable pleading in the other state or the foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state; o The contesting party timely challenges the exercise of jurisdiction in this state; and o If relevant, the other state or the foreign country is the home state of the child. §88.2041(2), Florida Statutes. A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and: o At the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or o Even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order. §88.2051(1), Florida Statutes. A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if: o All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or o Its order is not the controlling order. §88.2051(2), Florida Statutes. 90 If a tribunal of another state has issued a child support order pursuant to this act or a law substantially similar to this act which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state. §88.2051(3), Florida Statutes. A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state. §88.2051(4), Florida Statutes. A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing exclusive jurisdiction in the issuing tribunal. §88.2051(5), Florida Statutes. A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce: o The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act; or o A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order. o §88.2061(1), Florida Statutes. A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order. §88.2061(2), Florida Statutes. If a proceeding is brought under this act and only one tribunal has issued a child support order, the order of that tribunal controls and must be recognized. §88.2071(1), Florida Statutes. If a proceeding is brought under this act, and two or more child support orders have been issued by tribunals of this state, another state, or a foreign country with regard to the same obligor and the same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls and must be recognized : o If only one of the tribunals would have continuing, exclusive jurisdiction under this act, the order of that tribunal controls. 91 o If more than one of the tribunals would have continuing, exclusive jurisdiction under this act: An order issued by a tribunal in the current home state of the child controls; or If an order has not been issued in the current home state of the child, the order most recently issued controls. o If none of the tribunals would have continuing, exclusive jurisdiction under this act, the tribunal of this state shall issue a child support order, which controls. §88.2071(2), Florida Statutes. If two or more child support orders have been issued for the same obligor and the same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (2). The request may be filed with a registration for enforcement or registration for modification pursuant to part VI of this chapter, or may be filed as a separate proceeding. §88.2071(3), Florida Statutes. A request to determine which is the controlling order must be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination. §88.2071(4), Florida Statutes. The tribunal that issued the controlling order under subsection (1), subsection (2), or subsection (3) has continuing jurisdiction to the extent provided in s. 88.2051 or s. 88.2061. §88.2071(5), Florida Statutes. A tribunal of this state that determines by order which is the controlling order under paragraph (2)(a), paragraph (2)(b), or subsection (3) or that issues a new controlling order under paragraph (2)(c) shall state in that order: o The basis upon which the tribunal made its determination; o The amount of prospective support, if any; and o The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by s. 88.2091. §88.2071(6), Florida Statutes. Within 30 days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that 92 fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order. §88.2071(7), Florida Statutes. An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this act. §88.2071(8), Florida Statutes. VI. Petition to establish support order/temporary orders If a support order entitled to recognition under this act has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if: o The individual seeking the order resides outside this state; or o The support enforcement agency seeking the order is located outside this state. §88.4011(1), Florida Statutes. The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is: o o o o o o o o A presumed father of the child; Petitioning to have his paternity adjudicated; Identified as the father of the child through genetic testing; An alleged father who has declined to submit to genetic testing; Shown by clear and convincing evidence to be the father of the child; An acknowledged father The mother of the child; or An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated. §88.4011(2), Florida Statutes. Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to §88.3051, Florida Statutes. §88.4011(3), Florida Statutes. 93 VII. Direct Enforcement of Order from another State without Registration An income-withholding order issued in another state may be sent to the person or entity defined as the obligor's employer under Florida‟s income deduction law or payor without first filing a petition or comparable pleading or registering the order with a tribunal of this state. §88.5011, Florida Statutes. An employer who willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state. §88.5051, Florida Statutes. An obligor may contest the validity or enforcement of an incomewithholding order issued in another state and received directly by an employer in this state in the same manner as if the order had been issued by a tribunal of this state. The obligor shall give notice of the contest to: o A support enforcement agency providing services to the obligee; o Each employer that has directly received an income-withholding order; and o The person or agency designated to receive payments in the incomewithholding order, or if no person or agency is designated, to the obligee. §88.5061, Florida Statutes. VIII. Registration for Enforcement A support order or an income-withholding order issued in another state or a foreign support order may be registered in this state for enforcement. §88.6011, Florida Statutes. The registering tribunal must send notice to the non-registering party accompanied by a copy of the registered order. §88.6051, Florida Statutes. Service of process is not required. Department of Revenue v. Cuevas, 862 So. 2d 810 (Fla. 4th DCA 2003). The registration is complete upon filing. If no contest is filed within 20 days after notice of registration, the order is confirmed by operation of law. A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state. §88.6031(1), Florida Statutes. 94 A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state. §88.6031(2), Florida Statutes. Except as otherwise provided in this act, a tribunal of this state shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction. §88.6031(3), Florida Statutes. A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses: o The issuing tribunal lacked personal jurisdiction over the contesting party; o The order was obtained by fraud; o The order has been vacated, suspended, or modified by a later order; o The issuing tribunal has stayed the order pending appeal; o There is a defense under the law of this state to the remedy sought; o Full or partial payment has been made; o The statute of limitation under s. 88.6041 precludes enforcement of some or all of the alleged arrearages; or o The alleged controlling order is not the controlling order. §88.6071(1), Florida Statutes. IX. Modification A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in §§88.601188.6081 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification. §88.6091, Florida Statutes. If §88.6131 does not apply, upon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state if, after notice and hearing, the tribunal finds that: o The following requirements are met: 1. Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; 2. A petitioner who is a nonresident of this state seeks modification; and 95 3. The respondent is subject to the personal jurisdiction of the tribunal of this state; or o This state is the state of residence of the child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing exclusive jurisdiction. §88.6111(1), Florida Statutes. Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner. §88.6111(2), Florida Statutes. A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls and must be so recognized under §88.2071 establishes the aspects of the support order which are non-modifiable. §88.6111(3), Florida Statutes. In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state. §88.6111(4), Florida Statutes. On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing exclusive jurisdiction. §88.6111(5), Florida Statutes. Notwithstanding subsections (1)-(5) and §88.2011(2), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if: o One party resides in another state; and o The other party resides outside the United States. §88.6111(6), Florida Statutes. 96 97 VIII. MODIFICATION OF CHILD SUPPORT ORDERS Note: the Florida Bar Continuing Legal Education Department has an excellent chapter on modification of child support that has been included in this Benchbook. See tab 2. A. B. Generally At any time, any party, including the IV-D agency, may apply to the court to: o Modify, suspend, or terminate the income deduction order in accordance with a modification, suspension, or termination of the support provisions in the underlying order; or o Modify the amount of income deducted when the arrearage has been paid. §61.1301(1)(g), Florida Statutes. Pursuant to §61.13(1)(a), Florida Statutes, child support payments may be modified when in the best interests of the child, when the child reaches majority, or when there is a substantial change in the circumstances of the parties. The change in circumstances must be significant, material, involuntary, and permanent in nature. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA 1996); Bunassar v. Diaz, 804 So. 2d 487 (Fla. 3d DCA 2001). When the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA 1996). A parent‟s failure to regularly exercise the court-ordered or agreed timesharing schedule not caused by the other parent shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed timesharing schedule. §61.30(11)(c), Florida Statutes. Change of circumstance Party seeking modification of child support payments has burden of showing the change in circumstances. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA 1996). 98 C. Temporary modification due to military service. If a temporary order is issued, the court may address the issue of support by: o Entering an order of temporary support from the service member to the other parent; o Requiring the service member to enroll the child as a military dependent with DEERs, TriCare, or other similar benefits available to military dependents as provided by the service member‟s branch of service; or o Suspending, abating, or reducing the child support obligation of the nonservice member until the custody judgment or time-share order previously in effect is reinstated. §61.13002(6), Florida Statutes. Streamlined judicial modification upon Department of Revenue agency review. §409.2564(11), Florida Statutes. The Department of Revenue is mandated in §409.2564(11)(a), Florida Statutes, to review child support orders in IV-D cases at least once every 3 years when requested by either party, or when support rights are assigned to the state. The Department of Revenue may seek modification of the order if appropriate. If the Department of Revenue seeks to modify the order, the department shall file: o a petition o a child support guideline worksheet o any financial affidavits o a proposed modified order that includes findings as to the source and amount of income o a notice that informs the parties of the requirement to file an objection or a request for hearing with the court if the party wants a court hearing on the petition to modify. §409.2564(11)(b), Florida Statutes. If a party wishes to obtain a court hearing on a petition to modify a support order, a party who is served by regular mail must file an objection to the proposed order or a request for hearing with the court within 30 days after the date on which the petition, proposed order, and other documents were mailed. §409.2564(11)(c), Florida Statutes. If a party is served personally, to obtain a court hearing on a petition to modify the party must file an objection to the proposed order or a request 99 for hearing with the court within 30 days after the date of receipt of the petition, proposed order, and other documents. §409.2564(11)(c), Florida Statutes. If a timely objection or request for hearing is not filed with the court, the court may modify the support order without a hearing in accordance with the terms of the proposed order. §409.2564(11)(d), Florida Statutes. If a support order does not provide for payment of non-covered medical expenses or require health insurance for the minor child and health insurance is accessible and available at a reasonable cost, the Department of Revenue shall seek to have the order modified. Any modification shall be made without a requirement for proof or showing of a change in circumstances. §409.2564(11)(e), Florida Statutes. Appeals: Appellate courts use the abuse of discretion standard when reviewing a trial court‟s order in a child support modification proceeding. Martland v. Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008). 100 101 IX. A. CHILD SUPPORT IN TITLE IV-D CASES Generally Public assistance monies received by a custodian on behalf of a child is not free money, but money that has to be paid back to the state by the parents of the child, who bear the primary legal burden of supporting their children. Any payment of temporary cash or Title IV-E assistance made to, or for the benefit of, any dependent child creates an obligation in an amount determined pursuant to the child support guidelines. §409.2561(1), Florida Statutes. Once a custodian receives state public assistance benefits on behalf of the child(ren) because of a lack of direct viable financial support from the mother or father, the custodian subrogates their rights to collecting child support to the State of Florida through the Department of Revenue which establishes and enforces a child support obligation. The state shall retain amounts collected only to the extent necessary to reimburse amounts paid to the family as assistance by the state. §409.2561(1), Florida Statutes. If there has been a prior support order or final judgment of dissolution of marriage establishing an obligation of support, the obligation is limited to the amount provided by such support order or decree. §409.2561(1), Florida Statutes. Any payment of public assistance money made on behalf of any dependent child creates an obligation in an amount equal to the amount of public assistance paid. If there is no prior court order establishing an obligation of support, the court shall establish the liability of the obligor for payment of public assistance monies by applying the child support guidelines in §61.30 for the public assistance period. Dept. of Revenue v. Nelson, 717 So. 2d 201 (Fla. 5th DCA 1998). Arrearages/Reimbursement - As to the award of retroactive support/arrears, while the actual child support arrears can only relate back to the filing date of the support petition, any portion of the retroactive award which is reimbursement to the state for public assistance funds under §409.234 can embody expenditures for public assistance which pre-date the 102 filing of the petition. Gherardi v. Gherardi, 712 So. 2d 1236 (Fla. 4th DCA 1998). o The parent cannot waive all arrears when the Department of Revenue is a party and public assistance was paid to the parent. In this case, the Department of Revenue was also not noticed or made a party to the stipulation between the mother and the father. Dept. of Revenue v. Pericola, 662 So. 2d 386 (Fla. 5th DCA 1995). No retroactive reimbursement during parent‟s incarceration. The state‟s subrogation rights are no greater than the parent‟s. Since the father could not support the children during a period of incarceration, the state was not entitled to reimbursement of AFDC assistance funds paid to the mother during his period of incarceration. Under the facts of this case, the mother and children could not have obtained support from the father during imprisonment because he was unable to provide for them financially. H.R.S. v. Hatfield, 522 So. 2d 61 (Fla. 2d DCA 1988). However, recent case law holds that a parent facing incarceration can be ordered to pay support and the arrears will accumulate during the incarceration. See McCall v. Martin, 34 So. 3d 121 (Fla. 4th DCA 2010). Limitation on amount that can be reimbursed. The reimbursable obligation of the father is limited to the amount he could have paid. The reimbursement may be less than the actual public assistance paid if the father is indigent. D.H.S. v. Huffman, 332 S.E. 2d 866 (Va. SCT 1985). By accepting temporary cash assistance or Title IV-E assistance, the recipient assigns to the Department of Revenue any right, title, and interest to support the recipient may be owed. §409.2561(2)(a), Florida Statutes. Note: If the parents of the child were actually providing regular monthly financial support for their child to the actual custodian of the child, then the custodian would not have the need to secure public assistance from the state to help support the child. Likewise, the occasional situation will arise, after hearing evidence and testimony in the court proceeding, where the custodian of the child is committing public assistance “fraud” by not actually meeting the legal requirements for receipt of public assistance monies from the state (i.e. the 103 child is not actually in their physical custody, or, there is actually an “intact” family but the custodian is receiving public assistance by stating in the request paperwork for public assistance that there is no intact family). You will have to address these potential issues as they may come up on a case-by-case basis. B. C. Cases Involving the Parents The most typical action brought by the Department of Revenue related to public assistance issues involves an enforcement action, a Petition for Support, or a Paternity Complaint on behalf of the Parent/Custodian of the child who is receiving public assistance of some kind (food stamps/monthly cash assistance/Medicaid) from the state based upon their reporting that the non-custodial parent is not financially supporting the child and not living in the same household. On occasion, you will have a case where the mother and father are both present in court and the mother is stating to the court that she does not want to place the father on child support because he “helps” on a regular basis with the child(ren); the father is likewise stating that he pays the mother some monies from time to time, visits and exercises agreed-upon visitation, and that he always provides other support or necessities for the child(ren) when he can. The salient issue that can arise in this scenario is the mother is receiving public assistance on behalf of the child(ren) and that establishment of a child support obligation from the father must be pursued under applicable law unless the mother gives up certain public assistance entitlements. If the mother does decide to “opt” out of the public assistance system, the father would still be financially liable for any previous public assistance paid out to the mother on behalf of the child and a reasonable monthly payment plan would have to be agreed upon, or court ordered, between the father and the Department of Revenue. Cases Involving Third-Party Custodians and the Parents Another typical public assistance scenario arises when the department filed actions for child support against the mother or father, and the minor child is being raised/housed by a third-party custodian who is receiving public 104 assistance to help them financially support the child. The parent must reimburse the state for the public assistance expenditure. The three most typical scenarios are: o where there is a relative custody order in place for the child under a Chapter 751 proceeding awarding a third-party legal custody of the child to the third-party custodian. o where there is/has been a Department of Children and Families dependency case under Chapter 39 involving child abuse or neglect and there is a court order giving that third-party custodian legal custody of the child. Please note that the custody in these cases may be temporary while the parent completes a case plan for return of their children to their physical custody or may be permanent if the parent failed to complete a case plan and the dependency court “closed” the case with the child in the formal legal custody of the third-party custodian. Note that in many of these cases, the third-party custodian is often receiving monthly “Relative Caregiver Funds” which is a form of public assistance (a monthly cash subsidy) to help raise the child. In these cases, the parents of the child are financially responsible for reimbursing the state for the monies being paid to the third-party custodian. o where there is no formal legal custody order giving the third-party “custody” of the child but there is an informal agreement to have the third-party custodian raise the children because of incapacity or inability of the parent to raise and provide for the child financially themselves due to incarceration or substance abuse issues, for example. There are many times in court on these third-party custodian child support cases when the parties, who may not understand the legal requirements of PA cases, raise the following issues: o Legal custody. The court should explain to the parties that while the parent may be living in the home with the custodian or actively involved in the child‟s life, they may not have “legal” custody of the child. If the custodian is the party receiving public assistance on behalf of the child, the parent is still responsible for the payment of child support to the state. o Action against the other parent. The department may often file a separate action against each parent, but the court only has jurisdiction over the case at bar. 105 o IV-D lawyers represent the department and not either party to a case so they can appear to establish and enforce support against the obligor and then appear in the same case to argue for a downward modification which benefits the obligor. Dept. of Revenue v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010). o The department has to follow federal requirements in federal income tax intercept and passport cases, which are administrative, and the circuit court has no jurisdiction to order the department to lift the federal passport restrictions or limit the department's income tax intercepts. o A court cannot retrospectively modify an administrative support order. 106 107 X. CHILD SUPPORT IN DEPENDENCY CASES The Department of Children and Families (DCF) is the state agency responsible for litigation of child dependency cases. §39.01(21), Florida Statutes. The Department of Revenue is charged with enforcing support orders obtained in dependency proceedings for children adjudicated to be dependent. §39.521(1)(d)7, Florida Statutes. A. Dependency Child Support Checklist At the Initial Dependency Hearing: Determine whether or not paternity has been previously established. Methods for determining paternity include: o The parent has voluntarily signed a sworn paternity affidavit, o The father is named on the child‟s birth certificate, o The child was conceived and born while the mother was married, o The putative father is discovered through DNA testing, and/or o Paternity is established by a court or administrative proceeding. If paternity has not been established: o Have parent swear under oath that he/she is the parent and adjudicate him/her as the parent or, o Order a DNA test. Verify whether or not child support has already been established. If it has, transfer it to the dependency court for enforcement and compliance monitoring. If it has not, proceed with ordering child support in current case. Set the paternity/child support hearing in conjunction with the next dependency hearing. Confirm the order includes: o Notice that paternity and child support will be established at the next hearing, o A requirement that the parents provide the financial information needed to determine child support within 28 days to the court and to DCF, and o An order for a DNA test, if necessary. At the Subsequent Paternity/Child Support Hearing (ideally in conjunction with the subsequent dependency hearing): Establish paternity, if not already done, and adjudicate the mother/father as the parent of the child. 108 Determine and set child support. Include the following in the child support order: o Amount of child support to be paid and to whom, o A provision for health insurance and non-covered medical expenses, o Income deduction and State Disbursement Unit information, o The full name and date of birth of each minor child, and o When the first payment is due and where it should be sent. Follow-up and Compliance options. The obligee or their attorney may initiate contempt. The court can hold a compliance review hearing: o Review hearings can occur in conjunction with judicial review or other regularly scheduled dependency hearings, if properly noticed. The respondent must provide proof of payment or that he/she lacks the ability to pay. If the respondent fails to provide proof of payment the court can: o Order the parent to seek employment or job training; o Issue an order to show cause. Offending parent can be found in civil contempt and jailed up to 179 days; Contempt order must contain a purge amount. Contemnor must have the ability to pay the purge amount. o Issue a writ of attachment; o Garnish the salary of the parent; o Suspend the driver‟s license and motor vehicle registration; and/or o Allow the Department of Revenue to seek other enforcement options. Modification and Termination. Child support payments can be modified when: o The modification is found necessary by the court and is in the best interests of the child, o When the child reaches 18 years of age, or o When there is a substantial change in the circumstances of the parties. If modifications occur, the court should require the clerk‟s office to notify the State Disbursement Unit of the changes. If an Income Deduction Order is facilitating payment, the court should enter an Order to Vacate and require that a copy be sent by the clerk to the employer and the State Disbursement Unit. Upon closure of the dependency case, advise the parents that: 109 o If they need help with enforcement, the case can be transferred to family court and they or counsel can proceed with enforcement, but the case will receive a new case number, and o Filing fees may be assessed. B. Model for Child Support in Dependency Cases Introduction This model serves as suggested guidelines for how child support should be handled in dependency cases. Its purpose is to provide guidance on issues related to child support in dependency proceedings so that Florida‟s children receive the financial support they need. According to the principles of unified family court as described in In re Report of Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001), the best practice is to handle the child support matter before the same judge hearing the dependency case to avoid conflicting orders and multiple court appearances by the parties, as well as to increase efficiency and wisely utilize court resources. The Process Initial Hearing: At the shelter hearing (or the arraignment hearing if there is not a shelter hearing), the court should: Determine whether or not paternity has ever been established for the child. Methods for determining paternity: (Chapters 742, 382, Florida Statutes) o The parent has voluntarily signed a sworn paternity affidavit. §742.10(4), Florida Statutes. Other forms of voluntary acknowledgement are permitted under §742.10(1) Florida Statutes. Also, paternity may have been established judicially or voluntarily in another state. See §742.105, Florida Statutes. o The father is named on the child‟s birth certificate. The father must have signed a paternity affidavit before his name was put on the birth certificate. §382.013(2)(c), Florida Statutes. o If the mother was married when the child was conceived and born, the husband is considered the legal father of the child. §742.11, 382.013(2)(a), Florida Statutes. o The putative father is found to be the biological father through genetic testing. §742.12, Florida Statutes. 110 o Paternity is established by a court of competent jurisdiction under §382.015, Florida Statutes, or determined through administrative proceedings under §409.256, Florida Statutes. The judge may access the JIS system to verify previous court orders. o If paternity has not been established, have parent swear under oath that he/she is the parent of the child and adjudicate him/her as the parent, or order a DNA test for the father if he is contesting paternity. §§742.10(4), 742.12(1), Florida Statutes. Payment for the DNA testing is governed by §742.12(7), Florida Statutes. Verify whether or not child support has already been established in another court or under the Title IV-D process in which the Department of Revenue is a party. If it has, transfer it to the dependency court. Rule 8.205(a) allows child support cases to be transferred and handled in dependency court. If it has not, proceed with ordering child support in current case. §39.402(11)(a), Florida Statutes. o A support order or an income-withholding order issued by a tribunal of another state may be registered in this state for enforcement. §80.6011, Florida Statutes. Set the next child support hearing in conjunction with the next regularly scheduled dependency hearing. §39.402(16), Florida Statutes. The initial shelter order should: o Give the putative father and all other parties notice of the proceeding to establish paternity and child support at the next hearing. §§409.256(4), 742.021, Florida Statutes. o Require the parents to provide to DCF and the court the financial information necessary to accurately calculate child support within 28 days. §39.402(11)(a), Florida Statutes. The court should require that all parties fill out the financial affidavits and other forms before the next hearing to save time. (See “e” below.) o Order a DNA test to establish paternity, if needed. §742.12(1), Florida Statutes. Payment for the DNA testing is governed by §§742.12(7), 742.18(7)(c), Florida Statutes. 111 Forms parent must fill out to receive child support (Courts could request that the clerk have these forms and any Department of Revenue application forms available for the litigants.): o Family Law Financial Affidavit, Fla. Fam. L. R. P. Form 12.902(b) or (c). o Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d). o Child Support Guidelines Worksheet, Fla. Fam. L. R. P. Form 12.902(e). o Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j). o Notice of Related Case Form. Florida Rule of Judicial Administration 2.085(d). o In addition to the required forms, it will be helpful if the parent lists such information as the other parent‟s place of employment, pay stub information, a W-2 form, or a recent tax return. If the parent does not know this information but can obtain it and bring it to the hearing, advise him or her to do so. At the Paternity/Child Support Hearing: Establish paternity, if not already done, and adjudicate the father as the parent of the child. Once paternity is established, the birth record needs to be updated at the Office of Vital Statistics to appropriately record the establishment of paternity. The CLS attorney should complete the top portion of the Department of Health form DH673 using information from the birth record. Next, a certified copy of the paternity adjudication with the father's name should be provided to the Clerk of the Court who then submits the record to the Office of Vital Statistics. A separate paternity order should be used for this purpose to ensure dependency information is kept confidential. The birth record is then updated with the father's name and the official record shows that paternity is no longer an issue. Florida Supreme Court Approved Family Law Form 12.983(g) Final Judgment of Paternity can be used for this purpose. o If a party still disputes paternity, they may request a jury trial. B.J.Y. v. M.A., 617 So. 2d 1061 (Fla. 1993). 112 NOTE: The 3rd DCA recently held that the trial court has no jurisdiction to determine a disputed issue of paternity in a dependency proceeding under Chapter 39 in N.D. v DCFS, 32 Fla L. Weekly D1737b (Fla. 3rd DCA 2007); however, several other districts disagree. [See: T.J. v. Department of Children and Families, 860 So. 2d 517 (Fla. 4th DCA 2003) (Trial court erred in not applying clear and convincing standard to paternity evidence as required in §§ 742.031, 742.10(1), Florida Statutes); In Interest of J.M., 499 So. 2d 929 (Fla. 1st DCA 1986) (A circuit court has inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any order appropriate to a child's welfare.); Dept. of Revenue v. Yambert, 883 So. 2d 881(Fla. 5th DCA 2004) (Department of Revenue was forced to establish paternity and child support obligation when dependency court had ordered DNA testing but failed to issue an order adjudicating paternity.); In re S.M., 874 So. 2d 720 (Fla. 2nd DCA 2004) (Circuit court erred in ordering E.K., an out-of-state resident with absolutely no connections to Florida, to submit to paternity testing before moving forward with the dependency action. The paternity action must occur in the state having personal jurisdiction over the parent.)] Also, §39.521(1)(d)(7) states: “The court may exercise jurisdiction over all child support matters, shall adjudicate the financial obligation, including health insurance, of the child‟s parents or guardian, and shall enforce the financial obligation as provided in chapter 61.” Set child support Child support is based on the parent‟s net monthly income. The child support guideline amount chart is found in §61.30, Florida Statutes. The court can vary from the amount prescribed in this chart by 5% after considering all relevant factors including the needs of the child, age, station in life, standard of living, and financial status and ability of each parent. If they do vary by more than 5%, they must have a written finding justifying the variance in the order. §61.30(1)(a), Florida Statutes. If the child will spend a substantial amount of time with each parent, the amount of child support should be adjusted accordingly. See §61.30(1)(a) and §61.30(11)(b), Florida Statutes. If financial affidavits are filled out before court by both parties, it will save court time. Child support can be calculated by using FinPlan, Divorce Power Analyzer, or similar software. The amount can also be calculated manually by using the Child Support Guidelines Worksheet, Fla. Fam. L. R. P. 12.902(e). 113 The judge should explain the following to both parties when ordering child support: o This is permanent child support. The order for child support will only end when the child turns 18 or if it is modified by the court. §61.14, Florida Statutes. (Exception: §743.07(2), Florida Statutes, provides that dependent children can continue to receive support when the dependency is based upon mental or physical incapacity which began prior to the child reaching the age of majority, or if the person is between ages 18-19 and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.) o It is the parent‟s/guardian‟s responsibility to notify their attorney or case manager if payments are not made. The attorney or case manager must report this information to the court. o The court‟s options for enforcing the child support order (order to show cause, contempt. See generally §§ 61.16, 61.17, Florida Statutes; Rule 8.285; and section 2(c)below of this document.). o The responsibilities of the petitioner and respondent to notify the court if the award needs to be modified due to a change in circumstance. §61.14(1)(a), Florida Statutes. An order separate from the dependency hearing order should be written by the parent‟s attorney or the Children‟s Legal Services attorney, once paternity is established and should include: o The amount of child support to be paid and to whom. o A provision for health care insurance if it is reasonable in cost and accessible to the child. o The court may also order retroactive child support. See §61.30(17), Florida Statutes. o A provision for payment of non-covered medical expenses. o Income Deduction Orders are the preferred method for collecting child support payments and should be ordered whenever possible. §61.1301, Florida Statutes. The obligee or his/her agent should serve the Income Deduction Order on the obligor‟s employer within two business days by certified mail. §61.1301(2)(b)(2), Florida Statutes. The amount of time it takes for the obligee to receive payment varies greatly depending on the employer and payroll procedures, therefore, the judge should consider alternative payment methods for the initial payment or payments. o In cases in which support has already been established under Title IV-D where the Department of Revenue is a party, and in all other types of 114 family law cases utilizing an income deduction order, the judge shall order child support payments to be made through the State Disbursement Unit pursuant to §61.181, Florida Statutes. Income deduction orders should be used whenever possible; however, if payments are not being made by income deduction order, the judge shall order that child support be paid through the depository unless both parties request and the court finds that direct payments are in the best interest of the child pursuant to §61.13(1)(d), Florida Statutes. Direct payments to the parent or caretaker should be avoided as this may increase the likelihood of disputes as to what was or was not actually paid. o In non IV-E cases, the child support money should be sent to DCF at the following address: Department of Children and Families Cash Receipt Section 1317 Winewood Blvd. Building 1, Room 403 Tallahassee, Florida 32399 o The full name and date of birth of each minor child who is the subject of the child support order must be included in the order. The parent should be notified when his or her first payment is due and where the check should be sent. In addition, the court case number, the name of the person obligated to pay, and the name of the person to whom the payment is being made must be included with payments. It would be helpful if the following information was included as standard language on notices of hearings: “The first child support payment shall be due on (date) and is payable to the State of Florida Disbursement Unit, P.O. Box 8500, Tallahassee, Florida 32314-8500. Include the COUNTY, COURT CASE NUMBER, and NAME of the person to whom the payment is being made, and your NAME on each payment. No credit for payment will be given to you for any payment given directly to the custodial parent or caregiver.” o If the child is in licensed care, the parent can be ordered to pay child support to the Department of Children and Families to reimburse the department for costs associated with the child‟s care. §§39.0135, 984.22(3), Florida Statutes. 115 Before leaving court, both parents should receive documentation showing the judge‟s decision on child support, and the parent payor should receive information on how payments should be made. If income deduction is being used, both parents should receive information on when payment will begin and how payments will be made until the Income Deduction Order takes effect. If a change of placement is done during a dependency case, the order should contain specific language that states the date the payments should stop to the previous payee, the new payee‟s full name, the amount of the payment, and the date the payments should start to the new payee. A better practice would be to do an entirely separate order that redirects payment as of the date of the change of placement so that the clerk knows where to direct the money. If the clerk doesn‟t have an order specifying not only the change in placement but also the change in payee, it could significantly delay the money reaching the new caretaker of the child. In termination of parental rights cases where child support has been previously ordered, the court should address child support in the final order, notify the Department of Revenue, and specify: o The date the parent is to stop paying child support, and o Determine if the parent should continue to pay arrearages. Follow-Up and Compliance Follow-up and compliance with child support can be done in several different ways: DCF Case Managers could use a tickler system that initiates compliance checks at key points in time. The tickler system should be used in the following manner: o The system may be set up as either an automated electronic system or a manual case file system. o The tickler system should alert the case manager to the timeframe or deadline contained in the child support order. Many times, child support is an integral part of the case plan and the case manager must monitor compliance along with the other case plan tasks. o After the deadline passes, if the respondent has not produced documentation of payment, the case manager should alert the court and proceed according to circuit procedures. 116 The obligee or their attorney may initiate contempt proceedings if they are not receiving support pursuant to the court order. Compliance review hearings should be conducted in the following manner: o The court can review compliance with child support payments at the same time the court is conducting its judicial review, permanency review hearings, or other dependency hearings if the hearing is properly noticed. If compliance is not occurring, the court can set a separate compliance hearing with the respondent being the only person required to attend. o At the compliance hearing the respondent must provide proof and documentation that child support is being paid as ordered by the court and that he or she is complying with all the requirements of the child support order, or that he or she lacks the ability to pay. §61.14(5)(a), Florida Statutes. If the respondent fails to provide proof of child support payments or other requirements at or before the scheduled review hearings, the court can: o Order the parent to seek employment or job training. §61.14(5)(b), Florida Statutes. o Issue an Order to Show Cause; a hearing date should be set before the court for no later than two weeks. The offending parent can be found in civil contempt and jail time of up to 179 days may be ordered. Payor should be able to make full payment to purge the contempt. §61.14(5)(a), §38.22, Florida Statutes. [Note: The contemnor must have the present ability to pay a monetary purge under Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla. 1985), and Gregory v. Rice, 727 So. 2d 251 (Fla. 1999). See also Family Law Rule of Procedure 12.615.] o Issue a writ of attachment. §61.11, Florida Statutes. o Garnish the salary of the parent. §61.12, Florida Statutes. o The driver's license and motor vehicle registration of a support obligor may be suspended if the obligor is delinquent in payment or has failed to comply with subpoenas or a similar order to appear or show cause relating to paternity or support proceedings. §61.13016(1), Florida Statutes. o Allow the Department of Revenue, the state‟s child support enforcement agency, to enforce the child support order. §39.521(d)(7), Florida 117 Statutes. The parent may be directed to apply for help through the Department of Revenue and file the necessary petition. However, since it is often difficult for the Department of Revenue to get a copy of a dependency order, a promising practice would be for the court to enter a separate child support order and then transfer it to the family division for enforcement under a new case number. Although this is an option, ideally the court would handle enforcement during the dependency proceedings unless enforcement becomes extremely difficult. o The respondent should have the opportunity to provide proof of compliance to either the clerk or designee prior to the scheduled review hearing. If proof is provided early, the respondent should then be excused from attending the hearing and should be provided with a document indicating that he or she was excused. Modifications and Termination Child support payments can be re-examined when: o The modification is found necessary by the court and is in the best interests of the child. o When the child reaches 18 years of age and it may be best for the court to extend the child support order prior to the 18th birthday. o When there is a substantial change in the circumstances of the parties. §61.13(1)(a), Florida Statutes. When there is a modification or termination of child support payments made through the State Disbursement Unit, the clerk‟s office must notify the State Disbursement Unit of the changes. In addition, if an Income Deduction Order is facilitating payment, an Order to Vacate should be sent by the clerk to the employer and the State Disbursement Unit when a modification or termination is entered. Upon closure of the dependency case, the court should advise the parents that if they require help with enforcement or other issues, the case can be transferred to family court and will receive a new case number. Filing fees may be assessed. The court should collaborate with the clerk‟s office when establishing the transfer to determine the best transfer procedure. Once the procedure is determined, the court should provide a handout to the parents that outlines the process and directions the parents need to follow. 118 119 XI. CHILD SUPPORT IN DOMESTIC VIOLENCE CASES If the court determines that an injunction will be issued, the court shall also rule on such matters as contact between the parties, use of the residence, temporary custody and visitation, temporary child support, and temporary child support. Rule 12.610(c)(1)(C)(v), Fla. Fam. L. R. P. Temporary child support is to be awarded on the same basis as provided in chapter 61. §741.30(6)(a)(4), Florida Statutes. As petitioners seek safety for themselves and their children, financial needs are also a concern. At the same time, petitioners sometimes fear that seeking temporary child support will alert the respondent to their address, require physical contact during courtroom proceedings, revive efforts for visitation or child custody, or anger the respondent further. Therefore, while petitioners are aware that child support will help with the care of their children, they are also wary that it may compromise their safety. This promising practices model serves as suggested guidelines for how child support should be handled in domestic violence cases. Its purpose is to provide guidance on issues related to temporary child support in domestic violence injunction proceedings so petitioners may pursue child support safely and knowledgably. The Intake Process Make sure the petitioner understands all parts of the Petition for Injunction for Protection against Domestic Violence. In particular, make sure that the petitioner is aware that he or she may seek temporary child support from the respondent if the respondent is the legal parent or adoptive parent of a minor child or children. See §§741.30(6)(a)(4), 61.13(1)(a), 39.402(11)(a), Florida Statutes; Fla. Fam. L. R. P. Form 12.980(a), section VI(3). Find out whether paternity has ever been established and if the petitioner is already receiving child support in another case. Also ask whether the mother was legally married to a man who is not the other party in the current case when the child(ren) was conceived or born. If paternity has never been established, inform the petitioner that initiating a paternity case is one way to have child support established on a permanent basis. 120 If the petitioner fears disclosing his or her address in Section I of the Petition for Injunction for Protection against Domestic Violence, make sure that the petitioner is aware that he or she can keep this information confidential. If desired, have the petitioner write “confidential” in the spaces provided in Section I, number 1, and then have the petitioner complete and file the Florida Supreme Court Approved Form 12.980(h), Petitioner‟s Request for Confidential Filing of Address. If the petitioner wishes to seek child support, make sure that Section VI is filled out completely and accurately. In addition, make sure that the petitioner also completes: o Family Law Financial Affidavit, Fla. Fam. L. R. P. Form 12.902(b) or (c); o Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d); o Child Support Guidelines Worksheet, Fla. Fam. L. R. P. Form 12.902(e); o Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j); and o A Notice of Related Case Form if applicable. In addition to the required forms, it will be helpful for the establishment of temporary child support if the petitioner lists such information as the respondent‟s place of employment along with the address, phone number, fax number, rate of pay, pay stub information, a W-2 form, or a recent tax return. If the petitioner does not know this information but can obtain it and bring it to the hearing, advise him or her to do so. Prior to the return hearing, make sure to check for related cases to see if child support has already been established. In Court If the petitioner requests temporary child support in the petition, the judge must address it in the domestic violence hearing pursuant to §741.2902(2)(d), Florida Statutes, regardless of whether other paternity, divorce, or related cases are pending. It is the best practice for the presiding judge to consider and order temporary child support at the injunction hearing to alleviate the need for the petitioner to return to court, to prevent additional contacts between the petitioner and the respondent, and to ensure that temporary child support is ordered and 121 hopefully received by the petitioner as soon as possible. Victims of domestic violence are often in need of child support immediately as they may lose their regular means of support when they file a petition for an injunction. Other family court cases may take months to resolve and in the meantime the children of victims of domestic violence still need to be supported. Lastly, an order for temporary child support becomes ineffective upon the entry of an order pertaining to child support in a pending or subsequent civil case pursuant to §741.30(6)(a)(4), Florida Statutes, so no two orders will conflict. If the petitioner does not include a request for temporary child support in the Petition for Injunction for Protection against Domestic Violence the judge should not address child support unless the respondent is present and waives notice. While the judge can always calculate temporary child support during the hearing, the following two options can save court time and promote accuracy: o Financial affidavits are filled out in court or ahead of time by both parties, and child support is calculated on the spot by using FinPlan, Divorce Power Analyzer, or similar software. o Financial affidavits are filled out in court or ahead of time by both parties, and the domestic violence case manager calculates the guidelines amount of child support manually using Form 12.902(e), Child Support Guidelines Worksheet. In Title IV-D cases and in all cases utilizing an income deduction order, the judge shall order temporary child support payments to be made through the State Disbursement Unit pursuant to §61.181, Florida Statutes. Income deduction orders should be used whenever possible; however, if payments are not being made by an income deduction order, the judge shall order that temporary child support be paid through the depository unless both parties request and the court finds that direct payments are in the best interest of the child pursuant to §61.13(1)(d), Florida Statutes. Direct payments to the petitioner should be avoided as this may increase the likelihood of contact between the petitioner and the respondent or disputes as to what was or was not actually paid. 122 Each child support order shall provide the full name and date of birth of each minor child who is the subject of the child support order. The respondent should be notified when his or her first payment is due and where the check should be sent. In addition to the court case number, the name of the person obligated to pay and the name of the person to whom the payment is being made must be included with payments. It would be helpful after each hearing for the respondent to receive a paper reminding him or her of this information. An example of this is: The first payment shall be due on (date) and is payable to the State of Florida Disbursement Unit, PO Box 8500 Tallahassee, FL 32314-8500. Include the COUNTY, COURT CASE NUMBER, and NAME of the person to whom the payment is being made, and your NAME, on each payment. No credit for payment will be given to you for any payment given directly to the custodial parent. Income Deduction Orders are the preferred method for collecting child support payments and should be ordered whenever possible. The deputy clerk or other designee should mail or fax the Income Deduction Order to the obligor‟s employer within two business days. The amount of time it takes for the obligee to receive payment varies greatly depending on the employer and payroll procedures; therefore, the judge should consider alternative payment methods for the initial payment or payments. When ordering temporary child support the judge should explain the following to both parties: o That this is temporary child support. The order for temporary child support will end when the injunction expires, or when a child support order is entered in another case; o The options for securing long-term child support, such as a paternity hearing; o That it is the petitioner‟s responsibility to notify the court if payments are not made; o The court‟s options for enforcing the child support order; and o The responsibilities of the petitioner and respondent to notify the court if the award needs to be modified due to a change in circumstance. Before leaving court, both parties should receive documentation showing the judge‟s decision on temporary child support, and the respondent should receive information on how payments should be made. If income deduction is being used, both the respondent and petitioner should receive 123 information on when payment will begin and how payments will be made until the Income Deduction Order takes effect. Follow-Up and Compliance Follow-up and compliance with temporary child support can be done in several different ways: One such method is the use of a tickler system that initiates compliance checks at key points in time. The tickler system should be used in the following manner: o The system may be set up as either an automated electronic system or a manual case file system. o The tickler system should alert the case manager to the timeframe or deadline contained in the injunction order for temporary child support payments. o After the deadline passes, if the respondent has not produced documentation of payment, the case manager should alert the court and proceed according to circuit procedures. A second method is the use of compliance review hearings. These hearings should be conducted in the following manner: o An order setting review hearings for compliance with temporary child support and all other conditions of the injunction - such as batterers intervention participation - should be issued at the final hearing. Compliance hearings should be set for 30 days and 60 days after issuance of the final judgment with the respondent being the only person required to attend. o At the compliance hearing the respondent must provide proof and documentation that child support is being paid as ordered by the court and that he or she is complying with all the requirements of the final judgment. o If the respondent fails to provide proof of child support payments or other requirements at or before the scheduled review hearings, an Order to Show Cause should be issued and a hearing date should be set before the court for no later than two weeks. o The respondent should have the opportunity to provide proof of compliance to either the clerk or designee prior to the scheduled review hearing. If proof is provided early, the respondent should then be 124 excused from attending the hearing and should be provided with a document indicating that he or she was excused. o If there is nonpayment of child support after the completion of the compliance review hearings, the petitioner should file a Motion for Enforcement with the clerk or obtain the services of the Department of Revenue Child Support Enforcement Unit to enforce compliance. The petitioner should be made aware of this responsibility in writing by the court at the end of the final hearing. Modifications and Termination The petitioner or the respondent may request a modification of an injunction or a dismissal of an injunction using the appropriate Florida Supreme Court approved Family Law Form. If requested, domestic violence coordinators should provide information and referrals to both the petitioner and the respondent regarding changes to or termination of the injunction. Upon filing, the motion to modify or terminate the injunction will be sent to the signing judge for review and a hearing will be scheduled if necessary. When there is a modification or termination of an injunction requiring temporary child support payments made to the State Disbursement Unit, the clerk‟s office must notify the State Disbursement Unit of the changes. In addition, if an Income Deduction Order is facilitating payment, an Order to Vacate should be sent by the clerk to the employer and the State Disbursement Unit when a modification or termination is entered. 125 XII. CHILD SUPPORT IN DISSOLUTION CASES Commencement of a proceeding for dissolution of marriage or for alimony and child support; dissolution questionnaire. §§61.043, 409.2561, Florida Statutes. (1) A proceeding for dissolution of marriage or a proceeding under §61.09 shall be commenced by filing in the circuit court a petition entitled “In re the marriage of __________, husband, and __________, wife.” A copy of the petition together with a copy of a summons shall be served upon the other party to the marriage in the same manner as service of papers in civil actions generally. Recent years have seen a number of legislative changes within chapter 61, Florida Statutes. Subject to a few exceptions, the concepts of parenting plans and time-sharing have replaced time-honored terms of custody and visitation. Provisions governing child support in dissolution cases have been amended as well. While the underlying premise for distribution of marital assets is equitable division, the starting point for child support is the recognition in the statutes that “each parent has a fundamental obligation to support his or her minor child.” §61.29(1), Florida Statutes. How this obligation is allocated between the parents with the backdrop of dissolution of marriage proceedings is the focus of this outline; allocations specific to certain family situations may also be presented in marital settlement agreements. It should be noted that dissolution is not required for imposition of a child support obligation; see §61.09, Florida Statutes. Calculation of Support: (See Child Support Guidelines for more information) Section 61.30, Florida Statutes, is the starting point for determining the amount of child support owed; subsection (6) contains the schedule to be applied to the combined net income of the parents as if they and the children “were living in an intact household.” §61.29(2), Florida Statutes. The guidelines apply to both temporary and permanent orders for support. Gross and net income is discussed in §§61.30(2)-(5), Florida Statutes. Form reference: Fla. Fam. L. R. P. Form 12.902(e), Child Support Guidelines Worksheet. 126 Deviation or Variation from the Guidelines: A judge may order payment of child support, varying within 5% from the amount given in the guidelines, upon consideration of the factors set forth in §61.30(1)(a), Florida Statutes; a variance of more than 5% must be accompanied by written findings explaining why ordering support equal to the guidelines amount would be either unjust or inappropriate. Deviation factors are enumerated in §61.30(11), Florida Statutes. Form reference: Florida Supreme Court Approved Family Law Form 12.943, Motion to Deviate from Child Support Guidelines. Department of Revenue: Please refer to the section within this bench book on Department of Revenue Administrative Orders. Enforcement of Support: Pursuant to §61.1301(1)(a), Florida Statutes, any order establishing, enforcing, or modifying a child support obligation, other than an order for temporary support, must be accompanied by a separate order for an income deduction, if one has not already been entered. In accordance with §61.1301, Florida Statutes, income deduction orders may be issued in both Title IV-D and non-Title IV-D cases; however, immediate implementation of an income deduction order may be deferred in certain circumstances. Deferral generally requires: a showing that immediate implementation is not in the best interests of the minor child; proof of past timely support payments without an income deduction order; and either an agreement by the obligor to advise the Title IV-D agency of any change in payor and/or health insurance or an agreement signed by obligor and obligee providing an alternative arrangement. Payments are made to either the State Disbursement Unit or to a central depository within the office of the clerk of court (See Fla. Fam. L. R. P. 12.996(a), Income Deduction Order, for the order issued in non-Title IV-D cases.). An action for enforcement of child support may be brought in the county in which either the obligee or obligor resides. Depending on the circumstances, methods for enforcement may include garnishment; suspension of the obligor‟s driver‟s license or registration; or interception of unemployment compensation, federal tax refunds, and lottery winnings. Continued refusal to meet a court-ordered child support obligation may also subject an obligor to indirect civil contempt proceedings (See Writ of Bodily Attachment below). Direct criminal contempt proceedings may be used if the obligor has either continually and willfully neglected his or her support obligations or has affirmatively divested himself or herself of assets. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). 127 High School Students: Pursuant to §743.07(2), Florida Statutes, the court may require support for a dependent between the ages of 18 and 19, who is still attending high school, so long as the student is “performing in good faith with a reasonable expectation of graduation before the age of 19.” Disabled students: The court may require support for a dependent child beyond the age of 18 if the dependency is because of a metal or physical disability that began prior to the child reaching the age of majority. Income (Gross and Net): Gross income is defined in §61.30(2)(a), Florida Statutes. Subtracting allowable deductions from gross income yields net income; allowable deductions are found in §61.30(3). The child support guidelines rely on the combined net incomes of the parents to determine the minimum required for child support. Income (Imputed): Only legal income can be considered. Crossin v. Crossin, 979 So. 2d 298 (Fla. 4th DCA 2008). o Income is imputed to a voluntarily unemployed or underemployed parent and in absence of a factual finding of either physical or mental incapacity or circumstances beyond the parent‟s control; the imputation must be based on competent, substantial evidence. The mechanics of imputation of income are found in §61.30(2)(b); that section also authorizes the court to refuse to impute income to a parent when the court finds that it is necessary for that parent to stay home with a child. With the exception of a parent who has recently graduated or has recently become licensed or certified, income cannot be imputed at a higher level than the parent ever earned. Neither incarceration resulting from a crime tied to child support block nor a parent‟s financial reversal caused by the costs of defending against a crime related to the child support obligation necessarily bar imputation of income. Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999); Waskin v.Waskin, 484 So. 2d 1277 (Fla. 3d DCA 1986). Income Deduction Orders: Permissible with entry of temporary order establishing support or temporary order enforcing or modifying a temporary order of support; mandatory with other orders establishing, modifying, or enforcing obligations or alimony and/or child support. Payments may be made either through the depository within the clerk‟s office or to the State Disbursement Unit, depending on how payment is ordered. An income deduction order is effective immediately, unless the court defers it, “upon 128 good cause shown,” and with written findings satisfying §61.1301(b)8, Florida Statutes. Forms for income deduction orders were most recently revised in June, 2011. Form references: Fla. Fam. L. R. P. Forms 12.996(a), Income Deduction Order (Non-Title IV-D case) and 12.996(b), Notice to Payor. Information to be Submitted to the Court: Social security number and date of birth of each party; name, date of birth, and social security number of each minor child. §61.13(8), Florida Statutes. Insurance (Health and Life): Every order imposing a child support obligation must contain a provision for health insurance for the minor children “when health insurance is reasonable in cost and accessible to the child.” §61.13(1)(b), Florida Statutes. Reasonableness generally means that the cost does not exceed 5% of the gross income of the parent responsible for providing it; accessibility means that it may be used in the children‟s home county, “or in another county if the parent who has the most time under the time-sharing plan agrees.” In circumstances of equal time-sharing, accessible means either the child‟s home county or another if both parents agree. The details of health insurance for minor children are spelled out in §61.13(1)(b). Section 61.13(1)(c) authorizes a court having imposed a child support obligation to order the obligor to either purchase or maintain life insurance to secure the obligation. Although there is no “reasonableness” requirement for life insurance in the statute, there are cases on that point. Methods of Payment: Section 61.1301(1)(a), Florida Statutes, requires issuance of a separate income deduction order to accompany any non-temporary order establishing, enforcing, or modifying an order for child support, if one has not already been entered; however, depending on circumstances, immediate implementation of the income deduction order may be deferred. Generally, payments made in accordance with an income deduction order are made to either the State Disbursement Unit or the central depository within the clerk‟s office. (Please see Enforcement above). Military Parents: When a temporary order is entered under §61.13002, Florida Statutes, the court may address child support by: “entering an order of temporary support from the service member to the other parent under §61.30; requiring the service member to enroll the child as a military dependent with 129 DEERs, TriCare, or other similar benefits available to military dependents as provided by the service member‟s branch of service and federal regulations; or suspending, abating, or reducing the child support obligation of the non-service member until the custody judgment or time-share order previously in effect is reinstated.” Section 61.13002 applies only to temporary modifications due to military service; permanent change of station moves by military personnel are governed by the provisions regarding relocation, §61.13001, Florida Statutes. Form references: Florida Supreme Court Approved Family Law Forms 12.905(d), Supplemental Petition for Temporary Modification of Parenting Issues for Child(ren) of Parent Activated, Deployed, or Temporarily Assigned to Military Service; and 12.950(a), (c), (d), (e), (f), and (i), regarding relocation. Modification of Support: There are numerous justifications a parent may present when petitioning for modification of child support, but vital to a request for modification is either: (1) a substantial change in circumstances or in the financial ability of either party, which occurs subsequent to the imposition of the child support obligation, whether that obligation is agreed to or court-ordered; or (2) a child or children who benefit from the obligation are no longer entitled to support, leading to a reduction or termination of the obligation. §§61.13, 61.14, Florida Statutes. Obligation for Support: “Each parent has a fundamental obligation to support his or her minor or legally dependent child.” §61.29(1), Florida Statutes. Overnights: The number of overnights comes into play when deviation from the guidelines is being considered. “Substantial amount of time,” as defined in §61.30(11)(b)8, Florida Statutes, means that a parent exercises time-sharing of at least 20% of the overnights in a year. A parenting arrangement in which “the child spends a significant amount of time, but less than 20% of the overnights with one parent,” is a factor for deviation under §61.30(11)(a)10. The threshold percentage of overnights required to be considered “substantial” has been the subject of legislative action within the past few years; it was recently reduced from 40% to 20%. The number of overnights must be entered on the guidelines worksheet, form 12.902(e). §61.30(11), Florida Statutes. Reduction or Termination of Support: Unless §743.07(2), Florida Statutes, applies (see High School Students above) or the parties agree otherwise, a parent‟s obligation for child support terminates on a child‟s 18th birthday, at which time, the overall obligation for any remaining minor or dependent children is reduced in accordance with the schedule required by 130 §61.13(1)(a)(1)b, Florida Statutes. That schedule must specify the date of reduction or termination. §61.13(1)(a), Florida Statutes. Retroactive Support: In its initial determination of child support in a dissolution of marriage proceeding, the court has the discretion to “award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding filing of the petition, regardless of whether that date precedes the filing of the petition.” §61.30(17), Florida Statutes. Section 61.14(1)(a), Florida Statutes, allows the court to modify an order of support by increasing or decreasing the support retroactively to the date of filing of the initial or supplemental petition for modification, “as equity requires,” unless otherwise provided in §61.30(17). Retroactive child support may be awarded in temporary orders. Service: Service of process by publication (constructive service) is permitted for dissolution or annulment of marriage; cases involving either alimony or child support require personal service. §49.011(4), Florida Statutes. State Disbursement Unit: The State Disbursement Unit is the agency responsible for collection and disbursement of child support payments in all Title IV-D cases and in non-Title IV-D cases in which the initial support order was issued in Florida after January 1, 1994, and in which the obligor‟s child support obligation is paid through income deduction. Tax Issues: As these issues may be complicated, they are outside of the scope of this outline; however, the question of whether one parent receives the federal income tax dependency or whether the tax credit rotates between parents should be considered during the dissolution proceedings. Although a court is not authorized to allocate the dependency exemption, it can require a custodial parent to transfer it to the non-custodial parent so long as the noncustodial parent is current with support payments. (Geddies v. Geddies, 43 So. 3d 888 (Fla. 1st DCA 2010). By whom child support payments are deducted and to whom they are taxed should also be taken into consideration as unallocated support payments may be viewed as alimony by the IRS. It is important that the parties consult attorneys and/or accountants regarding taxation issues. Temporary Support: The child support guidelines (see above) apply to temporary support orders. A trial court may retroactively reduce a parent‟s obligation for temporary child support, but cannot retroactively increase temporary child support payments for the period prior to the date the motion 131 to increase the child support is filed, Flores v. Flores, 874 So. 2d 1211 (Fla. 4th DCA 2004). Termination of Support: (see Reduction or Termination of Support above) Title IV-D Payments: Title IV-D cases have some administrative remedies for non-payment of child support that non-Title IV-D do not, such as interception of unemployment compensation benefits, federal tax refunds, and lottery winnings. Writs of Bodily Attachment: (also see Enforcement) Issuance of this writ in connection with a court-ordered child support obligation must include a physical description, as required by §61.11(2)(a), Florida Statutes, and must advise the contemnor how he or she can purge the contempt. The writ must include the amount of the purge payment and how it is to be allocated between unpaid support, and other amounts owing such as the sheriff‟s fee or Department of Revenue costs. See also Florida Supreme Court Approved Family Law Form 12.962, Writ of Bodily Attachment. 132 133 XIII. DEPARTMENT OF REVENUE ADMINISTRATIVE SUPPORT ORDERS Child support orders in Title IV-D cases can now be established administratively by the Florida Department of Revenue in a quasi-judicial procedure. It does not supplant or replace the traditional judicial process, but provides an alternative procedure when there is not a judicial support order. §409.2563(2)(a), Florida Statutes. The Department of Revenue may modify or terminate its administrative order, unless the circuit court has taken jurisdiction by issuing a prospective superseding order. §409.2563(10)(d), Florida Statutes. Evidentiary hearings are conducted by the Division of Administrative Hearings. §409.2563(6), Florida Statutes. The administrative procedure only allows the establishment of child support obligations. The Division of Administrative Hearings does not have jurisdiction to hear or determine dissolution of marriage, separation, alimony or spousal support, termination of parental rights, dependency, disputed paternity (except as provided in §409.256, Florida Statutes) or award of or change to time sharing. §409.2563(2)(b), Florida Statutes. o The Department of Revenue was obligated to terminate an administrative proceeding to establish child support and continue in circuit court once the father requested paternity testing. Neither the Department of Revenue nor the Division of Administrative Hearings had jurisdiction to hear or determine issues of disputed paternity. Mendez v. Dept. of Revenue, 898 So. 2d 1060 (Fla. 2d DCA 2005). o When paternity has already been established by affidavit, a birth certificate, or a prior judicial proceeding, the father is not a “putative father” and the Department of Revenue, the mother, or the child do not bear the burden of proving paternity. Fernandez v. Dept. of Revenue, 971 So. 2d 875 (Fla. 3d DCA 2007). o A father who has acknowledged paternity will remain responsible for child support until he establishes good cause or prevails in his own action in circuit court to disestablish paternity and terminate the payment 134 obligations. The father‟s unverified request for DNA testing, without a separate circuit court action and affidavit conforming to the applicable paternity statutes, was insufficient to halt the administrative proceeding for the benefit of the child. Fernandez v. Dept. of Revenue, 971 So. 2d 875 (Fla. 3d DCA 2007). The department may proceed administratively to establish support on behalf of: o An applicant or recipient of public assistance, o A former recipient of public assistance, o An individual who has applied for services, o Itself or the child as provided by §409.2561, Florida Statutes, in public assistance cases, or o A state or local government of another state. §409.2563(2)(c), Florida Statutes. A support order issued by a circuit court prospectively supersedes an administrative support order rendered by the Department of Revenue. §409.2563(2)(d), Florida Statutes. However, to supersede an administrative order, the court must prospectively change the support obligations and determine the amount of any unpaid support owed under the administrative order, and shall include the amount as arrearage in its superseding order. The court may not retroactively modify any unpaid support owed under the administrative order, except as provided by §61.14(1)(a). §409.2563(10)(c), Florida Statutes. Dept. of Revenue ex rel. Chamberlain v. Manasala, 982 So. 2d 1257 (Fla. 1st DCA 2008) (holding that although a circuit court is authorized to supersede the entry of an administrative support order by entering a prospective order modifying the child support award, it is not authorized to enter an order vacating or retroactively affecting the administrative support order). The administrative order must provide and state findings, if applicable, concerning: o The full name and date of birth of the child or children; o The names of the parents and caregivers; o The parent's duty and ability to provide support; o The amount of the parent's monthly support obligation; o Any obligation to pay retroactive support; o The parent's obligation to provide for health care; o The beginning date of any required monthly payments and health insurance; 135 o That all support payments ordered must be paid to the Florida State Disbursement Unit; o That the parents or caregiver must file a financial affidavit, appropriate disclosures, and any change of address; o That if the parent ordered to pay support receives unemployment compensation benefits, the payor shall withhold, and transmit to the department, 40 percent of the benefits for payment of support, not to exceed the amount owed. §409.2563(7)(e), Florida Statutes. An income deduction order must be incorporated into the administrative support order or, if not, then rendered separately. §409.2563(7)(e), Florida Statutes. The Department of Revenue may utilize this procedure to establish a child support obligation against a nonresident over whom the state may assert personal jurisdiction. §409.2563(3), Florida Statutes. The parent from whom support is being sought may consent in writing to entry of an administrative support order without a hearing. §409.2563(5)(c)(4), Florida Statutes. Modification If it has not been superseded by a subsequent court order, the Department of Revenue may modify, suspend, or terminate an administrative support order in a Title IV-D case. §409.2563(12), Florida Statutes. A circuit court order may supersede a prior order by changing the support obligations prospectively. The circuit court does not have jurisdiction to vacate, amend, modify, or terminate an administrative order retroactively. State, Dept. of Revenue ex rel. Chamberlain v. Manasala, 982 So. 2d 1257 (Fla. 1st DCA 2008). A circuit court order which required the father to pay the exact amount he had been ordered to pay under final administrative support order, was an enforcement order rather than a superseding order. The Department of Revenue therefore, had jurisdiction to enter administrative modification order. The circuit court order did not prospectively change the father's support obligation. Dept. of Revenue ex rel. Gauthier v. Hoover, 40 So. 3d 99 (Fla. 5th DCA 2010). 136 Judicial Enforcement An administrative support order issued with or without a hearing may be enforced by any lawful means except contempt. §§409.2563(5)(c)(6), 409.2563(9)(d)(1), Florida Statutes. o If the circuit court issues its own order enforcing the administrative support order, the circuit court may enforce its own order by contempt. §409.2563(10)(b), Florida Statutes. The Department of Revenue may implement an income deduction notice immediately upon rendition of an income deduction order, whether it is incorporated in the administrative support order or rendered separately. §409.2563(9)(a), Florida Statutes. The Department of Revenue may initiate other collection action 15 days after the date an administrative support order is rendered. §409.2563(9)(b), Florida Statutes. 137 138 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). CHRISTIAN M. GIVENS*† 7 MODIFICATION OF CHILD SUPPORT I. [§7.1] INTRODUCTION II. PARTIES A. [§7.2] In General B. [§7.3] Child C. [§7.4] Adoptive Parents And Guardians D. [§7.5] Third-Party Custodians E. [§7.6] Department Of Revenue III. GROUNDS A. [§7.7] Statutory Basis B. [§7.8] Best Interest Of Child C. Change In Circumstances 1. [§7.9] In General 2. Payor a. Ability To Pay (1) [§7.10] In General (2) [§7.11] Application Of Child Support Guidelines (3) [§7.12] Good Fortune Child Support (4) [§7.13] Receipt Of Social Security Benefits b. [§7.14] Permanent Change 139 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). c. [§7.15] Voluntary Change d. [§7.16] Incarcerated Parent e. Challenge To Paternity (1) [§7.17] In General (2) [§7.18] Disestablishment Of Paternity *J.D., 2003, Florida State University. Mr. Givens is a member of The Florida Bar and the Hillsborough County Bar Association. He practices with Givens Law Group, LLC., in Tampa. †David M. Caveda, Tampa, was the co-author of this chapter in the ninth edition of this manual. 3. 4. 5. a. b. c. d. e. f. g. 6. 7. 8. D. [§7.31] E. [§7.32] IV. PROCEDURE A. [§7.33] B. [§7.34] C. [§7.35] D. [§7.36] E. [§7.37] F. [§7.38] G. Proof 1. 2. [§7.19] Payee [§7.20] Remarriage Child [§7.21] In General [§7.22] Needs [§7.23] Majority [§7.24] Behavior [§7.25] Change In Residence [§7.26] Emancipation [§7.27] Income Of Child [§7.28] Effect Of Inflation [§7.29] Support Of Subsequent Children [§7.30] Substantial Shared Parenting Time Support Set By Agreement Modification On Remand Commencement Of Proceedings Notice And Hearing Discovery And Mandatory Disclosure Child Support Guidelines Temporary Relief Referral To General Magistrate Or Hearing Officer [§7.39] Burden Of Proof Change In Circumstances a. [§7.40] Needs Of Child 140 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). b. [§7.41] c. [§7.42] d. [§7.43] H. Defenses 1. 2. 3. 4. 5. I. Order 1. 2. 3. J. [§7.52] Ability To Pay Inflation Voluntary Payments [§7.44] [§7.45] [§7.46] [§7.47] [§7.48] Arrearages Agreement Not To Modify Time-Sharing Insufficiency Of Proof Laches [§7.49] [§7.50] [§7.51] Appeal In General Method Of Payment Effective Date 141 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). I. [§7.1] INTRODUCTION This chapter discusses the modification of child support in postjudgment judicial proceedings. Modification and termination of support orders issued in Florida and by other courts are covered. The chapter examines who is eligible to modify support, the grounds and procedural steps involved in obtaining modification, defenses to a modification action, the effect of the child support guidelines, and appellate review. Other chapters of this manual also discuss child support orders. Jurisdiction and venue in postjudgment proceedings is covered in Chapter 2. For discussion of enforcement of child support orders, see Chapter 3. The Uniform Interstate Family Support Act (UIFSA) is analyzed in Chapter 8. Enforcement of foreign judgments in Florida is the subject of Chapter 9. The Child Support Enforcement Program operated by the Department of Revenue (“department”) is discussed in Chapter 10. The enactment of F.S. 61.30 and its subsequent amendments have significantly changed the practice, procedure, and grounds for modifying child support. Because decisions interpreting the statute are released regularly, practitioners are advised to stay current on emerging case law. See Chapter 12 of Florida Dissolution of Marriage (Fla. Bar CLE 10th ed. 2010) for further discussion of child support. II. A. PARTIES [§7.2] In General Any payor or payee under a current child support order may seek modification of that order. This includes any person presently receiving support for a child, whether a natural parent, adoptive parent, or guardian, and any person making payments for child support. F.S. 61.14(1)(a). But see D.F. v. Dept. of Revenue ex rel. L.F., 736 So.2d 782 (Fla. 2d DCA 1999), approved 823 So.2d 97, discussed in §7.5. B. [§7.3] Child It does not appear that a minor child who is the subject of a support order has standing to seek a modification of that order, because the child is not a “party.” F.S. 61.14(1)(a). A distinction must be made, however, between enforcement and modification. Under contract law, a child is an intended third-party beneficiary to a 142 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). marital settlement agreement providing for child support. Intended third-party beneficiaries to a contract may enforce the contract. Generally, courts may not modify a contract without specific authority in law to do so. However, “[c]ontracts between the parents regarding the support of their minor children are subject to the plenary power of the state to control, regulate and [exercise] discretion [over whether] to enforce.” Zolonz v. Zolonz, 659 So.2d 451, 452 (Fla. 4th DCA 1995). The court may not modify or change the agreement of the parties as it relates to the support of their adult children. Richter v. Richter, 666 So.2d 559 (Fla. 4th DCA 1996); Zolonz. However, an adult child, as a third-party beneficiary, may enforce a contractual obligation to pay support beyond age 18 or to pay college expenses. Farnsworth v. Farnsworth, 657 So.2d 1273 (Fla. 1st DCA 1995). An adult child may also enforce arrearages that accrued during his or her minority. Dept. of Health & Rehabilitative Services, Child Support Enforcement v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992). In Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998), the mother sought “modification” of a child support order on behalf of her 26-year-old mentally handicapped daughter. The parties‟ original agreement had provided support through the child‟s 21st birthday. The appellate court affirmed the trial court‟s ruling that it lacked jurisdiction to modify the order, but noted that the daughter could bring an independent action for support under F.S. 743.07(2). See also Taylor v. Bonsall, 875 So.2d 705 (Fla. 5th DCA 2004). C. [§7.4] Adoptive Parents And Guardians F.S. 63.172(1)(c) creates a relationship between adoptive parents and their adopted child equivalent to that of a “blood descendant . . . born within wedlock.” This relationship applies to all statutes, including those fixing support obligations. Under F.S. 744.361 et seq., a guardian has a duty to ensure that the ward receives medical, mental, and personal care and social and personal services for the ward‟s best welfare. F.S. 744.361(8) specifically requires the guardian, if authorized by the court, to take possession of all of the ward‟s assets and property and use them for the care, support, maintenance, and education of the ward/child. This duty confers on that guardian the right to seek modification of an existing child support obligation. The court in Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982), held that a child‟s right of support, during his or her minority, must be enforced by a legal representative, such as a guardian, fiduciary, guardian ad litem, or next friend. In Florida Dept. of Health & Rehabilitative Services ex rel. Powell v. Powell, 490 So.2d 143 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 1043 (Fla. 2d DCA 1986), the court held that a grandmother given custody of her three grandchildren could bring an action for their support. If a guardian or custodian must enforce the obligation, that same person should also be able to seek modification of it. D. [§7.5] Third-Party Custodians A person who is not a legal guardian may have physical or actual custody of a child. This third-party custodian, usually a relative or friend and often a grandparent, may be receiving support for the child. This arrangement is common in child support cases involving the Department of Revenue. In these cases, the third-party custodian is a subrogee, receiving public assistance on behalf of the child. In other cases, the arrangement exists with parental consent. In either case, a modification proceeding may be needed to redirect child support to the third-party custodian. The status of the third-party custodian as a party may be questionable. In D.F. v. Dept. of Revenue ex rel. L.F., 736 So.2d 782 (Fla. 2d DCA 1999), approved 823 So.2d 97, the parents‟ final judgment of dissolution of marriage incorporated a settlement agreement providing that the maternal grandparents would provide the child‟s primary physical residence. The father was ordered to pay child support directly to the grandparents. Three years later, following a contempt proceeding, an income deduction order was entered requiring payment through the court depository. In 1997, the department filed a petition to modify the father‟s child support obligation. The mother signed an affidavit stating that she was the child‟s custodian. An order increasing child support was appealed by the father on the ground that the grandparents should have been joined as indispensable parties to the action. The appellate court disagreed, stating: “Even if the child still resides with the maternal grandparents, the grandparents are not parties whose interest in the subject matter is such that a complete and efficient determination of the equities and rights of the other parties is not possible without their joinder.” Id. at 784. The indispensable parties are those persons who have a legal duty to support the children involved. Dept. of Revenue ex rel. Preston v. Cummings, 871 So.2d 1055 (Fla. 2d DCA 2004), approved 930 So.2d 604 (legal fathers are indispensable parties in actions to determine paternity of biological father and duty of support). E. [§7.6] Department Of Revenue The Department of Revenue, Child Support Enforcement Program, is authorized by F.S. 409.2551 et seq. to assist in the enforcement of child support obligations. See Taylor v. McGregor, 616 So.2d 159 (Fla. 3d DCA 1993). The department is also authorized by F.S. 409.2561(1) to “apply for modification of a support order on the 144 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). same grounds as either party to the cause.” Accordingly, the department may be a proper party to a modification action. See Thaysen v. Thaysen, 583 So.2d 663 (Fla. 1991). In Dept. of Health & Rehabilitative Services, Child Support Enforcement v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992), the court held that neither HRS (predecessor to the Department of Revenue as the state child support enforcement agency) nor the mother could enforce (or, presumably, modify) child support accruing after majority. See Chapter 10 of this manual for detailed discussion of the child support enforcement program. III. A. GROUNDS [§7.7] Statutory Basis The statutory grounds for modification of child support are found in F.S. 61.13(1)(a) and 61.14(1)(a). F.S. 61.13(1)(a)2 authorizes modification in accordance with the guidelines in F.S. 61.30 when • it is found necessary by the court in the best interest of the child; • the child reaches majority; • F.S. 742.07(2) (extension of support to allow high school graduation) applies; • a child is emancipated, marries, joins the armed forces, or dies; or • there is a substantial change in the circumstances of the parties. F.S. 61.14(1)(a) identifies the grounds for modification as a change in the circumstances or the financial ability of either party or the attainment of majority by the child who is a beneficiary of an agreement or court order awarding child support. Although the statutes must be read together, under F.S. 61.13(1)(a), “a court may enter an order modifying child support payments when the modification is found to be necessary in the best interests of the child or when there is a substantial change of circumstances.” Overbey v. Overbey, 698 So.2d 811, 814–815 (Fla. 1997). “To justify a modification of child support, the movant must establish a substantial change in circumstances that is material, involuntary, and permanent in nature.” Swanson v. Swanson, 888 So.2d 117, 119 (Fla. 4th DCA 2004). Future or anticipated events do not provide an appropriate evidentiary basis when originally determining support. Knapp v. Knapp, 778 So.2d 475 (Fla. 3d DCA 2001). 145 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Under F.S. 61.14(1)(a), a “finding that medical insurance is reasonably available or the child support guidelines schedule in s. 61.30 may constitute changed circumstances” to support modification of support. F.S. 61.30(1)(b) also provides that the child support guidelines may constitute a substantial change for modification when their application results in an adjustment of child support of at least 15% or $50, whichever is greater. But see Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997) (F.S. 61.30(1)(b) not applicable to downward modification of support set by agreement without showing of change of circumstances). See §§7.11 and 7.36 for discussion of the guidelines. B. [§7.8] Best Interest Of Child Historically, courts did not give much weight to the “best interests of the child” ground in F.S. 61.13(1)(a). Some courts have stated explicitly that the best interest ground is not sufficient alone to justify modification when the original support amount was fixed by agreement of the parties, and that the parties must also show a change in circumstances. See, e.g., Fritz v. Fritz, 485 So.2d 488 (Fla. 3d DCA 1986); Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982), disapproved in part 698 So.2d 811. In other cases, however, courts have held that modification may be permitted, if necessary for the best interest of the children, without regard to a substantial change in circumstances. See, e.g., Booth v. Booth, 625 So.2d 114 (Fla. 2d DCA 1993); Wood v. Wood, 272 So.2d 14 (Fla. 3d DCA 1973). In Overbey v. Overbey, 698 So.2d 811 (Fla. 1997), the court applied the best interest standard in reviewing a request by the payor/father for a downward modification in child support while the payor attended law school. The court rejected the voluntary/involuntary change standard applied in cases such as Milligan v. Addison, 582 So.2d 769 (Fla. 3d DCA 1991), and State, Dept. of Revenue ex rel. Johnson v. Thomas, 659 So.2d 1305 (Fla. 1st DCA 1995), and stated that “the focus should be on whether the temporary reduction will be in the best interests of the recipients.” Overbey, 698 So.2d at 814. Under Overbey, factors to be considered include the age of the child and the increased income that is expected after the parent completes the further training or education; i.e., will there be a significant increase in the payor‟s ability to pay, and for how many years can the child benefit from this increased support? Even if the payee parent wastes or dissipates assets, the payor must pay based on the best interest of the children. If the payee spouse mishandles funds, the court can issue practical implementing orders. See Pariser v. Pariser, 636 So.2d 741 (Fla. 4th DCA 1994) (Polen, J., concurring specially). 146 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Notwithstanding the language of the statute, the better practice is to allege and attempt to prove a substantial change in circumstances and that modification would be in the best interest of the child. C. Change In Circumstances 3. [§7.9] In General Both F.S. 61.13(1)(a) and 61.14(1)(a) cite a substantial change in the parties‟ circumstances as a ground for modification of child support. Under Allen v. Allen, 569 So.2d 875 (Fla. 2d DCA 1990), changed circumstances sufficient to justify a modification of child support must be unanticipated, significant, substantive, material, involuntary, and permanent in nature. See also Swanson v. Swanson, 888 So.2d 117 (Fla. 4th DCA 2004); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981) (change in circumstances must be significant, material, involuntary, and permanent in nature). In making a downward modification, the court must also consider the best interests of the children. Overbey v. Overbey, 698 So.2d 811 (Fla. 1997); Tietig v. Boggs, 602 So.2d 1250 (Fla. 1992). When the parties have agreed to a modification, however, the petitioner is not required to prove a substantial change in circumstances. Andrews v. Andrews, 712 So.2d 462 (Fla. 2d DCA 1998). The child support guidelines schedule may also justify a modification of support. F.S. 61.30(1)(b) provides that [t]he guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances. In Miller v. Schou, 616 So.2d 436 (Fla. 1993), the court held that an increase in the payor‟s ability to pay was sufficient by itself to justify a modification of child support. However, in Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999), a “good fortune” child support case, the appellate court approved the trial court‟s requirement that the mother show a change in the children‟s needs. See §7.12 for discussion of good fortune child support. 2. Payor a. Ability To Pay (1) [§7.10] In General 147 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). A substantial increase or decrease in the ability of the payor to make the child support payment is justification for modification. F.S. 61.13(1)(a)2, 61.14(1)(a); Garone v. Goller, 878 So.2d 430 (Fla. 3d DCA 2004). In fact, it is error to modify child support without considering the payor‟s ability to pay. Shellmyer v. Shellmyer, 418 So.2d 477 (Fla. 4th DCA 1982). The court must determine whether a specific change is of sufficient magnitude to be deemed “substantial.” In Thompson v. Thompson, 402 So.2d 1220 (Fla. 5th DCA 1981), the court suggested that a 10% change in the income of the payor constituted a substantial change in circumstances justifying modification. However, ability to pay may encompass more than just an increase or decrease in income. Kersh v. Kersh, 613 So.2d 585 (Fla. 4th DCA 1993) (father‟s income had increased but expenses had also increased on remarriage and birth of two subsequent children). There must be a change in the payor‟s ability to pay for a downward modification to be granted. In Conness v. Conness, 607 So.2d 493 (Fla. 4th DCA 1992), the court held that financial circumstances known to the payor at the time of the original agreement could not form the basis for modification. See also State, Dept. of Health & Rehabilitative Services ex rel. Movassaghi v. Mirarmandeh, 597 So.2d 421 (Fla. 2d DCA 1992). However, a substantial decrease in the parents‟ earnings does not in all circumstances require a reduction in support payments. Whitney v. Whitney, 624 So.2d 275 (Fla. 3d DCA 1993) (Baskin, J., dissenting); Cimitier v. Cimitier, 579 So.2d 142 (Fla. 3d DCA 1991). Imputation of income must be based on competent, substantial evidence and include a determination of whether a parent‟s underemployment is voluntary and a calculation of the imputed income. In calculating imputed income, the court must consider the parent‟s recent work history, occupational qualifications, and the prevailing wage in the community. Bator v. Osborne, 983 So.2d 1198 (Fla. 2d DCA 2008). Regardless of any change, it is error for the court to order a parent “to pay child support which that parent cannot afford to pay.” Alois v. Alois, 937 So.2d 171, 175 (Fla. 4th DCA 2006). (2) [§7.11] Application Of Child Support Guidelines The child support guidelines may be the basis for modification of child support when their application results in an adjustment of child support of at least 15% or $50, whichever is greater. F.S. 61.30(1)(b). However, in Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997), the court held that a downward modification of support set by agreement could not be based solely on the guidelines statute and required a showing 148 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). of changed circumstances. But see Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003). In Simmons v. Simmons, 922 So.2d 373 (Fla. 4th DCA 2006), the trial court granted a downward modification of child support because the father was paying more than required by the guidelines. The appellate court reversed, stating that the guidelines could not be used “„as the sole basis for relief from an agreed-to, judicially adopted child support order without a showing of independent changed circumstances.‟” Id. at 374, quoting Fleischmann v. Fleischmann, 868 So.2d 1, 2–3 (Fla. 4th DCA 2004). The change in ability to pay must be one recognized by the child support guidelines statute, F.S. 61.30. In Smoot v. Smoot, 685 So.2d 1337 (Fla. 2d DCA 1996), the court found that the former husband‟s payment of credit card debts that the former wife was ordered to pay did not constitute allowable deductions from gross income for the purpose of calculating child support. Therefore, the court found that the payments, in excess of $2,200, did not equate to a change in net income and reversed the temporary reduction of child support. In McGhee v. Childress, 724 So.2d 196, 197 (Fla. 1st DCA 1999), when an upward modification of child support had been requested, the trial court erred in deviating 20% from the guidelines amount “„based on the fact that the appellee‟s salary is currently at the minimum wage.‟” In Davis v. Spencer, 737 So.2d 1226 (Fla. 1st DCA 1999), the trial court ordered an upward modification but allowed the father to slowly increase his payments over four months. The appellate court reversed, rejecting the trial court‟s finding “that it was unfair to [the father] to increase his support payments immediately.” Id. at 1226. In Heard v Heard, 965 So.2d 173, (Fla. 5th DCA 2007), the court held that the former wife could not receive relief, pursuant to Fla.Fam.L.R.P. 12.540, from a marital settlement agreement, entered into four years earlier, that provided for child support that was approximately 37% less than what the guidelines would have required. In Heard, the court held that because the former wife had access to all material financial information she could not receive retroactive relief. The court did specify that its ruling was without prejudice to any future attempt to seek a modification of the previously agreed-upon child support. As in an initial determination of child support, the court should impute income to a party who is voluntarily unemployed or underemployed. F.S. 61.30(2)(b) provides a procedure for imputation of income. See, e.g., Bator v. Osborne, 987 So.2d 1198 (Fla. 2d DCA 2008). 149 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). (3) [§7.12] Good Fortune Child Support A substantial increase in the payor‟s income is itself sufficient to constitute a change in circumstances warranting an upward modification without any demonstration of increased need on behalf of the residential parent or the child. Miller v. Schou, 616 So.2d 436 (Fla. 1993). However, “[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle.” Id. at 439. The Supreme Court elaborated on Miller in Finley v. Scott, 707 So.2d 1112 (Fla. 1998). The trial court should begin with the statutorily mandated guidelines as the correct amount and then evaluate the statutory criteria and the needs of the child, including age, station in life, and standard of living. The trial court is also to consider the financial status and ability of each parent and any other relevant factors. See F.S. 61.30(1)(a). In Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999), the district court affirmed an order denying modification of child support based on the payor‟s income, finding that the needs of the children were being met by the current support. “A wish for a $300.00 baseball bat or a tuxedo for a fourteen year old as argued by Petitioner does not establish increased need on the part of the children.” Id. at 474. In Ferraro v. Ferraro, 971 So.2d 826 (Fla. 3d DCA 2008), the court held that the children‟s needs were met by the $28,770 per month that the father was paying, even though the guidelines reflected an obligation of $44,680 per month. In Allen v. Allen, 569 So.2d 875 (Fla. 2d DCA 1990), the court held that a father‟s receipt of a large bonus without evidence of increased needs of the child or decrease in the mother‟s ability to pay would not justify a modification. However, in Crowley v. Crowley, 672 So.2d 597 (Fla. 1st DCA 1996), the trial court erred by failing to include regular bonuses paid to the husband in determining his income. The difference appears to be whether the change is permanent in nature. In Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997), the court held that regular gifts from the husband‟s parents made throughout the marriage and expected to be continued could be included in determining income for child support. However, in Vorcheimer v. Vorcheimer, 780 So.2d 1018 (Fla. 4th DCA 2001), the same court held that payments from the husband‟s father that were not expected to continue could not be considered in calculating income. See also Elremmash v. Peterson, 676 So.2d 525 (Fla. 2d DCA 1996) (error to consider family gifts and loans in child support modification); Shively v. Shively, 635 So.2d 1021 (Fla. 1st DCA 1994). (4) [§7.13] Receipt Of Social Security Benefits 150 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Under F.S. 61.30(11)(a)2, the court may adjust the guidelines child support based on the child‟s independent income, not including supplemental security income (SSI). However, if the payor parent begins receiving social security benefits because of retirement or disability that also creates a dependent benefit for the child, modification is appropriate. Sealander v. Sealander, 789 So.2d 401 (Fla. 4th DCA 2001); Wallace v. Dept. of Revenue ex rel. Cutter, 774 So.2d 804 (Fla. 2d DCA 2000). In Sealander, the father voluntarily retired and began receiving social security benefits. His child also began receiving a dependent benefit of $500 per month. The court held that the father should “have received a credit against his $300 child support obligation for benefits paid as child support as a result of his retirement.” Id. at 403. In calculating child support under these circumstances, the social security benefits received by both the parent and children should be considered as income to the parent. After guidelines support is calculated, the payee parent receives a credit equal to the amount of the children‟s benefits. See Wallace; Williams v. Williams, 560 So.2d 308 (Fla. 1st DCA 1990). Social security disability insurance (SSDI) payments made directly to the child because of the child‟s disability are intended to provide additional income to a disabled child and do not reduce the parents‟ support obligation. Ford v. Ford, 816 So.2d 1193 (Fla. 4th DCA 2002); Sealander. However, if the child receives SSDI payments because of a parent‟s disability, these payments are credited to the parent‟s support obligation. Ford. b. [§7.14] Permanent Change If a payor seeks to decrease child support based on a decreased ability to pay, the decrease must be significant, material, involuntary, and permanent. Overbey v. Overbey, 698 So.2d 811 (Fla. 1997); Swanson v. Swanson, 888 So.2d 117 (Fla. 4th DCA 2004); Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA 1991); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981). Permanency was discussed in Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979), in which the payor was unable to meet his child support obligation because of a union strike. The court found that change to be temporary and refused to modify child support. In Ronan v. Ronan, 621 So.2d 518 (Fla. 1st DCA 1993), the husband‟s employment was terminated involuntarily and he had been unable to find new employment. The court held that it was an abuse of discretion for the trial court to refuse to temporarily suspend his support obligation. The issue of permanency was also dispositive in Manning v. Manning, 600 So.2d 1274 (Fla. 1st DCA 1992). The court held that the firing of the former husband and his subsequent acceptance of a lower-paying job did not demonstrate that the reduction 151 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). in his income was permanent. The court, however, ruled that the former husband was entitled to “emergency” or “temporary” relief until he could “reestablish himself.” Id. at 1276. A year later, the same court held, in Pitts v. Pitts, 626 So.2d 278, 283 (Fla. 1st DCA 1993), that a “healthy, able-bodied 32-year old heavy equipment operator, with a good work record and a history of steady employment as a supervisor in his field” had not suffered a “permanent” reduction in income. As such, he was entitled to only a temporary reduction in child support. On the other hand, in Freeman v. Freeman, 615 So.2d 225, 226 (Fla. 5th DCA 1993), another appellate court held that “permanent” does not mean “forever”; rather, it only means “not temporary or transient” but encompassing “an extended period of time.” By way of example, the court suggested that a change lasting one year or more would be a sufficient demonstration of permanency. See also Perez v. Perez, 973 So.2d 1227 (Fla. 4th DCA 2008). In cases such as those above, the court may order an unemployed parent to perform a documented work search to demonstrate willingness to work and the unavailability of suitable employment. If unemployment or underemployment is the result of a parent‟s lack of effort, the court may find that the original support amount should be continued. In Garcia v. Gonzalez, 654 So.2d 1064 (Fla. 3d DCA 1995), the court dealt with the ultimate issue of permanency. In a paternity case, the father died three years after executing an agreement to support the child until she reached majority. The mother claimed against the father‟s estate, and the court ordered the estate to continue the payments. In affirming, the District Court of Appeal, Third District, found that although the “obligation of a father to support a child normally terminates upon the death of the father,” an express agreement can abrogate the common-law rule. Id. at 1065. Under F.S. 61.13(1)(c), the court may also order the payor to purchase life insurance or a bond to secure payments of child support. c. [§7.15] Voluntary Change “The purpose of requiring that a change in circumstance be involuntary to modify support is to ensure that the duty to furnish adequate support is not deliberately avoided.” Vazquez v. Vazquez, 922 So.2d 368, 372 (Fla. 4th DCA 2006). See Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999) (retirement); Burdette v. Burdette, 681 So.2d 862 (Fla. 5th DCA 1996) (job change); Dean v. Dean, 503 So.2d 439 (Fla. 4th DCA 1987) (remarriage and birth of subsequent children); Vanden Bosch v. Elkins, 419 So.2d 1127 (Fla. 3d DCA 1982) (payee‟s remarriage, sale of marital home, and purchase of more expensive home); In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977) (remarriage and job change). Similarly, self-induced income tax problems 152 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). leading to a decreased ability to pay did not support a downward modification in Conness v. Conness, 607 So.2d 493 (Fla. 4th DCA 1992). In Overbey v. Overbey, 698 So.2d 811 (Fla. 1997), the court considered a father‟s request for a downward modification in child support while he attended law school. The court rejected the voluntary/involuntary analysis applied by the lower court and held that the best interests of the child should control. See discussion in §7.8. Involuntary changes will generally support a modification of child support. In Hackney v. Hackney, 560 So.2d 423 (Fla. 4th DCA 1990), the father quit his job when faced with the choice of quitting or being fired. Under the circumstances of that case, the court held that his resignation was not a voluntary change and his unemployment would constitute grounds for modification. In Levin v. Levin, 613 So.2d 556 (Fla. 4th DCA 1993), the trial court reduced the husband‟s support obligation after a drastic, involuntary decrease in his income. The appellate court reversed and remanded, however, because the reduced amount was still beyond the husband‟s ability to pay. Even if a payor is dismissed, he or she must still make efforts to find similarly paying employment. See Abdella v. Abdella, 693 So.2d 637 (Fla. 3d DCA 1997). A strong showing is required before a downward modification will be granted based on an alleged change in economic or market conditions, especially when the payor is operating in an entrepreneurial capacity. This is because one so engaged can easily record drastic fluctuations in income by the amount of initiative employed in securing and accepting work or business. See Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA 1991); O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981). “„[A]bsent physical or mental incapacity or other circumstances over which the parent has no control,‟” a parent is expected to be fully employed. Smith, 737 So.2d at 645, quoting F.S. 61.30(2)(b) (1997). Employment potential is generally measured by recent employment history, occupational qualifications, and prevailing earnings level in the community. “„A claim that a payor spouse has arranged his financial affairs or employment situation so as to short change the payee spouse is a valid matter to be explored in determining the payor‟s real ability to pay.‟” Saporta v. Saporta, 766 So.2d 379, 382 (Fla. 3d DCA 2000), quoting Smith, 737 So.2d at 644. The payor‟s living expenses and lifestyle are also factors for the court‟s consideration. Beniaminov v. Beniaminov, 789 So.2d 494 (Fla. 3d DCA 2001). In Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992), the court stated that “[v]oluntary retirement cannot be considered a change of circumstances which would warrant a modification of child support.” 153 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). d. [§7.16] Incarcerated Parent There previously was a conflict on whether an incarcerated parent should be obligated to pay child support. See, e.g., Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996); Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998), abrogated 846 So.2d 486. This conflict was resolved by the Florida Supreme Court in Dept. of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003), which set forth the following procedure to be followed when a payor is incarcerated. A parent seeking modification of child support payments because he or she is incarcerated may file a petition for modification. The trial court will hold the petition in abeyance and place the matter on its inactive calendar for the term of the payor‟s incarceration until a time when a thorough evaluation of the parent‟s ability to pay may be conducted. After the payor‟s release, the court is to conduct a hearing and, after considering the parties‟ current situations, is to develop a payment plan for both past and future support. Although the amount of unpaid support that accumulated while the payor was incarcerated should not be reduced, its payment may be restructured to enhance the likelihood that it will eventually be paid, even if payments continue beyond the child‟s majority. See McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010), for a case applying Jackson. e. Challenge To Paternity (1) [§7.17] In General The availability and accuracy of genetic testing to determine paternity has created new legal issues. If nonpaternity is successfully proved in a dissolution of marriage proceeding, case law has held that the marital father may be relieved of his duty to support a child born during the marriage. Daniel v. Daniel, 695 So.2d 1253 (Fla. 1997). But see Dept. of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla. 1993) (requirements for paternity testing when there is legal father). Previously, a final judgment of dissolution that established a child support obligation for the husband was a “final determination of paternity” and could only be challenged under Fla.R.Civ.P. 1.540. D.F. v. Dept. of Revenue ex rel. L.F., 823 So.2d 97 (Fla. 2002). However, F.S. 742.18, enacted in 2006, creates a procedure by which a man may disestablish paternity and terminate a child support obligation when he receives “newly discovered evidence” that he is not the biological father of the child. See Johnston v. Johnston, 979 So.2d 337 (Fla. 1st DCA 2008). In M.A.F. v. G.L.K., 573 So.2d 862 (Fla. 1st DCA 1990), the court held that the wife‟s concealment during their dissolution proceedings of the fact that the husband was not the father of the children born during the marriage constituted extrinsic fraud, was 154 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). collateral to the proceeding, and entitled the husband to challenge paternity and child support more than one year after the dissolution judgment because paternity was not at issue in the dissolution of marriage. However, in State, Dept. of Revenue v. Speights, 864 So.2d 73 (Fla. 1st DCA 2003), a paternity case, the court held that the mother‟s misrepresentation of the child‟s paternity was central rather than collateral to the case and constituted intrinsic fraud because paternity was the central issue. (2) [§7.18] Disestablishment Of Paternity Chapter 2006-265, Laws of Florida, created F.S. 742.18, allowing a man to disestablish paternity and terminate a previously established child support obligation if he is not the biological father of the child. This procedure requires the following: Filing of a petition in the circuit court and service on all interested parties, including the Department of Revenue, if applicable, and the mother or legal guardian or custodian of the child. F.S. 742.18(1). See Fla.Sup.Ct.App.Fam.L. Form 12.951(a). Filing of an affidavit by the petitioner that newly discovered evidence relating to paternity has come to the petitioner‟s attention since the establishment of paternity or support. F.S. 742.18(1)(a). Submission of the results of scientific tests conducted within 90 days of filing showing that the petitioner cannot be the biological father of the child or an affidavit stating that the petitioner did not have access to the child to have testing performed. F.S. 742.18(1)(b). Filing of an affidavit stating that the petitioner is current on all child support obligations and that any delinquency is due to inability to pay for just cause. F.S. 742.18(1)(c). To relieve an obligor of the duty to pay child support, the court must find all of the following: Newly discovered evidence has come to the petitioner‟s knowledge since entry of the previous order or judgment. Scientific tests were properly conducted. The payor is current in all child support obligations or has substantially complied and any arrearage is for just cause. 155 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The child has not been adopted by the payor. The child was not conceived by artificial insemination while the payor and mother were married. The payor has not prevented the biological father from asserting his parental rights. The child was under age 18 when the petition was filed. F.S. 742.18(2). See Form 12.951(b) for an order disestablishing paternity. Relief will be denied, even if the above conditions are met, if the payor engaged in any of the following after learning he was not the biological father of the child: The payor married the mother in accordance with F.S. 742.091 and voluntarily assumed parental responsibilities and a duty of support. The payor acknowledged paternity in a sworn statement. The payor agreed to be named as the father on the child‟s birth certificate. The payor voluntarily promised in writing to support the child and is required to do so on that basis. The payor received notice from a state agency or court to submit to paternity testing and ignored it. The payor signed a voluntary acknowledgment of paternity as provided by F.S. 742.10(4). F.S. 742.18(3). Any relief granted is limited to prospective child support payments and termination of parental rights, custody, and visitation. F.S. 742.18(5). Child support may not be suspended while the petition is pending except for “good cause shown.” F.S. 742.18(6). Entry of an order granting the petition does not affect the legitimacy of a child born during a lawful marriage. F.S. 742.18(9). In Johnston v. Johnston, 979 So.2d 337 (Fla. 1st DCA 2008), the trial court dismissed the father‟s petition to disestablish paternity under F.S. 742.18 under the authority of Parker v. Parker, 950 So.2d 388 (Fla. 2007). The appellate court reversed, finding that F.S. 742.18 does not require a petitioner to prove fraud or duress to disestablish paternity and that the statute “created a new cause of action in situations where a 156 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). father has „newly discovered evidence‟ rather than allegations of fraud, as previously required.” Johnston, 979 So.2d at 338. 3. [§7.19] Payee Increased or decreased ability of the primary residential parent to contribute to the needs of the child may also sustain a modification of child support. Arnold v. Miller, 404 So.2d 1166 (Fla. 1st DCA 1981). See Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004); Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973). Furthermore, F.S. 61.30(11)(b)7 provides: The court may deviate from the child support amount calculated pursuant to subparagraph 6. based upon the deviation factors in paragraph (a), as well as the obligee parent‟s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan granted by the court, and whether all of the children are exercising the same time-sharing schedule. Changes in financial circumstances must generally be involuntary if support is to be modified. A voluntary reduction of income by the obligee parent, however, may justify, under certain circumstances, a modification of support. A parent, for example, who voluntarily becomes unemployed would generally have income imputed and be unable to receive an upward modification. F.S. 61.30(2)(b). See Harbus v. Harbus, 874 So.2d 1230 (Fla. 4th DCA 2004); Caskey v. Pratt, 540 So.2d 253 (Fla. 4th DCA 1989). Likewise, voluntary underemployment may support imputation of income to a payee. Young v. Taubman, 855 So.2d 184 (Fla. 4th DCA 2003). Under F.S. 61.30(2)(b), however, the court may decline to impute income to a parent who stays home to care for a child. In such a case, the parent‟s ability to support the child would be reduced and an increase might be justified. See F.S. 61.30(2)(b)1–(2)(b)2 regarding requirements for imputation of income. The court could not simply deny a claim for upward modification because it found that the primary residential parent was “underemployed” in Garone v. Goller, 878 So.2d 430 (Fla. 3d DCA 2004). In State, Dept. of Revenue ex rel. Young v. Sumblin, 675 So.2d 691 (Fla. 1st DCA 1996), the court held that rather than simply denying modification, the trial court should have determined whether it was appropriate to impute income to the residential parent, taking into account whether it was necessary for her to be at home with the child. If it was deemed appropriate, a specific amount would need to be imputed and used to calculate child support under the guidelines. 157 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Imputation of income “must be supported by specific findings of fact indicating the amount and source of the imputed income.” Zubkin v. Zubkin, 823 So.2d 870, 871 (Fla. 5th DCA 2002). See F.S. 61.30(2)(b)1b. Other factors to be considered include hourly wage, number of hours worked, and availability of jobs in the community. See, e.g., Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999); Wollschlager v. Veal, 601 So.2d 274 (Fla. 1st DCA 1992), disapproved on other grounds 698 So.2d 811. If income is to be imputed, the court may not, without special circumstances, do so at a level greater than that which the party has previously earned. Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003); Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996); Stodtko v. Stodtko, 636 So.2d 814 (Fla. 3d DCA 1994). As described in §7.7, the child support guidelines may also serve as a basis for modification of child support. 4. [§7.20] Remarriage Remarriage generally is not relevant to a modification action and it is usually error for the court to consider the income of the new spouse in determining need and ability to pay. Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1999); Rosales v. Rosales, 599 So.2d 779 (Fla. 3d DCA 1992); Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988). The same is true of the income of a “roommate” or new companion. Sullivan v. Sullivan, 593 So.2d 1153 (Fla. 4th DCA 1992). However, the trial court may consider a roommate‟s contribution to living expenses as evidence of a former spouse‟s true living expenses. Singleton v. Singleton, 696 So.2d 1338 (Fla. 4th DCA 1997); McCall v. McCall, 616 So.2d 607 (Fla. 2d DCA 1993). It is also error for the court to increase one party‟s income based on “in-kind contributions” from a new spouse. Hinton. See F.S. 61.30(2)(a)13. This general rule has been abrogated in a few limited circumstances. When there is clear and convincing evidence that the remarried parent is unable to discharge the duty of support from his or her own funds, the court may permit discovery of the new spouse‟s finances. Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974). See also Hayden v. Hayden, 662 So.2d 713 (Fla. 4th DCA 1995); Young v. Young, 465 So.2d 652 (Fla. 1st DCA 1985). In addition, if a recipient can demonstrate that the payor has deliberately limited income or divested himself or herself of assets to avoid a support obligation and is living off the new spouse‟s income, discovery will be allowed. Hayden; Harman. See also Poquette v. Poquette, 425 So.2d 1203 (Fla. 2d DCA 1983). F.S. 61.30(12)(b) provides that if a payor/parent raises the existence of subsequent children as a basis for deviation from the guidelines support amount on an upward modification, the income of the other parent of the subsequent children will be 158 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). considered in determining whether there is a basis for deviation from the guidelines amount. See further discussion in §7.29. 5. Child a. [§7.21] In General There are innumerable changes that could occur with respect to a child that might justify modification of child support. Obviously, increased or decreased needs of the child are factors often cited to justify modification of support, but other factors may also support modification. The child reaching majority or being emancipated is often grounds for modification. F.S. 61.13(1)(a). Effective July 1, 2010, all child support and income deduction orders must state that child support terminates on the child‟s 18th birthday unless F.S. 743.07(2) applies or the parties‟ agreement provides otherwise. F.S. 61.13(1)(a)1a. The child‟s death terminates the obligation to pay support. Id. Modification is also permitted when F.S. 743.07(2) (continued support beyond age 18) applies, the child is emancipated or marries, or the child enters the military service. F.S. 61.13(1)(a)2. b. [§7.22] Needs The claimed change in the circumstances of the child is usually that of increased or decreased need. When the issue is increased need, most often it is related to the age of the child. See Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1988), receded from on other grounds 821 So.2d 1088, and the cases cited therein. It may be proper for the court to take judicial notice that a child‟s needs increase with age. This judicial notice, and the fact that the husband‟s income had increased, were held to be sufficient demonstration of an increased need to justify modification of child support in Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983). Three years later, however, that same court found that a modification based on inflation and the increased ages of the children was not justified in Boylan v. Cooper, 482 So.2d 584 (Fla. 5th DCA 1986). The better practice, therefore, is to document with specific evidence and testimony precisely how the needs of the child have increased with age. In Thyrre v. Thyrre, 963 So. 2d 859 (Fla. 2d DCA 2007), the court held that the obligor spouse was still required to pay child support according to the guidelines, even though the parties‟ autistic child had a trust fund to help with expenses. In Thyrre, the receiving spouse testified that child‟s expenses were not completely met by the trust fund. c. [§7.23] Majority 159 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The statutes providing for modification of child support identify the child‟s attainment of majority as a ground to modify child support. F.S. 61.13(1)(a)2. Effective July 1, 2010, all child support and income deduction orders must state that child support terminates on the child‟s 18th birthday unless F.S. 743.07(2) applies or the parties‟ agreement provides otherwise. Id. However, the payor cannot unilaterally reduce child support payments as each child reaches majority if support in the court‟s order is in a single amount. The payor must seek modification as each child reaches majority, because the court cannot terminate the support any earlier than the date of the petition. See Dept. of Revenue ex rel. Ortega v. Ortega, 948 So.2d 855 (Fla. 3d DCA 2007); Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001); Dept. of Revenue ex rel. Hall v. Hall, 699 So.2d 1036 (Fla. 5th DCA 1997). Effective July 1, 2010, all child support or income deduction orders must contain a schedule showing how child support will be reduced as each child is no longer eligible to receive support. F.S. 61.13(1)(a)1b. See Fla.Fam.L.R.P. Form 12.996(a), Income Deduction Order, for an example. F.S. 743.07(2) permits child support to be continued until age 19 if the child is dependent in fact, still in high school, and performing in good faith with a reasonable expectation of graduation before age 19. The requirement that the child “graduate” by age 19 has been construed liberally to “mitigate potential harm to children.” Boot v. Sapp, 714 So.2d 579, 580 (Fla. 4th DCA 1998). In Wattenbarger v. Wattenbarger, 767 So.2d 1172 (Fla. 2000), the Supreme Court approved Boot and reversed a district court order denying extension of child support to a child who turned 19 eleven days before graduation. In Ratcliff v. Ratcliff, 679 So.2d 1279 (Fla. 1st DCA 1996), the court reversed a final judgment provision continuing child support until the child reached age 19 or graduated from high school. The court held that child support should be terminated at age 18 or the child‟s emancipation. If F.S. 743.07(2) later became applicable, a petition for modification could be filed. See also Hunter v. Hunter, 626 So.2d 1069 (Fla. 1st DCA 1993). F.S. 743.07(2) also permits continuation of support beyond majority when the child‟s dependency is because of “a mental or physical incapacity which began prior to such person reaching majority.” See Perla v. Perla, 58 So.2d 689 (Fla. 1952). The right to support in this case belongs to the child and not to the parent. Hastings v. Hastings, 841 So.2d 484 (Fla. 3d DCA 2003). In Taylor v. Bonsall, 875 So.2d 705 (Fla. 5th DCA 2004), the disability of the parties‟ child was known at the time of the dissolution of marriage. The parties‟ agreement provided that child support terminated as each child reached age 18, unless an order extending support was issued before the child‟s 18th birthday. The mother petitioned to extend support for the disabled child before the child‟s 18th birthday, but the order was not entered until after the child turned 160 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 18. The father appealed and the court enforced the agreement and reversed the trial court, noting that the now-adult child could file a petition for support under the statute. F.S. 743.07(2) was last amended in 1991. The court in Walworth v. Klauder, 615 So.2d 219 (Fla. 5th DCA 1993), explains the relative history of this subsection. Cases prior to Klauder may provide a misleading view of the present state of the law, but do contain policy considerations. Family law practitioners seeking to modify child support should look closely at how the child support provision in the original settlement agreement or final judgment are worded. In Karten v. Karten, 983 So.2d 17 (Fla. 3d DCA 2008), the court held that when the child support order provided that the child support obligation would terminate as “each child” attained the age of 18, a portion of the father‟s child support obligation should automatically terminate as each child reached age 18. The “each child” language was held to mean that this was an allocated award and the reduction was retroactive to the date each child became 18. Effective July 1, 2010, F.S. 61.13(1)(a)1b requires that the child support or income deduction order provide for reduction of child support as each child is no longer eligible to receive support. See Form 12.996(a). The court in Karnbach v. Karnbach, 971 So.2d 1031 (Fla. 4th DCA 2008), held that when the parties‟ agreement did not specify how much support would be reduced when one child reached the age of majority, the child support should be recalculated, rather than automatically proportionally reduced. The court reached this conclusion even though the language of the parties‟ agreement implied an allocated child support award. In Ortega, the court described the difference between unallocated and allocated child support as follows: “[A]n unallocated child support award, unlike an allocated award, does not terminate by operation of law when a child attains majority but terminates at a later (or other) date either agreed upon or ordered.” Id. at 858. The court further held that the parent who is making a lump sum payment for more than one child must continue to make the full support payment until he or she successfully obtains modification after a child reaches majority and that the payments vest when they are due. The District Court of Appeal, Fourth District, has taken two slightly different positions regarding child support after a child turns 18, but before the child graduates from high school. In Rose v. Rose, 8 So.3d 1251 (Fla. 4th DCA 2009), the court enforced a marital settlement agreement that required the father to pay child support for each 161 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). minor child until they “reach the age of majority, marry, die, graduate from high school or becomes self supporting, whichever occurs first” (emphasis in original). Id. at 1252. One of the children reached the age of majority while in her senior year of high school. The court held that the parties were bound by the language in their agreement, and that the father‟s child support obligation ended when the child turned 18. In Moniz v. Moniz, 979 So.2d 1140 (Fla. 4th DCA 2008), the court held that the trial court should either award child support until the date a child graduates or set forth findings of fact explaining why such relief is denied, even though the parties‟ child turned 18 before graduating from high school. d. [§7.24] Behavior It has been held that a child who has reached the age of discretion may be so “disrespectful and contumacious” of the payor as to justify suspension of the support obligation during the period of the child‟s willful misconduct. Riley v. Connor, 509 So.2d 1177, 1178 (Fla. 5th DCA 1987). The District Court of Appeal, Second District, held to the contrary in Carroll v. Carroll, 593 So.2d 1131, 1133 (Fla. 2d DCA 1992): “Unlike the Fifth District court, we are unwilling to say that conduct by a child, not shown to be orchestrated by one of the parents, should relieve a parent of his or her duty to support the child.” See also Spalding v. Spalding, 907 So.2d 1270 (Fla. 5th DCA 2005) (trial court erred in suspending support until child developed meaningful relationship with father when parties‟ agreement specified there would be no visitation). The practitioner should not rely on using the child‟s behavior to support a modification of support. This would appear to go against the public policy of Florida. e. [§7.25] Change In Residence When a child has moved out of the home of the payee parent, that fact may constitute a change in circumstances justifying reduction of the child support paid to that parent. See Phillips v. Phillips, 449 So.2d 1310 (Fla. 5th DCA 1984); Broudy v. Broudy, 423 So.2d 504 (Fla. 3d DCA 1982). A child returning to the home of a parent so that the parent now had two minor children in her home instead of one constituted “prima facie evidence of a substantial change of circumstances” in Hillman v. Hillman, 567 So.2d 1066, 1067 (Fla. 2d DCA 1990). See also Dept. of Revenue ex rel. Baculik v. Baculik, 719 So.2d 1008 (Fla. 5th DCA 1998). f. [§7.26] Emancipation The child‟s emancipation supports termination of support. F.S. 61.13(1)(a)2. A payor‟s belief that the child has become “emancipated,” however, does not justify termination of the support obligation without a petition and order of modification. 162 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Alpert v. Alpert, 479 So.2d 875 (Fla. 3d DCA 1985). Like majority, emancipation does not automatically modify a child support obligation. State, Dept. of Revenue ex rel. Orr v. Orr, 737 So.2d 652 (Fla. 1st DCA 1999); Doerrfeld v. Konz, 524 So.2d 1115 (Fla. 2d DCA 1988). In Karnbach v. Karnbach, 971 So.2d 1031 (Fla. 4th DCA 2008), the court held that courts should look for specific and unambiguous language in the parties‟ agreement regarding whether child support should be proportionally reduced or recalculated when one child becomes emancipated. g. [§7.27] Income Of Child Under F.S. 61.30(11)(a)2, the court may consider the child‟s independent income as a factor to support deviation from the child support guidelines. Case law has held that income earned through a child‟s employment does not decrease the child‟s needs nor justify a reduction in child support. Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA 1982). However, income earned by the child from sources other than employment may be taken into account when determining the needs of the child. Bordman v. Bordman, 231 So.2d 543 (Fla. 3d DCA 1970) (trust payments to child). Moore v. Moore, 542 So.2d 1026 (Fla. 3d DCA 1989), also appears to suggest that an award to the child in a negligence action, received after the child support obligation has been fixed, may constitute a change in circumstances sufficient to support modification. But see Jobe v. Jobe, 934 So.2d 576 (Fla. 1st DCA 2006) (error to modify support based on child‟s receipt of lawsuit settlement). See §7.13 regarding social security benefits received by the child. 6. [§7.28] Effect Of Inflation Inflation is a factor that must be taken into account when determining whether there has been a change in financial circumstances. Brooks v. Brooks, 423 So.2d 995 (Fla. 3d DCA 1982); Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977). This factor affects both parties, and the court must measure the impact that inflation has had on both the payor and the recipient. Petersen v. Petersen, 392 So.2d 298 (Fla. 4th DCA 1981). As inflation erodes the buying power of the original child support, it also erodes the buying power of the payor‟s income, unless the payor has had income increases that keep pace with or exceed inflation. In Boylan v. Cooper, 482 So.2d 584 (Fla. 5th DCA 1986), the court held that the existence of inflation alone was not enough to justify an increase in support. The impact of inflation on the petitioner must be shown to be unique. See Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1988), receded from on other grounds 821 So.2d 163 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 1088. The court may take judicial notice of the effect of inflation. See F.S. 90.202(12). If the case justifies the expenses, it may be useful to have an accountant or other expert witness testify to establish the specific impact that inflation has had on the buying power of the recipient. This ground is likely to be less persuasive now that the guidelines schedule in F.S. 61.30 governs child support in all cases. Arguably, inflation is one of the factors to be considered by the legislature in its regular review of the guidelines. See F.S. 61.30(16). 7. [§7.29] Support Of Subsequent Children A payor‟s obligation to support children from a subsequent marriage or relationship may not be the basis for decreasing support to the children of a prior marriage or relationship. F.S. 61.30(12)(c); Mena v. Mena, 967 So.2d 360 (Fla. 4th DCA 2007); Pohlmann v. Pohlmann, 703 So.2d 1121 (Fla. 5th DCA 1998); Reed v. Reed, 597 So.2d 936 (Fla. 1st DCA 1992). F.S. 61.30(12)(c) specifically provides that the issue of subsequent children may be raised only in a proceeding for an upward modification and may not be applied to justify a decrease in an existing award. F.S. 61.30(12)(b) also establishes a general rule that the existence of subsequent children generally should not be considered by the court as a basis for disregarding the amount provided in the guidelines schedule. The court interpreted that provision in Robinson v. Robinson, 657 So.2d 958, 960 (Fla. 1st DCA 1995), and found it to be “a legislative recognition that parties should be aware of their support obligation to existing children, and should take that into account prior to assuming further obligation.” The statute was found constitutional in Pohlmann. The courts have responded differently to the issue of support of children born before either the child in question was born, or the proceeding to establish support for that child began. In Speed v. Florida, Dept. of Revenue ex rel. Nelson, 749 So.2d 510 (Fla. 2d DCA 1999), the father had married and fathered two children before a paternity proceeding to establish his obligation to support his child by Ms. Nelson began. The appellate court remanded the case to the trial court with instructions to consider the father‟s obligation to support his two afterborn children in calculating child support. The court may also use other statutory grounds to include support of other children in its child support calculations. In State, Dept. of Revenue ex rel. Marshall v. Smith, 716 So.2d 333 (Fla. 2d DCA 1998), the trial court, in calculating child support for an out-of-wedlock child, deducted from the father‟s income the amount of child support he would be required to pay under the guidelines for the two children previously born of his intact marriage. The trial court noted that under F.S. 61.30(3)(f), the father 164 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). would be entitled to a deduction from gross income for “[c]ourt-ordered support for other children which is actually paid,” Smith, 716 So.2d at 334, and concluded that the children of his intact marriage were not less deserving of his support. If a payor parent raises the existence of subsequent children in a request for a deviation from the guidelines, the income of the subsequent children‟s other parent must be considered. F.S. 61.30(12)(b). See Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996). In State, Dept. of Revenue ex rel. Cornejo v. Martinez, 744 So.2d 580 (Fla. 2d DCA 1999), however, the father raised the existence of three prior-born children in a child support modification proceeding. The trial court imputed income to the children‟s mother under F.S. 61.30(12). The appellate court reversed because Martinez raised only the existence of his children born before the birth of the child who was the subject of the proceedings. The court also noted that the wife had never worked regularly and was at home caring for six children. In exceptional circumstances, the court may consider a subsequent child‟s needs in setting child support. In Gebauer v. State, Dept. of Revenue ex rel. Hurlburt, 706 So.2d 407 (Fla. 4th DCA 1998), the severe illness of the mother‟s subsequent child, which forced the mother to quit work and stay home to care for the child, was found to justify a downward modification of her child support obligation. If a parent has a second job primarily to allow him or her to support subsequent children, F.S. 61.30(12)(a) allows the court to disregard that income in setting support. 8. [§7.30] Substantial Shared Parenting Time Under F.S. 61.30(11)(b), the court must adjust the child support guidelines amount when the parenting plan provides for the child to spend “a substantial amount of time with each parent.” See Hecht v. Hecht, 908 So.2d 547 (Fla. 1st DCA 2005); Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003) (court required to apply statute even when father had not exercised amount of visitation allotted to him); Rainsberger v. Rainsberger, 819 So.2d 275 (Fla. 2d DCA 2002). Even if a parent does not request an adjustment for substantial parenting time, the court must apply the statute in calculating the child support guidelines amount. Santiago v. Santiago, 830 So.2d 922 (Fla. 4th DCA 2002). Effective January 1, 2010, the statutory definition of “substantial amount of time” was changed from 40% to 20% of the overnights in a year. F.S. 61.30(11)(b)8. A formula for calculating the adjustment in support is found in F.S. 61.30(11)(b)1–(11)(b)7. See also Fla.Fam.L.R.P. Form 12.902(e), the child support guidelines worksheet. 165 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The statutory amendment defining “substantial amount of time” was enacted in 2001 and has been held to be remedial in nature and applicable retroactively. Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002); Arze v. Sadough-Arze, 789 So.2d 1141 (Fla. 4th DCA 2001). The court must apply the child support guidelines as amended, if the amendment becomes effective while the case is pending. Rainsberger. In modifying support to comply with the statute, the court should make the adjustment retroactive to the date the time-sharing schedule was effective. Sichewski v. Sichewski, 862 So.2d 850 (Fla. 4th DCA 2003). But see Keeley v. Keeley, 899 So.2d 387 (Fla. 2d DCA 2005) (father not entitled to retroactive reduction when he did not actually exercise visitation allotted to him). Enactment of the statute has produced requests for modification by payors. In Rubman v. Honig, 817 So.2d 1001 (Fla. 4th DCA 2002), the father initially sought a modification of the parties‟ final judgment of dissolution of marriage following the mother‟s remarriage. An order based on a mediated agreement was entered granting him increased visitation, but not modifying child support. Ten days later, the father petitioned to lower his child support obligation based on the increased visitation. The trial court denied the motion and the appellate court affirmed, because the change in circumstances relied on to support the modification was contemplated at the time the order altering the visitation schedule was entered. The appellate court noted that it was “unseemly, to say the least, for the father to have talked the mother into increased visitation without a change in child support, and then to have sought decreased child support based on the increased visitation.” Id. at 1001. See also Catalano v. Catalano, 787 So.2d 243 (Fla. 2d DCA 2001). A parent‟s failure to actually exercise at least 40% of overnights supported a modification of child support, retroactive to the date the parent first failed to regularly exercise time-sharing of at least 40% in Buhler v. Buhler, 913 So.2d 767 (Fla. 5th DCA 2005). In Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003), the father petitioned for a modification of child support, alleging a reduction in his income, and requested that F.S. 61.30(11)(b) be followed. The court distinguished this case from cases such as Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997), which hold that modification of support is precluded when the only ground is that application of the guidelines would result in decreased payments. Because the court “found an independent basis for its determination that the circumstances had changed,” it was required to consider all statutory criteria, including parenting time. Seiberlich, 859 So.2d at 571. Even if the time-sharing schedule does not meet the 20% requirement, the court may deviate from the guidelines based on the extent of time-sharing under F.S. 166 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 61.30(11)(a)10, when it makes specific written findings of fact regarding the reasons for the deviation. See, e.g., Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003). D. [§7.31] Support Set By Agreement Under F.S. 61.14(7), the proof required to modify an existing order of support based on an agreement of the parties is the same as the proof required to modify an order determined by the court. However, in Overbey v. Overbey, 698 So.2d 811, 814 (Fla. 1997), the court stated that when “child support was based on an agreement by the parties that was subsequently incorporated into an order, a heavier burden rests on the party seeking a reduction than would otherwise be required” (emphasis added). See also Knight v. Knight, 702 So.2d 242, 243 (Fla. 4th DCA 1997) (“appears that the supreme court has decided that section 61.14(7) does not apply to a petition to reduce child support”). Although an agreement not to seek modification is generally unenforceable, a provision in an agreement allowing modification under the guidelines without a showing of changed circumstances was approved in Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996). In Lester v. Lester, 736 So.2d 1257 (Fla. 4th DCA 1999), the parties‟ child support obligations and provisions for further modifications were set by agreement. Several years later, the parties orally agreed that the husband would assume responsibility for paying the children‟s private school tuition instead of the agreed-on modification. The appellate court approved this arrangement. “The fact that parents may not waive or otherwise „contract away‟ their child‟s right to support . . . does not preclude them from making contracts or agreements concerning their child‟s support so long as the best interests of the child are served.” Id. at 1259. But see Budnick v. Silverman, 805 So.2d 1112 (Fla. 4th DCA 2002) (distinguishing agreement that relieved parent of support obligation). Parties should be careful what they include in initial settlement agreements. In Myer v. Kaye, 990 So.2d 1253 (Fla. 4th DCA 2008), the court held that when parties agreed to a nonmodifiable amount of child support, the payor was not entitled to a reduction in child support when the first of the parties‟ children reached the age of majority. Perhaps importantly, the child support amount that was required in this case was greater than the amount provided for by child support guidelines. E. [§7.32] Modification On Remand In Stephens v. Stephens, 959 So.2d 388 (Fla. 1st DCA 2007), the appellate court held that the trial court, on remand, had the discretion to modify the amount of child 167 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). support ordered in the final judgment should it determine that the prior award was erroneous or no longer appropriate. IV. A. [§7.33] PROCEDURE Commencement Of Proceedings Modification proceedings are commenced by the filing of a petition (not a motion) and payment of a filing fee. Fla.Fam.L.R.P. 12.110; Fla.R.Civ.P. 1.110(h). Service of process is also required. See Commentary to Rule 12.110. Both parties must file and serve a financial affidavit, F.S. 61.30(14); Rule 12.285(d)(1), and a child support guidelines worksheet, Rule 12.285(j), and comply with the mandatory disclosure requirements of Rule 12.285, Rule 12.285(d). See Forms 12.902(b)–(c), (e). See also §7.35. If the parenting plan or time-sharing are issues, an affidavit under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is required. F.S. 61.522. See Fla.Sup.Ct.App.Fam.L. Form 12.902(d). The petitioner must file a Family Law Cover Sheet, Form 12.928. Rule 12.100(a). The petitioner must also file a notice of related cases, Form 12.900(h), if related cases are “known or reasonably ascertainable.” Fla.R.Jud.Admin. 2.545(d)(1). A court may not modify support without pleadings requesting modification. Newberry v. Newberry, 831 So.2d 749 (Fla. 5th DCA 2002). A petition to modify custody, visitation, or parental responsibility was also insufficient alone to permit modification of support in Wynn v. Wynn, 727 So.2d 282 (Fla. 2d DCA 1999); Defreitas v. Defreitas, 398 So.2d 991 (Fla. 4th DCA 1981). The court may not order modification on its own motion unless proper notice is given so that the parties have a fair opportunity to be heard. Washington v. Fudge, 616 So.2d 196 (Fla. 3d DCA 1993). The court cannot modify child support on a party‟s motion for contempt for non-payment of child support. McGrath v. Caron, 8 So.3d 1253 (Fla. 4th DCA 2009). Specific allegations for modification pleadings have not been required by case law or statute. However, a petition seeking modification must be sufficient to provide notice and an opportunity to be heard. See Hancock v. Tipton, 732 So.2d 1246 (Fla. 4th DCA 1998). See §7.34. “Simple pleadings” demonstrating a change of circumstances have been held sufficient for modification proceedings. Chovnick v. Chovnick, 369 So.2d 355 (Fla. 2d DCA 1979). Rule 1.110(b) states that a petition must contain a short and plain statement of the ultimate facts showing that the pleader is entitled to relief and demand for judgment for the relief to which the pleader is entitled. A pleading alleging a “substantial change in circumstances” without any supporting facts would be insufficient. No statement of jurisdiction need be included unless this is a new proceeding. 168 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). In Wooding v. Williams, 581 So.2d 985 (Fla. 3d DCA 1991), the payor sought a reduction of child support. The trial court denied the reduction and increased the support sua sponte. The appellate court reversed, holding that the increase in support constituted a denial of due process without pleadings seeking the relief and notice and an opportunity to be heard. In Murphy v. Murphy, 948 So.2d 864 (Fla. 5th DCA 2007), when the payor sought a reduction of child support, but failed to specifically allege both the former wife‟s increased income or the parties‟ marital settlement agreement as grounds for modification, the court held that the payor had waived those arguments in favor of modification. See Form 12.905(b) for a petition for modification of child support. B. [§7.34] Notice And Hearing Due process requires not only a pleading seeking modification of child support, but also notice and an opportunity to be heard at an evidentiary hearing. State, Dept. of Revenue v. Kiedaisch, 670 So.2d 1058 (Fla. 2d DCA 1996); Betancourt v. Sanders, 629 So.2d 272 (Fla. 1st DCA 1993); Johnson v. Johnson, 489 So.2d 1193 (Fla. 3d DCA 1986). The notice of hearing must specifically advise the parties that the issue of modification will be considered at the hearing. Alexander v. Alexander, 683 So.2d 172 (Fla. 1st DCA 1996); Hammond v. Hammond, 492 So.2d 837 (Fla. 5th DCA 1986). A motion for continuance and consideration of arrearages does not meet these requirements. Levitt v. Levitt, 454 So.2d 1070 (Fla. 2d DCA 1984); Wallace v. Wallace, 413 So.2d 1261 (Fla. 2d DCA 1982). Similarly, notice that the court will consider an arrearage does not put a party on notice that the court might modify the child support order. Dept. of Health & Rehabilitative Services ex rel. Newhall v. Smith, 605 So.2d 1335 (Fla. 5th DCA 1992). An oral motion to modify made in open court has also been held insufficient to meet due process requirements. Purvis v. Carver, 303 So.2d 681 (Fla. 4th DCA 1974). The court may not modify support on its own initiative without notice to all parties, State, Dept. of Health & Rehabilitative Services v. Cushing, 632 So.2d 285 (Fla. 2d DCA 1994), nor may support be modified at a contempt hearing when the issue has not been pleaded or noticed, see State, Dept. of Revenue ex rel. Arnold v. Collins, 727 So.2d 1099 (Fla. 2d DCA 1999); Dept. of Health & Rehabilitative Services v. Ward, 560 So.2d 1381 (Fla. 5th DCA 1990). In Bolton v. Bolton, 462 So.2d 587 (Fla. 2d DCA 1985), the trial court denied modification after considering only the parties‟ financial affidavits. The appellate court reversed, holding that the absence of an evidentiary hearing constituted a denial of due process. 169 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The court may consider the parties‟ circumstances both at the time of the petition and at the time of the final hearing in ruling on a request for modification. Schwartz v. Schwartz, 712 So.2d 1243 (Fla. 4th DCA 1998). A notice of hearing must give the respondent sufficient time to prepare for the hearing. Young v. Young, 431 So.2d 233 (Fla. 1st DCA 1983). In Brewer v. Solovsky, 945 So.2d 610 (Fla. 4th DCA 2006), the court held that the trial court erred in transferring the IRS dependency exemption when neither party had pleaded or argued the issue. C. [§7.35] Discovery And Mandatory Disclosure Every petition for establishment or modification of child support must be accompanied by an affidavit showing the party‟s income, allowable deductions, and net income. This affidavit is to be served with the petition. The respondent includes his or her affidavit with the answer to the petition. F.S. 61.30(14). Fla.Fam.L.R.P. 12.285(c)(1) and (d)(1) also require the filing and exchange of financial affidavits, Form 12.902(b) or (c), in all modification of child support cases. Although some other mandatory disclosure requirements may be waived by the parties or the court, this requirement may not. Rule 12.285(a)(1). If no temporary relief is sought, the affidavits (and other mandatory disclosure) are due within 45 days of service of the initial pleading on the respondent. Rule 12.285(b)(2). Rule 12.285 imposes a duty of mandatory financial disclosure on both parties in modification actions. The specific items to be exchanged are listed in Rules 12.285(c) (temporary relief) and (d) (initial and supplemental proceedings). Parties also have a duty to supplement disclosure and amend financial affidavits “whenever a material change in their financial status occurs,” Rule 12.285(e)(1), or when it is determined that a previous disclosure was not correct when made or no longer is correct, Rule 12.280(a). Each party must also file a verified certificate of compliance, Form 12.932. Rule 12.285(i). In any proceeding in which child support is an issue, each party must serve and file a child support guidelines worksheet in substantial conformity with Form 12.902(e). Unlike the other mandatory disclosure deadlines, the worksheet must be served and filed “at or prior to a hearing” on this issue. Rule 12.285(j). This requirement may not be waived by the parties, id., or the court, Rule 12.285(a)(1). A full disclosure of the parties‟ financial circumstances is necessary for the court to make a complete evaluation of their request. In Woodward v. Berkery, 714 So.2d 1027, 1036 (Fla. 4th DCA 1998), however, the court stated that the “scope of 170 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). discovery in a modification proceeding is necessarily narrower than in a plenary proceeding to establish the need and amount of such support in the first instance.” Florida appellate courts have attempted to balance the extensive cost of preparing the documents and statements sought in the name of financial disclosure against the trial courts‟ need to have the information necessary to a proper determination. In Miller v. Schou, 616 So.2d 436 (Fla. 1993), the court held that because an increase in ability to pay in itself was sufficient to warrant an increase in child support, a payor‟s financial status must be known to the court before it can determine the appropriate amount of the increase. The court cautioned that “the filing of a modification petition alleging good fortune does not in and of itself entitle the petitioning parent to a wholesale foray into all of the paying parent‟s financial documents.” Thus, the extent of discovery in modification actions was left “in the able hands of the trial court, to determine within its discretion whether the particular disclosure is reasonable.” Id. at 439. In Woodward, the appellate court quashed the trial court‟s order denying the respondent/father‟s request for a protective order to keep his discovery responses confidential. The petitioner/mother had stated her intention to release the documents for publication in The Miami Herald. The appellate court noted the trial judge‟s discretion to curtail the mandatory disclosure requirements of Rule 12.285 if good cause exists, and stated that “there is nothing in the Family Law Rules suggesting that one of its purposes is to facilitate disclosure to the press.” Woodward, 714 So.2d at 1038. See also Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002) (discovery of prenuptial agreement from mother‟s remarriage denied). See Chapter 7 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for discussion of mandatory disclosure and other discovery. D. [§7.36] Child Support Guidelines Any action for modification of child support is governed by the child support guidelines in F.S. 61.30. F.S. 61.30(1)(a); Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003). This is so even if the initial support order was entered before the effective date of the guidelines statute. Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994); Martinez v. Garcia, 575 So.2d 1365 (Fla. 3d DCA 1991). Changes in the child support guidelines amounts are remedial in nature and may be applied retroactively to cases pending when the changes take effect. Arze v. Sadough-Arze, 789 So.2d 1141 (Fla. 4th DCA 2001); Reed v. Reed, 597 So.2d 936 (Fla. 1st DCA 1992). 171 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The guidelines amount “presumptively establishes” the amount the court must order as child support for both initial and modification proceedings, F.S. 61.30(1)(a), with allowance for certain specific adjustments. The practitioner should pay careful attention to the statutory adjustments, because they may provide grounds for substantial deviation. See McGhee v. Childress, 724 So.2d 196 (Fla. 1st DCA 1999). One example of an unusual ground for deviation from the presumptive guidelines amount was the payor‟s need to replace an expensive leg prosthesis in State, Dept. of Revenue ex rel. Bunting v. Cain, 675 So.2d 679 (Fla. 1st DCA 1996), but specific findings were required of the trial court. The guidelines may also be used to provide the basis for proving a substantial change in circumstances on which modification of an existing order may be granted, if the difference between the existing order and the new amount is at least 15% or $50, whichever is greater. F.S. 61.30(1)(b). F.S. 61.30(1)(b), however, may not be used to justify a downward modification. Turner v. Turner, 695 So.2d 422 (Fla. 3d DCA 1997). See discussion in §7.11. When modifying child support, revisions to the guidelines statute should be considered. For example, the statute was amended in 1998 to require that noncovered medical, dental, and prescription drug expenses for the children be added to the basic support obligation unless payment of them has been ordered separately on a percentage basis. F.S. 61.30(8). Former F.S. 61.30(11)(g) permitted the court to adjust child support for periods of consecutive visitation exceeding 28 days. This provision has been repealed. In its place, F.S. 61.30(11)(b) now requires the court to adjust a child support award when the parties‟ parenting plan will result in each child spending a “substantial amount of time” with each parent. See §7.30 for further discussion of substantial shared parenting time. The court may deviate from the guidelines amount by up to 5% without making findings. A deviation of 5% or more, however, requires written findings “explaining why ordering payment of such guideline amount would be unjust or inappropriate.” F.S. 61.30(1)(a); Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005); McDaniel v. McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003). See Chapter 12 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for detailed discussion of the child support guidelines. E. [§7.37] Temporary Relief F.S. 61.13(1)(a) may authorize an award of temporary relief in modification actions. In Parks v. Parks, 424 So.2d 874 (Fla. 1st DCA 1983), the opinion indicates that a temporary support order was entered during the pendency of the modification action. In Saulnier v. Saulnier, 425 So.2d 558, 559 (Fla. 4th DCA 1983), however, the court 172 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). found “no authority for such award of temporary relief prior to final hearing in this post-judgment proceeding.” The court reasoned that a temporary award subjected the husband immediately to contempt for nonpayment of an obligation that ultimately might be determined improper. The proper relief could be had, it stated, by making the modification retroactive to the date of the application. See §7.51. See also Levinson v. Levinson, 895 So.2d 432 (Fla. 4th DCA 2004). If temporary relief is sought, mandatory disclosure must be made by the party seeking relief with service of the notice of hearing, unless the documents have already been served. Fla.Fam.L.R.P. 12.285(b)(1)(A). The respondent must make disclosure at least two business days before the hearing, if service is by delivery, or seven days before, if service is by mail. The responding party, however, is to have no less than 12 days to respond. Rule 12.285(b)(1)(B). A child support guidelines worksheet, in substantial conformity with Form 12.902(e), must also be served and filed by each party at or before any hearing on child support. Rule 12.285(j). Both parties must also file a verified certificate of compliance with mandatory disclosure, Form 12.932. Rule 12.285(i). F. [§7.38] Referral To General Magistrate Or Hearing Officer As discussed in §7.34, due process requires an evidentiary hearing on a petition for modification of child support. Because of the congestion of the calendar in many courts, judges often refer modification actions to general magistrates or child support enforcement hearing officers under Fla.Fam.L.R.P. 12.490 and 12.491. A party may object to a referral to a general magistrate by filing a written objection within 10 days of the service of the order of referral. Otherwise, consent to the referral is implied. Rule 12.490(b)(1). There is no right to object to a referral to a support enforcement hearing officer. Rule 12.491(d). However, the referral is limited to the issue of child support and enforcement of alimony when there is an ongoing child support obligation. Rule 12.491(b). See Chapter 20 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for further discussion of the general magistrate and child support enforcement hearing officer systems in Florida. G. Proof 1. [§7.39] Burden Of Proof The heavy burden of showing a substantial change in circumstances in a modification of child support action lies with the party seeking the modification. Hand v. Kushmer, 173 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 673 So.2d 926 (Fla. 2d DCA 1996); Landa v. Massie, 593 So.2d 1146 (Fla. 3d DCA 1992). See Overbey v. Overbey, 698 So.2d 811 (Fla. 1997). F.S. 61.30(1)(b) provides: The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances. In Turner v. Turner, 695 So.2d 422 (Fla. 3d DCA 1997), the trial court used F.S. 61.30(1)(b) as the sole reason to decrease the father‟s agreed-to child support, which was above the guidelines amount. The appellate court reversed, holding that this use of the statute was not within its intent. In Fleischmann v. Fleischmann, 868 So.2d 1 (Fla. 4th DCA 2004), the court held that the payor‟s child support obligation could not be modified based solely on an amendment to the guidelines statute, when the payor had failed to demonstrate an independent substantial change in circumstance to justify modification. The burden of proving a substantial change in circumstances when the support was set by agreement, rather than determined by a court order, should be the same under the statute. F.S. 61.14(7). Case law, however, holds that a party seeking a reduction in child support set by agreement bears a heavier burden of proof. See Overbey; Tietig v. Boggs, 602 So.2d 1250 (Fla. 1992); Simmons v. Simmons, 922 So.2d 373 (Fla. 4th DCA 2006); Fleischmann; Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997). 2. Change In Circumstances a. [§7.40] Needs Of Child Testimony and documentary evidence from the party paying the child‟s expenses is the best way to show that needs have increased. Some courts will judicially notice that increased needs are attendant to a child‟s advancing age. Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983). See F.S. 61.30(11)(a)5 (age of child as factor for adjustment to guidelines amount). See also §7.21. The courts generally prefer not to place children between their parents by compelling testimony for or against one parent. See Fla.Fam.L.R.P. 12.407 regarding bringing children to court. See also Chapter 11 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010). b. [§7.41] Ability To Pay 174 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). “[A] substantial change in the paying parent‟s income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need.” Garone v. Goller, 878 So.2d 430, 431 (Fla. 3d DCA 2004). See Miller v. Schou, 616 So.2d 436 (Fla. 1993). Proof of changed ability to pay is best demonstrated using the financial records of the payor. Comparing current financial affidavits, tax returns, or financial statements with those in existence at the time the support obligation was initially set clearly reflects whether a change exists. In the absence of financial statements or tax returns, source documents such as appraisals, bills, bank records, and pay stubs may be analyzed to create both past and present financial statements. A lack of evidence as to the payor‟s income precludes imputing income to determine a child support obligation. Dept. of Revenue v. Green, 711 So.2d 1245 (Fla. 5th DCA 1998). See also Orsini v. Orsini, 909 So.2d 558 (Fla. 4th DCA 2005); Bellville v. Bellville, 763 So.2d 1076 (Fla. 4th DCA 1999) (trial court erred in imputing income solely from bank records). Determination of ability to pay is also required before ordering payment of arrearages. A strong showing is required before a downward modification is granted when the party seeking the reduction is operating in an entrepreneurial capacity. The concern of the court is that a self-employed person can record drastic fluctuation in income based on initiative. See Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA 1991); O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981). See also §§7.15 and 7.36. It is a good idea, and not unusual for the court, to average income over three years. The practitioner must be certain that all sources of income and assets have been disclosed by the other party. Obviously, both sides in a modification action have access to all discovery tools available in the Florida Rules of Civil Procedure and Florida Family Law Rules of Procedure. See §7.35 of this chapter and Chapter 7 of Florida Dissolution of Marriage (Fla. Bar CLE 10th ed. 2010) for further discussion of discovery. In Harrell v. Harrell, 947 So.2d 638, 639 (Fla. 4th DCA 2007), the court held that imputing income to a party from gambling is dependent on reliable evidence that such income is “regular and dependable.” c. [§7.42] Inflation As discussed in §7.28, the effect of inflation on a child support award may be judicially noticed. England v. England, 520 So.2d 699 (Fla. 4th DCA 1988); Desilets v. Desilets, 377 So.2d 761 (Fla. 2d DCA 1979). Expert testimony is another means by 175 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). which the effect of inflation may be proved to the court. See Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977). It is critical that the party seeking modification demonstrate the specific adverse impact that inflation has had on the original award. In Petersen v. Petersen, 392 So.2d 298, 300 (Fla. 4th DCA 1981), the concurring opinion spoke against “reliance upon national inflationary trends alone as a basis for modification.” In Boylan v. Cooper, 482 So.2d 584 (Fla. 5th DCA 1986), the court affirmed the denial of an increase in child support when the argument was based solely on inflation and the increased ages of the children, dismissing those arguments as “factors common in all cases.” See also Hale v. Hale, 567 So.2d 527 (Fla. 2d DCA 1990), and §§7.22 and 7.28. d. [§7.43] Voluntary Payments Payors of child support will frequently begin to pay for items not required by the support order, either by making purchases for the child or increasing the support paid to the other parent. These voluntary payments, although not sufficient alone to justify modification, have been held to be a tacit acknowledgment of an increase in the child‟s needs and the payor‟s ability to pay. This argument is strengthened if the payee can show that the increased amounts have been paid consistently over a period of time. Hine v. Hine, 558 So.2d 496 (Fla. 3d DCA 1990); Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981). In Nevins v. Nevins, 495 So.2d 918 (Fla. 4th DCA 1986), the court found that voluntary payments were sufficient evidence of increased need to preclude entry of a summary judgment denying an increase in child support, and remanded for a trial on the merits. Other cases, however, have rejected the contention that modification follows voluntarily increased payments as a matter of law. See Douglass v. Rigg, 525 So.2d 494 (Fla. 4th DCA 1988); Young v. Young, 456 So.2d 1282 (Fla. 3d DCA 1984); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980). This ground is best demonstrated to the court through the testimony and financial records of the payor and the recipient. “Ordinarily, child support arrearages become vested in the custodial parent.” Tash v. Oesterle, 380 So.2d 1316, 1318 (Fla. 3d DCA 1980). Payments made beyond courtordered support generally are not entitled to be credited against past or future courtordered support payments. State Dept. of Health & Rehabilitative Services ex rel. Pearce v. Pearce, 633 So.2d 33 (Fla. 2d DCA 1994). There are, however, certain equitable situations in which payments made directly to or on behalf of the child in substantial compliance with the support order can be used to set off an arrearage. See, e.g., Goldman v. Goldman, 529 So.2d 1260 (Fla. 3d DCA 1988). But see State, Dept. of Revenue ex rel. Cherta v. Cherta, 711 So.2d 1341 (Fla. 3d DCA 1998). H. Defenses 176 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 1. [§7.44] Arrearages Unpaid arrearages, without a reasonable explanation as to their cause, may constitute “unclean hands” that will defeat a payor‟s petition for modification of child support. Newman v. Newman, 459 So.2d 1129 (Fla. 3d DCA 1984). The most extreme case of this type is Waskin v. Waskin, 484 So.2d 1277 (Fla. 3d DCA 1986), in which the husband‟s financial difficulties were the result of his attempt to have the wife murdered. Other less extreme cases recognizing the doctrine of unclean hands are Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902 (1944); Dragland v. Dragland, 584 So.2d 46 (Fla. 2d DCA 1991); and Cain v. Cain, 436 So.2d 367 (Fla. 4th DCA 1983). F.S. 61.14(4) authorizes the court to reduce alimony or child support if the circumstances justify the reduction, regardless of whether the party applying for the reduction has fully paid the accrued obligations to the other. This apparent conflict with the foregoing cases may be reconciled with the determination that arrearages due to a lack of ability to pay will not bar modification. In Blender v. Blender, 760 So.2d 950, 952 (Fla. 4th DCA 1999), the court stated that “an arrearage does not per se require denial of a modification petition so long as respondent can show that he or she was unable to comply with the previous support order.” However, arrearages accrued willfully while the payor has the ability to pay will constitute “unclean hands.” Support awarded in a final judgment becomes a vested right of the payee as payments are due. Livingston v. Livingston, 686 So.2d 664 (Fla. 1st DCA 1996). When ordering modification, a court may not reduce arrearages without finding extraordinary or compelling reasons. Ulander v. Ulander, 824 So.2d 309 (Fla. 1st DCA 2002). See Chapter 3 of this manual for further discussion of enforcement of existing obligations. 2. [§7.45] Agreement Not To Modify The obligation to support one‟s child cannot be disposed of by a contractual agreement. Fleming v. Brown, 581 So.2d 202 (Fla. 5th DCA 1991). No contract or order can divest a court of its authority to modify child support. Leng-Gross v. Gross, 898 So.2d 241 (Fla. 4th DCA 2005). The court has inherent authority to modify child support, regardless of any agreement between the parties, and parents may not contract away their children‟s rights to support. Dept. of Health & Rehabilitative Services v. Morley, 570 So.2d 402 (Fla. 5th DCA 1990). Accordingly, a court may modify child support obligations, notwithstanding a provision in a settlement agreement that neither party will seek any modification. The parties, however, may 177 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). agree that child support will be modifiable without showing a substantial change of circumstance. Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996). In Shellmyer v. Shellmyer, 418 So.2d 477 (Fla. 4th DCA 1982), the payor transferred his interest in the former marital residence to his former wife instead of paying past due and future child support. Notwithstanding this agreement, the wife later sought child support. The court struck the parties‟ agreement, ordered the property reconveyed to the payor, and enforced the support. Parents may modify court-ordered child support only if the child continues to receive a roughly equivalent amount and the change serves the best interests of the child. Ervin v. Chason, 750 So.2d 148 (Fla. 1st DCA 2000). Simply stated, the right to receive or modify child support cannot be waived. Casbar v. Dicanio, 666 So.2d 1028 (Fla. 4th DCA 1996). This is different from the standard for alimony. See Chapter 6 of this manual. 3. [§7.46] Time-Sharing If a parent refuses to honor the time-sharing schedule, the parent who is denied timesharing must continue to pay court-ordered child support. F.S. 61.13(4)(b). Likewise, if a parent fails to pay court-ordered support, the other parent may not refuse to honor the time-sharing schedule. F.S. 61.13(4)(a). In Schutz v. Schutz, 581 So.2d 1290 (Fla. 1991), the court held that the primary residential parent had a strong affirmative obligation to encourage and nurture the relationship between the children and the other parent. See F.S. 61.13(3)(a). The court had the power to deny modification to a residential parent who has refused to allow visitation with the other parent in Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967). But see Bassett v. Saunders, 835 So.2d 1198 (Fla. 1st DCA 2003) (mother‟s failure to allow visitation to father did not excuse father from obligation to pay retroactive child support); State, Dept. of Revenue ex rel. Taylor v. David, 684 So.2d 308 (Fla. 1st DCA 1996) (noncustodial parent‟s obligation to pay support unaffected by any interference with visitation). This affirmative duty is so strong that, despite several cases holding that unpaid child support is a vested right not subject to modification without extraordinary or compelling circumstances, such as waiver, laches, estoppel, or reprehensible conduct on the part of a custodial parent, Fileger v. Fileger, 478 So.2d 105 (Fla. 2d DCA 1985), the District Court of Appeal, Third District, held that willful denial of visitation may justify the discharge of arrearages in Kirby v. Kirby, 405 So.2d 207 (Fla. 3d DCA 1981). But see State, Dept. of Revenue, ex rel. Rochell v. Morris, 736 So.2d 41 (Fla. 1st DCA 178 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). 1999) (mother‟s alleged failure or refusal to comply with visitation obligations was not valid reason for trial court to deny enforcement of child support order). Payors should not resort to self help. The refusal of a parent to honor the timesharing schedule is not a ground to withhold child support or alimony. There is no statutory prohibition, however, on using such a refusal to deny modification. Although F.S. 61.13(4)(c) provides a remedy to a parent when the time-sharing schedule is not honored, Kirby remains good law. The defense may be likened to that of “unclean hands.” See §7.44 for further discussion of arrearages and §§3.90–3.91 of this manual for discussion of enforcement of parenting plans and time-sharing. Denial of visitation will not serve as a defense to an action commenced under UIFSA, because UIFSA actions may address only support and may not consider visitation. Additionally, the payment of support may not be conditioned on the granting of visitation. Towne v. Buckingham, 624 So.2d 858 (Fla. 2d DCA 1993); State ex rel. Ridge v. Ridge, 483 So.2d 766 (Fla. 5th DCA 1986); Jones v. Jones, 471 So.2d 1363 (Fla. 3d DCA 1985). See Chapter 8 of this manual. In Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003), the mother objected to the application of F.S. 61.30(11)(b) (substantial shared parenting time) to calculate the child support guidelines amount because the father had never exercised the amount of visitation allotted to him in the final judgment. The appellate court held that application of the statute was mandatory, but that F.S. 61.30(11)(a) provided a basis for modification if the father failed to exercise the visitation in the future. However, in Smith v. Smith, 35 FLW D2249 (Fla. 2d DCA 2010), the appellate court reversed a trial court order modifying child support based on substantial shared parenting time when the mother failed to exercise the time-sharing awarded to her. See §7.30 regarding modification of child support based on substantial shared parenting time. 4. [§7.47] Insufficiency Of Proof In any action for modification of child support, the defending party may claim that the movant is unable to prove the allegations contained in the petition for modification. This is not an affirmative defense; rather, it is a denial of the material allegations of the petition. 5. [§7.48] Laches Laches asserted as a defense requires proof of “„(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.‟” Garcia v. Guerra, 738 So.2d 459, 461 (Fla. 3d DCA 1999), quoting McCray v. State, 699 So.2d 1366, 1368 (Fla. 1997), limited 736 So.2d 1270. 179 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). In McClish v. Lee, 633 So.2d 56 (Fla. 5th DCA 1994), the parties agreed that the payor would be released from his child support obligation in return for surrendering visitation rights. He complied with the agreement. Sixteen years later, the wife brought an action for enforcement of child support. The court found her claim to be barred by laches. A similar result was reached by the court in Hall v. Wilson, 530 So.2d 410 (Fla. 3d DCA 1988), which analyzed several cases using the laches defense. If it could be shown that denial of a modification petition on the basis of laches would not jeopardize the welfare of the children, the logic of these cases might apply to a modification proceeding. In Fowhand v. Piper, 611 So.2d 1308 (Fla. 1st DCA 1992), the court rejected a laches defense when a putative father denied paternity and no action was filed for nine years. At that time, an action was filed for paternity and retroactive support. The father argued that both laches and the statute of limitations barred the claim but the court rejected his contentions. However, in Krufal v. Jorgensen, 830 So.2d 228 (Fla. 4th DCA 2002), the appellate court reversed an order reducing the child support guidelines amount on a finding of laches or fraud by the mother. I. Order 1. [§7.49] In General After an evidentiary hearing, the court will enter an order either granting or denying the petition based on the factors in F.S. 61.14(1)(a) (change of circumstances or financial ability of the parties, or majority of the child). If it is denied, the support amount continues unchanged. If the petition is granted, the court must calculate the new support amount using the guidelines schedule in F.S. 61.30 and determine the method of payment (see §7.50) and the effective date of the change (see §7.51). It is error for the court to fail to make provision for the child‟s health care coverage as required by F.S. 61.13(1)(b). Morrow v. Frommer, 913 So.2d 1195 (Fla. 4th DCA 2005). Regardless of whether the petition for modification is granted or denied, the court may consider an award of attorneys‟ fees, suit money, and costs. See F.S. 61.16; Riggs v. Lowrance, 766 So.2d 1102 (Fla. 2d DCA 2000); Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981). See Fla.Sup.Ct.App.Fam.L. Form 12.993(b) for an order modifying child support. 2. [§7.50] Method Of Payment 180 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). Unless both parties request an alternative method and the court finds that it is in the best interest of the child, all child support orders must direct that payment be made through the State Disbursement Unit (SDU). F.S. 61.13(1)(d)2, 61.1824. On entry of an order modifying a child support obligation, the court must also enter a separate order for income deduction if one has not been entered. F.S. 61.1301(1)(a). The income deduction order is effective immediately unless the court, on good cause shown, finds that the order should be effective only on a delinquency in an amount equal to no more than one month‟s support. F.S. 61.1301(1)(c). To establish good cause, written findings are required that explain why immediate income deduction would not be in the child‟s best interest; show proof of timely payment of the prior obligation without an income deduction order; and specify an agreement by the obligor to advise the Title IV-D agency (if applicable) and the court depository of any change in payor or health insurance; or state there is a signed, written agreement providing an alternative arrangement between the obligor and obligee and, if appropriate, the Title IV-D agency. F.S. 61.1301(1)(c)1–(1)(c)3. Because of the requirements for entry of income deduction orders in F.S. 61.1301, the requirements for payment through the depository or SDU effectively include most child support orders. See Fla.Fam.L.R.P. Forms 12.996(a), Income Deduction Order, and 12.996(b), Notice to Payor. 3. [§7.51] Effective Date The effective date for a modification increasing child support usually is the date the petitioner filed for modification, if the changed needs or ability to pay existed as of that date. Miller v. Miller, 826 So.2d 480 (Fla. 1st DCA 2002); Nierenberg v. Nierenberg, 758 So.2d 1179 (Fla. 4th DCA 2000); Robinson v. Robinson, 657 So.2d 958 (Fla. 1st DCA 1995). That rule, however, is not inflexible. The trial judge has discretion to make the modification effective as of the date of the petition for modification or any time after that date but before the date of the order of modification. Anderson v. Anderson, 609 So.2d 87 (Fla. 1st DCA 1992); Olds v. Olds, 584 So.2d 646 (Fla. 2d DCA 1991). “It is an abuse of discretion, however, to fail to award support from the date of the petition for modification where the need for the 181 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). support and the ability of the parent to pay existed at the time that the modification petition was filed.” Butler v. Brewster, 629 So.2d 1092, 1093 (Fla. 4th DCA 1994). The court may make its modification order effective as of the date of final hearing under appropriate circumstances. Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002); DeSantis v. Smith, 634 So.2d 796 (Fla. 4th DCA 1994); Keel v. Keel, 597 So.2d 433 (Fla. 1st DCA 1992). The modification may not be made retroactive, however, to a date before the filing of the petition. McDowell v. McDowell, 770 So.2d 1289 (Fla. 1st DCA 2000); Fayson v. Fayson, 482 So.2d 523 (Fla. 5th DCA 1986).The trial court erred in modifying child support retroactively to the date of the final judgment, despite a reservation of jurisdiction to do so, when the mother had waited 11 years to seek modification in Cordell v. Cordell, 30 So. 3d 647 (Fla 3d DCA 2010). The petition need not request a retroactive award as long as the grounds for modification existed at the time of the petition. Pelton v. Pelton, 617 So.2d 714 (Fla. 1st DCA 1993). An order reducing child support should not be made retroactive unless there are “extraordinary or compelling circumstances.” Livingston v. Livingston, 686 So.2d 664, 665 (Fla. 1st DCA 1996). But see Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001) (modification based on child attaining majority). In Fabio v. Monell, 594 So.2d 782 (Fla. 5th DCA 1992), the court held that an order modifying a foreign judgment that has been domesticated as a Florida judgment may not be retroactive to a date before it was established in Florida. However, in Barr v. Barr, 724 So.2d 1200 (Fla. 1st DCA 1998), the court certified conflict with Fabio, reasoning that if a domesticated judgment is to be treated as a Florida judgment, it may be made effective as of the date the petition was filed. See Chapter 9 of this manual regarding foreign judgments. Child support arrearages are a vested right and are not subject to retroactive modification. Fisher v. Fisher, 613 So.2d 1370 (Fla. 2d DCA 1993); Waldman v. Waldman, 612 So.2d 703 (Fla. 3d DCA 1993). J. [§7.52] Appeal Subject matter jurisdiction for the appeal of a final judgment granting or denying modification lies with the district courts of appeal under Fla.R.App.P. 9.030(b)(1)(A). The appeal is commenced by the filing of two copies of a notice of appeal, accompanied by filing fees, with the clerk of the circuit court within 30 days of rendition of the modification order. Rule 9.110(b). The proceedings thereafter are governed by Rule 9.110. 182 th EXCERPT REPRINTED WITH PERMISSION. the Florida Proceedings After dissolution of Marriage (Fla. Bar CLE 10 ed. 2010). The standard of review from a grant or denial of a petition for modification of a child support award is abuse of discretion. An appellate court will affirm the award of child support if it is supported by substantial, competent evidence in the record. G.S.P. v. K.B., 30 So.3d 667 (Fla. 2d DCA 2010). See Chapter 1 of this manual for discussion of appeals. 183 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. Procedure Before General Magistrates and Child Support Enforcement Hearing Officers By. R. Mitchell Prugh The Florida Bar Journal July/August, 2007 Volume 81, No. 7, Page 77. Over the past decade, Florida increasingly has relied on state-paid general magistrates and child support enforcement hearing officers. Although neither general magistrates nor hearing officers appear in Article V of the Florida Constitution or the Florida Statutes, together they form a rapidly growing specialized court for family law. Florida funds family general magistrates and hearing officers to provide faster court access for family disputes, relieve demands on judges‟ case loads, and save judiciary expenses.1 This article discusses correct referral and notice, recorded hearings, and the filing of exceptions or a motion to vacate order. Florida‟s state-funded general magistrates and hearing officers are structured differently than Article V judges. Unlike Article V judges, they lack a set tenure in office and protection of salary, and instead are state court system at-will employees. General magistrates hear cases only by the implicit or express consent of the parties and are, therefore, conceivably subject to pressure to issue popular rulings. Both general magistrates and hearing officers are selected outside the election or merit retention process for judges and file no financial disclosure, 2 although they may individually issue case dispositive rulings in thousands of court cases each year that receive deferential review by the Article V courts. General magistrates, formerly called general masters, have a long history in chancery.3 General magistrates serve by appointment of the judges within a circuit and remain in office until “removed by the court.”4 A general magistrate may be disqualified from hearing a case on the same bases as a judge.5 General magistrates may hear most family law matters which do not require an order that takes immediate effect.6 A party must file an objection to the referral within 10 days after service of the referral or be deemed to have implicitly consented to the referral.7 Objections can be filed before the time a responsive pleading is due if the referral was made within 20 days of when action filed.8 Failure to timely object may be overcome by good cause shown before hearing commences.9 One court decision has held a party may object 185 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. before the referral is made.10 A party waives the right to object to a referral actually made if the party participates in the hearing, but the party does not waive objection if there is a total lack of any referral order.11 One consequence of the referral system is that the parties may exercise limited “judge shopping” by consenting or objecting to a referral.12 The notice of referral must state with specificity what is being referred to the general magistrate and must contain certain mandatory language.13 An entire case is generally not referred to a general magistrate unless the parties consent. 14 After referral, additional matters may not be referred without agreement of parties, 15 and the general magistrate is without jurisdiction to hear additional matters not referred. 16 An appeal from a referral lacking consent may be heard by writ of mandamus, writ of prohibition, or direct appeal from the order on the report. 17 Hearing officers are the court created response to federal legislation requiring expedited child support procedures in order to receive federal funds. 18 By court rule, hearing officers are appointed by the chief judge within a circuit and serve at the pleasure of the chief judge and a majority of the circuit judges in the circuit.19 There is no procedure to object to a case being referred to a hearing officer. 20 Hearing officers are limited to hearing cases establishing, modifying, or enforcing child support or a support order in conjunction with child support.21 Hearing officers may hear attorneys‟ fee issues if there is no objection,22 but, they lack jurisdiction to hear other family law matters.23 The general magistrate or a party may set the action for hearing24 and notice the hearing.25 Any party may apply for a court order to require the general magistrate to speed the proceedings or certify a reason for delay.26 The family rules contain preferred language for the notice of hearing, including whether electronic recording is provided by the court.27 The failure to provide notice of the hearing requires reversal even if a party later participates by timely filing exceptions after the hearing.28 Hearing officers are responsible under court rule for setting hearings in child support actions.29 The second essential practice point is that general magistrates and hearing officers are required to record all hearings.30 Therefore, attorneys representing modestlyfunded clients may rely on the recording to preserve an appeals record without paying a court reporter appearance fee. The recording must be transcribed only when filing exceptions to a general magistrate‟s report or when moving to vacate a hearing officer‟s recommended order.31 The lack of audible recording will result in a new 186 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. hearing.32 The general magistrate may proceed ex parte if one or more of the parties fails to appear at a noticed hearing.33 The rules of evidence apply to hearings before the general magistrate.34 A party must contemporaneously object to preserve the objection.35 Contemporaneous objection must be made to a child support hearing officer‟s jurisdiction to hear attorneys‟ fee issues.36 As one or more parties appear pro se in most cases, court rules provide that the general magistrate may examine the witnesses under oath.37 No comparable rule prescribes the hearing officer‟s powers to directly interrogate witnesses. The general magistrate must submit a report and recommendation to the circuit judge containing findings of fact, conclusions of law, and recommendations. 38 The report and recommendation in a juvenile case must contain specific language about filing exceptions.39 The hearing officer must also submit a recommended order containing findings of fact.40 If the general magistrate referral is to determine facts based on testimony, then older cases hold the report should indicate on what testimony it is based. 41 There is no particular form for the findings of fact; a review of the evidence and the findings taken from the evidence is sufficient.42 The general magistrate must submit the report while still sitting as a general magistrate; a report submitted after the general magistrate‟s resignation is a nullity.43 The general magistrate must give notice to the parties that the report and recommendation have been submitted to the circuit judge.44 If no party files exceptions, the circuit judge reviews the general magistrate‟s report and recommendation for 1) whether the evidence and facts support the recommendations and 2) whether the recommendations are justified under law.45 Similarly, the circuit judge “carefully considers” the hearing officer‟s recommended order for whether the evidence and findings “as fully set forth” in the recommended order support the recommendations, and the circuit judge enters the order “promptly” unless there appears reason to amend the order, conduct hearings, or rerefer the order to the hearing officer for further hearing.46 The third critical practice point is the filing of exceptions to a general magistrate‟s report and recommendation or filing a motion to vacate a court‟s order on the hearing officer‟s recommended order. The filing of exceptions occurs before a circuit judge rules on the general magistrate‟s report and recommendation; the motion to vacate 187 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. occurs after the circuit judge acts on the hearing officer‟s recommended order. In cases proceeding under the family law rules, a party objecting to a general magistrate‟s report and recommendation may serve exceptions within 10 days of being served with the report and recommendation.47 In contrast to prior chancery procedure, the family rules do not address enlargement of the 10-day period.48 In contrast to the family rules, in juvenile cases since 2006, a party may file exceptions within 10 days of being served with the report and recommendation.49 This difference should be noted. The failure to file exceptions will preclude further appellate review. 50 One court decision added the five-day mail rule to the 10-day limit in which to file exceptions.51 The exceptions must be stated with specificity.52 The court may not enter the order or take action until after the hearing on the exceptions. 53 In practice, parties often waive the 10-day period in order to expedite rendition of the court‟s signed order. In contrast, a motion to vacate the circuit judge‟s order on the hearing officer‟s recommended order is timely if served within 10 days after entry 54 of the circuit judge‟s order.55 By rule, the circuit judge must hear the motion to vacate a hearing officer‟s recommended order within 10 days after the moving party applies for a hearing.56 The filing of a motion to vacate stays enforcement of the order until the hearing is held.57 The record for exceptions or a motion to vacate consists of the court file, the transcript of the hearing, and all evidence accepted at the hearing.58 Since 1995, the court rules place the responsibilities to prepare the record 59 and the transcript60 on the party seeking review. The transcript must be filed at least 48 hours before the hearing.61 Court rules do not provide for general magistrates or hearing officers to rehear a matter unless the circuit judge orders further proceedings. 62 Rather than file a motion for rehearing, the better practice is to file the exceptions or motion to vacate and request the circuit judge to order further proceedings. Parties simply filing a motion for rehearing may find themselves procedurally barred from further review. If exceptions to the report and recommendation or a motion to vacate the recommended order are filed, then the circuit judge must review the entire record,63 including the electronic recording if necessary.64 The circuit judge must give a hearing on the exceptions filed to a general magistrate‟s report and recommendation. 65 The 188 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. hearing before the circuit judge on exceptions should be based on the record developed before the general magistrate and not a hearing de novo on the exceptions.66 The party filing the exceptions has the burden of providing record material from the hearing before the general magistrate to sustain the exceptions.67 The circuit judge applies as many as three standards of review to the general magistrate‟s report and recommendation when exceptions are filed. First, the circuit judge reviews the findings of fact under a clearly erroneous standard.68 A circuit judge errs by not following findings supported by competent and substantial evidence.69 Some court decisions analogize the standard of review for factual findings as that deference given by a judge to a jury decision,70 or the deference given by an appellate court to the trial court‟s factual findings.71 The circuit judge should defer to a general magistrate‟s findings based on witness credibility.72 Second, the circuit judge reviews the application of law to the facts under an abuse of discretion standard.73 An abuse of discretion occurs if no reasonable person would take the view adopted by the general magistrate.74 Some courts express this standard as allowing the circuit judge to revise or reject reports if the general magistrate has misconceived the legal effect of the facts or conclusions. 75 Some courts have held the circuit judge may reinterpret facts to reach an equitable conclusion. 76 One court has held that the circuit judge is not bound by recommendations that are not findings of fact based on disputed evidence.77 Third, the circuit judge and the appellate court review pure conclusions of law de novo.78 If the report relates to matters not referred, then the circuit judge may refer the case back to general magistrate or otherwise the report and recommendation is a nullity.79 In all cases the circuit judge may refer the matter back to the general magistrate for additional testimony. 80 For recommended orders from the hearing officer, the circuit judge should amend the recommended order, conduct further proceedings, or refer the case back to the hearing officer to conduct further proceedings.81 The circuit judge should not simply reject the recommended order in its entirety.82 An appeal to the appellate court from the circuit judge‟s order is reviewed for an abuse of discretion.83 Although a district court‟s consideration is essentially a third determination for a case, there are no reported decisions on whether a more restrictive City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), standard of review applies as it does in the cases of appellate review of local government or administrative decisions.84 189 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. 1 Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc). Code of Judicial Conduct, Application of the Code. Judicial Canons 1, 2A, and 3 apply to general magistrates. Financial disclosure is contained in Canon 7. 3 DeClements v. DeClements, 662 So. 2d 1276, 1279-80 (Fla. 3d D.C.A. 1995) (en banc). 4 Fla. R. Fam. P. 12.490(a); Fla. R. Juv. P. 8.257(a). 5 Fla. R. Fam. P. 12.490(c); Fla. R. Juv. P. 8.257 (c). 6 Fla. R. Fam. P. 12.490(c, g); Fla. R. Juv. P. 8.257(h). But see Little v. Little, 325 So. 2d 424 (Fla. 3d D.C.A. 1976), cert. denied, 341 So. 2d 1083 (Fla. 1976). 7 Fla. R. Fam. P. 12.490(b)(1)(A), 12.490(b)(1)(B) (less than 10 days); Fla. R. Juv. P. 8.257(b)(1), 8.257(b)(2) (less than 10 days). 8 Fla. R. Fam. P. 12.490(b)(1)(C). 9 Fla. R. Fam. P. 12.490(b)(1); Fla. R. Juv. P. 8.257(b)(1). 10 Young v. Young, 816 So. 2d 1267 (Fla. 3d D.C.A. 2002). 11 Hand v. Kushmer, 695 So. 2d 858, 859 (Fla. 2d D.C.A. 1997). 12 E.g., Crespo v. Crespo, 762 So. 2d 568, 570 (Fla. 3d D.C.A. 2000). 13 Merrigan v. Merrigan, 947 So. 2d 668, 670 (Fla. 2d D.C.A. 2007); Fla. R. Fam. P. 12.490(b)(2), 12.490(b)(3); Fla. R. Juv. P. 8.257(b)(3). 14 See Slatcoff v. Dezen, 74 So. 2d 59, 64 (Fla. 1954) (en banc) (superseded by 1972 amendment to Fla. Const. art. V); 45 Fla. Jur. 2d, References §19 (2006). See also Powell v. Weger, 97 So. 2d 617, 619-20 (Fla. 1957). 15 E.g., Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d D.C.A. 2002); Young v. Young, 816 So. 2d 1267, 1269 (Fla. 3d D.C.A. 2002). 16 Burns v. Burns, 13 So. 2d 599, 602 (Fla. 1943). See also Young v. Young, 816 So. 2d 1267, 1269 (Fla. 3d D.C.A. 2002); Pesut v. Miller, 773 So. 2d 1185, 1186 (Fla. 2d D.C.A. 2000). 17 Christ v. Christ, 939 So. 2d 256, 256 (Fla. 1st D.C.A. 2006). 18 In re: Florida Rule of Civil Procedure 1.491 (Child Support Enforcement), 521 So. 2d 118 (Fla. 1988). 19 Fla. R. Fam. P. 12.491(c). 20 Fla. R. Fam. P. 12.491(d); see also Heilman v. Heilman, 596 So. 2d 1046 (Fla. 1992). 21 Fla. R. Fam. P. 12.491(b). 22 Martinez v. Rodriguez, 927 So. 2d 93 (Fla. 3d D.C.A. 2006). 23 Hinckley v. Department of Revenue ex rel. K.A.C.H., 927 So. 2d 73 (Fla. 2d D.C.A. 2006); Fla. R. Fam. P. 12.491(e). 24 Fla. R. Fam. P. 12.490(b)(4). See also Roundtree v. Roundtree, 72 So. 2d 794 (Fla. 1954) (premature to take testimony when pleading issues still outstanding). 25 Fla. R. Fam. P. 12.490(d)(1); see also Brophy v. Ward, 74 So. 701, 702 (1917). 26 Fla. R. Fam. P. 12.490(d)(1). 27 Fla. R. Fam. P. 12.490(d)(4); Fla. R. Juv. P. 8.257(b)(3). See also Fla. R. Fam. P. 12.615(b) (contempt); Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th D.C.A. 2005). 28 Brophy v. Ward, 74 So. 701, 702 (1917). 29 Fla. R. Fam. P. 12.491(e)(1); see also Hatcher v. Davis, 798 So. 2d 765 (Fla. 2d D.C.A. 2001) (court may not allow the DOR to set court calendar). 30 Fla. R. Fam. P. 12.490(d)(2), 12.491(e)(2); Fla. R. Juv. P. 8.257(d)(1). 31 Fla. R. Fam. P. 12.490(g), 12.491(h). 32 Speight v. Clark, 914 So. 2d 498 (Fla. 2d D.C.A. 2005). 33 Fla. R. Fam. P. 12.490(d)(1); Bowers v. Roddy, 38 So. 2d 461 (Fla. 1949). 34 Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P. 8.257(d)(3). 35 Kent v. Knowles, 133 So. 315, 316 (Fla. 1931); Cepero v. Hartridge, 41 So. 192, 193 (1906). 2 190 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. 36 Martinez v. Rodriguez, 927 So. 2d 93, 96 (Fla. 3d D.C.A. 2006). Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P. 8.257(d)(3). 38 Fla. R. Fam. P. 12.490(e); Fla. R. Juv. P. 8.257(e). 39 Fla. R. Juv. P. 8.257(f). 40 Fla. R. Fam. P. 12.491(e)(4). 41 Mote v. Morton, 41 So. 607, 608 (Fla. 1906). 42 McAnespie v. McAnespie, 200 So. 2d 606, 611 (Fla. 2d D.C.A. 1967). 43 Model v. Model, 472 So. 2d 867, 868 (Fla. 3d D.C.A. 1985), disapproved on other grounds, DeClements v. DeClements, 662 So. 2d 1276 (Fla. 3d D.C.A. 1995) (en banc). 44 Feuer v. Feuer, 22 So. 2d 641, 642 (1945). 45 In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995). 46 Gregory v. Rice, 727 So. 2d 251, 254-55 (Fla. 1999); Fla. R. Fam. P. 12.491(f). 47 Fla. R. Fam. P. 12.490(f). 48 Fla. Stat. §63.65 (1949). 49 Fla. R. Juv. P. 8.257(f). 50 Whyel v. Smith, 134 So. 552, 555 (Fla. 1931); Rosen v. Wilson, 922 So. 2d 401, 402 (Fla. 4th D.C.A. 2006); but see Chisholm v.Chisholm, 538 So. 2d 961, 962 (Fla. 3d D.C.A. 1989). 51 Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002) (citing Fla. R. Civ. P. 1.090). 52 Penton v. Perez, 800 So. 2d 639, 640 (Fla. 3d D.C.A. 2001); Garcia v. Garcia, 743 So. 2d 1225 (Fla. 4th D.C.A. 1999). 53 Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002). 54 State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241 (Fla. 2d D.C.A. 1995). 55 Hinckley v. Dep’t of Revenue ex rel. K.A.C.H., 927 So. 2d 73, 75 (Fla. 2d D.C.A. 2006); Fla. R. Fam. P. 12.491(f). 56 Fla. R. Fam. P. 12.491(f). 57 State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241-42 (Fla. 2d D.C.A. 1995). 58 Fla. R. Fam. P. 12.490(g)(1); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h). 59 Fla. R. Fam. P. 12.490(g); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h). 60 Brill v. Brill, 905 So. 2d 948, 955 (Fla. 4th D.C.A. 2005); Fla. R. Fam. P. 12.490(g)(3); Fla. R. Juv. P. 8.257(g)(3); Fla. R. Fam. P. 12.491(h)(3). 61 Fla. R. Fam. P. 12.490(g)(2); Fla. R. Juv. P. 8.257(g)(1); Fla. R. Fam. P. 12.491(h)(2). 62 Cf., Kienzle v. Kienzle, 556 So. 2d 1173 (Fla. 3d D.C.A. 1990); but see Dep’t of Health and Rehab. Servs. v. Buttiglieri, 539 So. 2d 1185 (Fla. 5th D.C.A. 1989) (Sharp, J., dissenting) (magistrate denied motion for rehearing). 63 In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995). 64 Gregory v. Rice, 727 So. 2d 251, 255 (Fla. 1999). 65 Smith v. Smith, 932 So. 2d 638, 639 (Fla. 2d D.C.A. 2006); Fla. Fam. L. R. P. 12.490(f); Fla. R. Juv. P. 8.257(f). 66 Martinez v. Garcia, 575 So. 2d 1365, 1367 (Fla. 3d D.C.A. 1991); but see, e.g., Bellville v. Bellville, 763 So. 2d 1076, 1077 (Fla. 4th D.C.A. 1999) (de novo hearing on exceptions). 67 DeClements v. DeClements, 662 So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc). 68 Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc). 69 Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d D.C.A. 2006). 70 Aldred v. Romano, 58 So. 2d 436, 438 (Fla. 1952) (citing cases). 71 Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Brinkley v. Brinkley, 453 So. 2d 941, 943 (Fla. 4th D.C.A. 1984). 37 191 This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission. 72 Soud v. Hike, 56 So. 2d 462, 468 (Fla. 1952); Harmon v. Harmon, 40 So. 2d 209, 212-13 (Fla. 1949); Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006). 73 Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc); accord Frank v. Frank, 75 So. 2d 285, 285 (Fla. 1954). 74 Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc). 75 Henderson v. Henderson, 905 So. 2d 901, 903 (Fla. 2d D.C.A. 2005); DeClements v. DeClements, 662 So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc). 76 Mounce v. Mounce, 459 So. 2d 437 (Fla. 3d D.C.A. 1984); Sitomer v. Sitomer, 397 So. 2d 373, 374 (Fla. 4th D.C.A. 1981); see, e.g., Silver v. Borrelli, 584 So. 2d 1077 (Fla. 4th D.C.A. 1991) (judge can increase recommended amount of child support). 77 Sonson v. Sonson, 815 So. 2d 685, 686 (Fla. 3d D.C.A. 2002). 78 E.g., Lowe v. Lowe, 948 So. 2d 836 (Fla. 4th D.C.A. 2007) (in personam jurisdiction). 79 Sniffen v. Sniffen, 382 So. 2d 823, 824 (Fla. 4th D.C.A. 1980); Waszkowski v. Waszkowski, 367 So. 2d 1113, 1113 (Fla. 3d D.C.A. 1979). 80 See, e.g., Cohien v. Fincke, 39 So. 2d 65 (Fla. 1949). 81 Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003); Fla. R. Fam. P. 12.491(f). 82 Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003). 83 Carls v. Carls, 890 So. 2d 1135, 1138 (Fla. 2d D.C.A. 2004); see Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d D.C.A. 2006). 84 E.g., City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982) (local government); Fla. Stat. §120.68 (2006) (limited judicial review of administrative agency orders); Sheley v. Florida Parole Comm’n, 703 So. 2d 1202 (1st D.C.A. 1997, appv’d, 720 So. 2d 216 (Fla. 1998) (mandamus from Parole Commission). R. Mitchell Prugh is a general magistrate and child support enforcement hearing officer in the Seventh Circuit. Mr. Prugh has served on the Juvenile Rules Committee since 2002. This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard, editor. 192 193 Introduction: Making Child Support Orders Realistic and Enforceable Twenty-six percent of American children under the age of 18 are growing up in single parent households. An additional fifteen percent live in blended families.1 Absence of a parent is the leading cause of poverty among children; absence of a parent is also increasingly correlated to acts of juvenile delinquency. High rates of divorce, separation, and out-ofwedlock birth have transformed the setting in which children are raised. This overwhelms the courts, child support agency and the welfare system. Congress established the Federal/State/local Child Support Enforcement Program in 1975, created under Part D, Title IV of the Social Security Act (and hence referred to as the “IV-D Program”). This Federal-State partnership has been increasingly effective at collecting child support. More than 17 million children and their families received $24 billion in child support in 2006 through the help of the Child Support Enforcement Program. The Federal Office of Child Support Enforcement (OCSE) Preliminary Report for fiscal year (FY) 2006 also reports that over 1.2 million child support orders were established and 2 1.7 million paternities were established and acknowledged. State courts are inextricably intertwined with the success and perceived justice of the child support enforcement system. With powerful and largely administrative enforcement tools3 in place, research and policy debates have refocused on key decision points that appear to make a critical difference in ensuring child support is the economic linchpin to family self-sufficiency that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA or “Welfare Reform”) intended it to be. Recent research categorized a major portion of child support arrears as being owed by “dead broke,” not “dead beat,” dads.4 Considerations growing from this and similar studies include whether the all too common practice of entering default orders based on minimum orders or hypothetical earning capacity and ordered retroactively (often years) to the child’s birth is in the interest of the litigants, the child, the court or the child support enforcement system. While legally permissible, these orders are now believed to create an insurmountable roadblock to compliance. Overwhelmed by a debt that will never be paid (particularly when coupled with interest or penalty charges), the obligor abandons any attempt at payment and the IV-D program is saddled with larger arrears and poorer performance statistics. While arrears and nonpayment of support orders will always exist, the development of successful arrears-prevention policies will facilitate payment of support and help alleviate the overwhelming arrears management problem. The consequences of default orders, retroactive support, minimum obligations or attributed income policies unconnected to the realistic capacity of low-income obligors to meet child support orders are often unrealistic orders that are neither enforced nor realistically enforceable. This benchcard harnesses the realworld experiences of judges to provide a tool that will guide judicial, quasi-judicial and administrative hearing officers alike in making more nuanced decisions at the time the support order is established, avoiding a build-up of unpaid support and establishing child support that is a reliable source of income for families. The following sections examine Retroactive Support, Order Basics, Default Orders, and Child Support Guideline – Determining Income. 1 Kreider, Rose & Fields, Jason (July 2005). Living Arrangements of Children, 2001, Current Population Report, U.S. Census Bureau. Available online at http://www.census.gov/prod/2005pubs/p70-104.pdf 2 http://www.acf.hhs.gov/programs/cse/pubs/2007/preliminary_ report/#highlights 3 Examples include income withholding, Federal and State tax refund intercept, financial institution data matching (FIDM), passport denial, and license revocation 4 See, e.g., Sorensen, Elaine. Understanding Child Support Arrears, Urban Institute (2007); Sorenson, California Collectibility Study, Urban Institute; Department of Health & Human Services, Office of Inspector General, The Establishment of Child Support Orders for Low Income Non-Custodial Parents, (OEI 05-99-00390, July 2000) Retroactive Support In addition to establishing a current obligation for child and medical support, the initial order may also set that obligation retroactively, along with assessing legal costs, genetic test costs, birthing costs, fees, and a provision for late-payment charges and/or interest on any or all of the above. While almost every court makes the order retroactive to at least the date the petition for support was filed with the tribunal, States permit retroactivity for a considerably longer period – perhaps to the child’s birth.1 Courts have an interest in ensuring that a respondent does not gain an advantage or shift a financial burden of a child’s support to the custodian or the State, simply by avoiding litigation. Equally, research has shown that the longer the period of retroactivity, the less likely the parent is to pay.2 Where a noncustodial parent starts off with an order containing large arrears, he or she may view compliance as impossible and participation in the process as pointless. Such a conclusion is reasonable where the law assesses interest on the retroactive support, beginning when it is assessed. Judges also well understand the frustration of facing either a minimum payment on the retroactive support – so that the debt will never be paid over a reasonable period – or such a large sum in addition to current support that the payment will be unenforceable within consumer credit protection limits. When entering a retroactive support order, the judge should consider the State’s legal requirements and restrictions. In exercising available judicial discretion regarding the period of retroactivity, how retroactive support will be paid, and additional amounts to be charged to the obligor, the Project Advisory Group suggests the following factors be considered: RETROACTIVE SUPPORT ORDER CHECKLIST The reason for the delay in establishing the order. Determine the retroactive period based on case-specific circumstances. Did the noncustodial parent (NCP) know of the existence of the child? Did the custodial parent (CP) and NCP have an informal arrangement during which the NCP contributed directly to the support of the child? Was the delay occasioned by failure to obtain service or a lengthy processing time at the child support agency or in the court? Was the NCP actively avoiding service? Was the NCP out-of-state, in the military or incarcerated? Where not otherwise established by State law, consider articulating a policy standard so similarly situated individuals are treated equitably. Set an equitable method of repayment of retroactive support as permitted by State law. However, a periodic payment amount set in the order does not limit the IV-D agency’s right to use other enforcement remedies for qualified past due support, such as use of Federal and State tax refund offset. If allowed in your jurisdiction, determine whether and how much the NCP should be ordered to reimburse such expenses as birthing costs (in accord with guidelines) or attorney’s fees, as well as how these “add on” collections should be paid.4 For any period of retroactivity, the child support guideline must be applied. For retroactivity prior to the filing date, determine how payment of this judgment will impact the NCP’s ability to pay ongoing support. Consider appropriate bases for deviation under State law as well as the long-term effect of the amount of retroactive support on the likelihood of it being paid when setting an order involving a lowincome obligor.3 A number of States have revised their laws to reduce the period of retroactivity. For example, Texas changed its period of retroactivity from the child’s birth to a maximum of 4 years. “The longer the time for which non-custodial parents are charged retroactive support, the less likely they are to make any payment on their child support order once established.” HHS, Office of the Inspector General, The Establishment of Child Support Orders for Low Income Non-custodial Parents, p13. Available online at http://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf 3 “We know from other research that ordering arrears for periods prior to the date of filing for an order, referred to as retroactive support, contributes to arrears. In Colorado, for example, 19 percent of the arrears consisted of retroactive support. The Colorado Child Support Program estimated that the average amount paid toward retroactive support was $180 per year and that obligors who owed retroactive support would take an average of 39 years to pay off their retroactive support.” p57. [footnotes omitted] Sorensen, Elaine, Sousa, Liliana & Schaner, Simon, Assessing Child Support Arrears in Nine Large States and the Nation (The Urban Institute, 2007). Available online at http://aspe.hhs.gov/hsp/07/assessing-CS-debt/ 4 For example, in Rhode Island, birthing and interest costs are negotiable, and the Court has the discretion to stay interest charges. 1 2 Order Basics Legal questions regarding insufficiency or lack of clarity in a different State’s child support order may result in refusal to enforce, inadequate enforcement, second-guessing of terms, or long processing delays. Such issues are multiplied when the case moves from a local matter to an interstate case. The consequences of default orders, retroactive support, minimum obligations, or attributed income policies unconnected to realistic capacity of low-income obligors to meet child support orders may result in orders that are enforceable in theory but fail to ensure that ongoing child support is a reliable source of income for the custodial parent and child. After discussion, the Project Advisory Group recommends that judges consider the following checklist to ensure that all support orders are realistic and realizable. SUPPORT ORDER CHECKLIST Include written finding of basis of personal jurisdiction over obligor, particularly where order is entered by default or asserting jurisdiction over a nonresident. Recite that the requirements of the Servicemembers Civil Relief Act have been met, waived or that the respondent is not a member of the armed services. Recite due process basics to avoid later challenge, including whether a nonresident party was offered the opportunity to participate by teleconference. Include direction to pay child support through State Disbursement Unit (SDU) via income withholding and delineate either the Consumer Credit Protection Limit or the factors (another support obligation and/or amount of arrears) that will permit the child support agency or employer to correctly apply Federal and State law. Include affirmative statement that no other valid support order exists when entering new support order. Include written finding showing paternity was determined – by paternity acknowledgment, consent without genetic testing, conclusive presumption, finding after genetic testing. Include an analysis of subject matter jurisdiction when modifying (or declining to modify) the order of a sister State. Include child support guideline calculation and any finding of basis to deviate. Include medical child support (see “Determining Medical Support” worksheet in NCJFCJ’s technical assistance bulletin, Why Medical Child Support is Important—and Complex). Include basis of retroactive support and application of child support guideline to retroactive period if appropriate. Recognize the validity of pay and employment information from FPLS, without requiring independent employer verification. Include applicable interest rate or penalties on arrears, if any. Include date order terminates or factual circumstances for termination (e.g., high school graduation or change of custody). Reconcile consolidated arrears when determining which of pre-existing multiple orders controls current support. Direct both CP and NCP to update address, employment and income information. Ensure copy of order is sent timely to IV-D agency and parties, to allow for appeal or review request. Include a description of the legal basis for later modification of the order. Default Orders All State courts have the authority to issue a default order should the respondent fail to appear, provided the court has both subject matter jurisdiction and personal jurisdiction over the respondent, and has provided notice of the hearing.1 While participation of both parties is inherently fairer, when a party fails to appear after receiving proper notice, a default order may be necessary. (However, one California study found that seventy-one percent of child support debtors had at least one order set by default).2 There are two key policy issues caused by default orders. First, default orders are less likely to be paid. Second, default orders are often subject to later challenges on due process grounds, particularly when enforcement is sought in another jurisdiction. On the other hand, the State has an overriding interest in having the respondent appear at the time the order is established. For courts, respect for the judicial process is foremost. Courts may find it advantageous to review the entire order establishment process to determine the extent to which each segment promotes or undermines this interest. Courts should examine the content of the initial summons and notice. How and by whom is service made? Does the notice accommodate the needs of non-English speaking individuals? What is the time-lapse between service of the petition and notice of the hearing? Does the child support guideline’s default order standard benefit a high-income noncustodial parent (NCP)? To ensure the fairness of default orders and avoid having the order set aside later, the judge or quasi-judicial official should: • Make a finding of the basis for jurisdiction. To adjudicate paternity or establish the original support order, personal jurisdiction over the respondent is required. Although personal service may be more cumbersome and time-consuming, ensuring service is constitutionally sufficient and documented will inoculate the order against a later challenge to its validity. • Review the Uniform Interstate Family Support Act (UIFSA). Where the tribunal is asserting jurisdiction over a non-resident, all States have enacted the UIFSA. Section 201 sets out the bases for extended jurisdiction. Again, the basis for jurisdiction should be expressed in the order. For example, see Ohio’s “Personal Jurisdiction over Non-Resident” worksheet. The 2001 amendments to UIFSA clarify that long-arm jurisdiction is available to establish or enforce a support order. It may not, however, be used to acquire personal jurisdiction for the tribunal to modify another State’s order. • Consider innovative techniques to raise participation by the respondent. Many advocates believe that the litigants’ perceptions concerning the fairness, openness and comprehensiveness of child support hearings go a long way toward encouraging participation. • Confirm that the parties have been given notice and the opportunity to appear, and retain proof of service and notice in the court file. • Appoint counsel pursuant to the Servicemembers Civil Relief Act where the respondent is known or believed to be a member of the armed services.3 • Check to make sure the respondent is not incarcerated. • Look at other support cases involving the obligor and another family. • Establish the support order based on actual income of the parties, requesting available information from the child support agency obtained from the Federal Parent Locator Service (FPLS), employer verification, or the petitioner. • Limit use of default orders where paternity is at issue, unless genetic testing has already been obtained, and use all tools available (warrant/capias) to secure the respondent’s presence and participation in genetic testing. • Ensure the child support guideline contains standards for setting default orders that balance the needs and interests of lowincome families. • Consider providing a short opportunity to ask that the order be reconsidered or an opportunity to reopen. Establish follow-up procedures to document that the respondent received a copy of the order and understands its terms. Getting the Respondent/NCP to Appear Most States agree that default orders should be avoided whenever possible – and for good reason, since experiential evidence indicates that the payment compliance rate is significantly lower in default cases. Initially, a State may want to calculate the number of default orders as a percentage of all orders issued, in order to determine the extent of the problem in a particular jurisdiction. If this is in fact an issue, the beginning strategy could be the implementation of appropriate prevention techniques that focus on education and outline the negative consequences intrinsic to defaults. Additional strategies to obtain higher participation rates may focus on the format of the summons or notice to appear. e In Connecticut, the use of “YOU MUST APPEAR” language on the initial notice has increased the appearance rate to ninety percent. e In Massachusetts, the record is kept open for one year, during which timeframe the default order can be set aside based on updated NCP income information. Maryland has a similar process, as long as the NCP can provide acceptable documentation of income. While in Connecticut, the default record is kept open for four months, permitting the NCP to appear and provide updated income information. States also need to determine whether or not minimum due process requirements were met before concluding that a failure to appear should result in default – especially when service of process appears questionable. If the NCP is in default, in conjunction with the issuance of a temporary order, a bench warrant can be issued to increase the likelihood of the NCP’s attendance at a subsequent hearing to establish a final order. 1 Section 466(a)(5)(H) of the Social Security Act requies States to enact ”[p]rocedures requiring a default order to be entered in a paternity case upon a showing of service of process on the defendant and any additional showing required by State law.” 2 See, Atkinson, Janet K. & Cleveland, Barbara, A Report of the NPCL Partners for Fragile Families Peer Learning College – Managing Arrears: Child Support Enforcement and Fragile Families, p.14, (National Center for Strategic Non-Profit Planning & Community Leadership, 2001). 3 Public Law 108-189 OHIO’S PERSONAL JURISDICTION OVER NON-RESIDENT WORKSHEET4 Case ID Initiating State Responding State Obligee Name State of Residence Obligor Name State of Residence Ohio may exercise personal jurisdiction (long-arm over a non-resident in a child support or paternity proceeding because one or more of the following apply §3115.03): 1. He/she was personally served in Ohio with a summons: Service Date Service Provider 2.He/she submits to the jurisdiction of Ohio Evidence of Consent Attached 3.He/she resided in Ohio and provided prenatal expenses or support for the child: Dates Resided at Evidence of Prenatal Expenses Attached Evidence of Support Provided Attached 4. The child resides in Ohio as a result of the acts or directives of the individual: Affidavit Attached 5.He/she engaged in sexual intercourse in Ohio and the child may have been conceived by that act of intercourse: On or about date Child’s DOB Full Term Premature 6.He /she registered in the putative father registry. Evidence Attached 7. There is another basis for Ohio to exercise personal jurisdiction over the individual: Explain Ohio may obtain jurisdiction but elects to use the two-state process because: Explain There is no basis for jurisdiction. UIFSA petition initiated to: Prepared By Date if a Meritorious defense exists. A stay of at least 90 days must be Servicemembers Civil Relief Act5 granted. In addition, the request for a stay does not constitute an Effective December 19, 2003, Congress replaced the Soldier’s and Sailor’s Civil Relief Act with the Servicemembers Civil Relief Act (SCRA), 50 USC App. §§501 to 596. The new law makes substantial changes in how paternity and child support cases involving a member of the armed forces are to be handled by private attorneys and state child support (IV-D) agencies. Some courts are requiring an Affidavit of Non-Military Service in all cases before entering a default order in child support and paternity cases. For military personnel stationed outside the tribunal’s jurisdiction, courts may consider use of teleconferenced hearings to avoid delays. Among the major changes are: • Coverage. In addition to members of the traditional armed forces, reservists and members of the National Guard who are called to active duty for more than 30 days are now covered by the SCRA. Also covered are American citizens who are serving in the armed forces of another country if that nation is allied with the United States in the prosecution of a war or military action. • Scope. The old law applied only to court proceedings. The new law covers administrative proceedings as well. It does this by defining a court as “a court or an administrative agency of the United States or of any State.” • Default Orders. When seeking the entry of a default order against a servicemember, the tribunal (court or administrative agency) may not enter a judgment until after it appoints an attorney to represent the defendant. SCRA §201 requires an automatic stay of proceedings be granted in default proceedings if the defendant is in the military service and upon application of counsel or on the court’s own motion, if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant, or after defense counsel has been unable to contact the defendant or otherwise determine • • • • 4 appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense. Stay of proceedings. At any stage before final judgment, the court (on its own motion) can grant a stay of the proceedings. Alternatively, the servicemember can apply for a stay. The application must include: 1) a letter from the servicemember setting forth why his/her current military duties prevent an appearance and stating a date when he/she will be available; and 2) a letter from the servicemember’s commanding officer stating that the servicemember’s current duties prevent an appearance and that leave is not authorized. If proper documentation is provided, a stay of at least 90 days must be granted. In addition, the request for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense. Continuing Stay. A servicemember may ask for an additional stay by submitting the same type of documentation required for the initial stay (see above). If the court or administrative agency declines to grant an additional stay, it must appoint an attorney to represent the servicemember’s interests. Waiver of Rights. A servicemember may waive his/her SCRA rights. The waiver must be in writing. Representation. A servicemember who cannot appear and does not wish to waive his/her rights can also appear through a representative. This person can be an attorney or an individual possessing the power of attorney. HHS/ACF/OCSE, Essentials for Attorneys in Child Support Enforcement, 2002, 3rd Edition, page 405. The handbook itself may be found on the OCSE website at http://www.acf.hhs.gov/programs/cse/pubs/2002/reports/essentials/ 5 For more information, see DCL-04-26 at http://www.acf.hhs.gov/programs/cse/pol/DCL/2004/dcl-04-26.htm Child Support Guidelines – Determining Income Every state must have and use numeric child support guidelines as the presumptive correct amount of child support. These guidelines apply to the calculation of all child support orders in the state, not just IV-D cases. The hardest part of establishing a support order that is real and realizable is not the calculation using guidelines. Regardless of what type of formula a State has enacted, child support guidelines have simplified – and made more equitable – the process of calculating the proper dollar amount of support. Complicating issues include the variables the guidelines allow or, absent variables, the determination of when and how to deviate from guidelines. These complex issues, such as multiple families, self-employment, health care costs, private school and higher education costs, and post-emancipation support, may require a broader analysis than is available under State child support guidelines. It is important to note that there is no Federal definition of income for use with child support guidelines. For the purpose of income withholding and other expedited processes, “income” means any periodic form of payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest.1 State definitions tend to be broad and include resources, such as salary and wages; commissions; bonuses; tips and perquisites (perks); rental income; estate and trust income; royalties; interest, dividends and annuities; self-employment earnings; alimony and other unearned income; in-kind compensation or non-cash fringe benefits; and lottery winnings.2 There are several important issues related to an accurate determination of income. Decision-makers should consider: • the State-specific definition of income and whether net income or gross income is used; • how the State treats business income and expenses, income from overtime or second jobs, as well as benefits, perks, and in-kind compensation; and • the requirements for imputing income. Income information from the Child Support Enforcement Agency The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (also known as “Welfare Reform”) was signed into law on August 22, 1996. One key provision of PRWORA is that all States must have a program to collect information about newly hired employees. Under new hire reporting, employers must report information about newly hired employees to a State Directory of New Hires (SDNH). States match new hire reports against their child support records to locate parents, establish orders, or modify or enforce existing orders. With implementation of the SDNH, the child support agency can quickly locate noncustodial parents employed within the State. However, one-third of all child support cases involve parents living in different States. To address the large number of cases where the parent who owes child support is employed in another state, PRWORA called for the establishment of the National Directory of New Hires (NDNH). The NDNH is a major component of the Federal Parent Locator Service (FPLS). The NDNH is a national repository of employment, unemployment insurance, and quarterly wage information. The data residing in the NDNH includes: records from the SDNH; quarterly wage and unemployment insurance data from the State Employment Security Agencies (SESAs); and new hire and quarterly wage data from federal agencies. Employers have up to 20 days from the date of hire – depending on state law – to report the following information for a newly hired employee to their SDNH: • Name, address and Social Security Number (SSN) of employee • Name, address and Federal Employer Identification Number (FEIN) of employer • Any State-specific required data The NDNH interacts with the Federal Case Registry (FCR), another key component of the FPLS. The FCR contains information about persons in all child support cases being handled by State child support agencies, and in all support orders issued or modified after October 1, 1998. The FPLS automatically and regularly compares the data in the NDNH against child support cases and order data in the FCR. In addition, States can make a locate request to the FPLS, which includes an NDNH search. When there is a match, the FPLS provides the new hire, quarterly wage, or unemployment information concerning the custodial or noncustodial parent to appropriate States. Those States use the information to establish initial child support obligations, or enforce (through income withholding) existing orders. Social Security Numbers (SSN) are key to the information stored in the FPLS. All SSNs received through new hire, quarterly wage and unemployment insurance reporting are verified through the Social Security Administration before being placed on the NDNH. Records containing unverified SSNs are not posted to the NDNH. Without a valid SSN, information regarding a participant cannot be obtained nor passed to another State. By law, access to the FPLS is limited.3 Since the information is contained in an official record, court rules should permit admission of this employment and income information without an independent verification from the employer. Imputing Income to the Voluntarily Unemployed or Underemployed4 Most States allow a decision-maker to impute income when there is a finding that a parent is voluntarily unemployed or underemployed. It is generally permissible to attribute income at the level that the parent would have earned if fully employed – that is, at the parent’s earning potential or capacity. Judges or administrative decision-makers determine earning capacity by looking at the party’s work history, age, educational background, and skills. It also may be appropriate to examine location-specific issues. Some States address the imputation of income in their child support guidelines. These States typically set out a minimum wage rate or annual salary for the purpose of attributing income. Some tribunals regularly impute minimum wage without a statutory directive. An exception may exist for a parent who is unemployed or underemployed to care for a young child. For instance, Maine does not impute income to the custodial parent of a child younger than age three, and it grants discretion to the tribunal in cases involving the custodial parent of a child between the ages of three and twelve.5 In Maryland, income is not attributed to the custodial parent of a child under the age of two.6 What to Do When the Obligor is Incarcerated? By the end of 2005, nearly 1.5 million individuals were incarcerated in Federal or State prisons. About half of incarcerated parents (estimated to be over 800,000 mothers and fathers) have open child support cases.7 A dilemma for judges is how to handle the setting of child support orders when the obligor is incarcerated. For many States, an individual who commits a crime, is caught and either incarcerated or whose criminal record creates an additional barrier to employment, is considered to be voluntarily unemployed or underemployed. As such, the fact that they have no income is irrelevant for the purpose of establishing a child support order. Attributed income is based on their earnings or earning capacity before incarceration – often considered to be full-time employment at the State’s minimum or even median wage, despite a recognition that a person in prison has virtually no ability to earn income. The result is no payment and accruing debt that is likely to never be paid, particularly in States where interest applies to child support arrears (including retroactive support). There is no simple answer. Some policymakers argue that to either set no obligation, or suspend an order during the obligor’s incarceration, rewards unlawful conduct at the expense of the child – or the custodian or taxpayer supporting the child. Others argue that most of the debt accrued under such orders is uncollectible and unrelated to the obligor’s ability to pay. These policymakers argue that it is better to focus on ensuring a reasonable amount of support is paid on an ongoing basis after release and to foster both legal employment and a positive relationship between the noncustodial parent and child.8 To the extent State law is silent or ambiguous, judges should establish policies for setting support when an obligor is incarcerated, determining whether incarceration is a basis for modification of an existing support order, and addressing payment of arrears accrued during incarceration. Medical Support and Guidelines9 Tribunals usually will encounter four types of medical expenses: health insurance coverage; payments for the uninsured or unreimbursed portions of regular medical expenses (i.e., deductibles, co-payments, or prescriptions); extraordinary medical expenses (i.e., non-routine expenses, such as those incurred due to accident, infirmity, or disability); and elective medical procedures (i.e., orthodontia or cosmetic surgery). Because of recent legislation regarding medical support, State and tribunal obligations in this area have changed dramatically.10 Federal regulations require State guidelines to provide for the health needs of children through “health insurance or other means.”11 Further, in public assistance cases, State child support enforcement agencies must seek health insurance, if it is available to the NCP at a reasonable cost.12 Thus, the issue of the child’s health needs must be considered in the context of child support establishment or modification in the IV-D context. Many guidelines address basic health insurance. A number of States give a credit, equal to the premium amount, to the parent providing the medical insurance coverage. In some States, the actual cost of the premium is deducted from the income of the paying parent before support is calculated. Other States list the insurance cost as an add-on to the basic support amount, and then they apportion the cost between the parents in the same percentages as the base support or equally. There are a variety of views regarding the treatment of regular, but uninsured or unreimbursed, medical expenses. Some States have factored a portion of these costs into their guidelines. Another approach is to add the uninsured or unreimbursed medical expenses to the basic award, and then apportion that amount between the parents on the same basis as the support obligation. Other States require these costs to be shared equally by the parties. More and more, States are addressing medical expenses in cash medical awards, in addition to child support.13 Extraordinary medical expenses can be treated as an add-on to the basic child support amount or as a basis for deviation. Almost half of the States add extraordinary medical expenses to the basic child support obligation, and then divide them between the parents in a proportionate share. A slightly smaller number list extraordinary medical expenses as a reason to deviate from the guidelines. Several States do not specify how such costs should be handled. Also note that Ohio requires its tribunals to issue a separate order when cases involve extraordinary medical expenses.14 Whatever the State’s approach, the fundamental question is what constitutes an extraordinary expense. Several States define extraordinary by using a dollar amount – either a specific sum per illness or a threshold that a child’s annual expenses must exceed, such as a percentage of the total income or support order. In other States, an expense is extraordinary if it is connected with a permanent, chronic, or recurring illness; a mental health matter; or extended treatment, such as orthodontic care or physical therapy. Federal law states that deviation is warranted when the application of the child support guidelines would render either an inequitable or inappropriate result in a particular case.15 Ultimately, the decision-maker must determine whether the best interest of the child, and equity, would be served by entering an order that varies from the support guidelines. 1 42 U.S.C. §666 (b)(8) Office of Child Support Enforcement, (1996) Evaluation of Child Support Guidelines, p. 3-13. Office of Child Support Enforcement, Essentials for Attorneys in Child Support Enforcement 3rd Edition, Exhibit 5-1, Request for FPLS Information provides a chart showing authorized users and authorized purposes to access the FPLS data. Available online at http://www.acf.hhs.gov/programs/cse/pubs/2002/reports/ essentials/c5.html 4 See discussion of imputed income and minimum orders in The Establishment of Child Support Orders for Low Income Non-custodial Parents HHS, Office of Inspector General OEI-05-99-00390 http://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf 5 Me. Rev. Stat. Ann. tit. 19, §393 (5)(D) (West 1992). 6 Ann. Code of Md, Family Law Article §12-204 (b)(2)(ii) 7 Office of Child Support Enforcement, Incarceration, Reentry and Child Support Issues: National and State Research Overview, 2006; Council of State Governments, (2005). Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community. 8 See the policy discussion in Turetsky, Vicki, Staying in Jobs and Out of the Underground: Child Support Policies that Encourage Legitimate Work (Center for Law and Social Policy, 2007). Available online at http://www.clasp.org/publications/cs_brief_2.pdf 9 NCJFCJ is issuing a technical assistance bulletin “Why Medical Child Support is Important – and Complex,” in 2008 under this SIP grant. 10 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the Balanced Budget Act of 1997, the Child Support Performance and Incentive Act of 1998, and the Deficit Reduction Act of 2005 all made significant changes to the area of medical support. 11 45 C.F.R. §302.56(c)(3). 12 45 C.F.R. §303.31(b)(2)(i). 13 Of course, the treatment of routine, uninsured or unreimbursed expenses may be left to the discretion of the decision-maker. New York handles these costs in such a manner. In Steel v. Steel, 579 N.Y.S. 2d 531 (N.Y. Sup. Ct. 1990) the court found it appropriate for the NCP to pay 100% of the children’s reasonable and necessary medical expenses because his income was substantially higher than that of the custodian. 14 Ohio Rev. Code Ann. §3113.21.5 (5)(f) (Page 1993). 15 42 U.S.C. §667(b)(2) A full discussion of State child support guidelines and bases for deviation may be found in Laura W. Morgan, Child Support Guidelines: Interpretation and Application (Aspen Publishers, 2007), and Chapter 4 in particular. 2 3 Child Support and the Judiciary Income Withholding for Support and the State Disbursement Unit What is an IWO? Are there exceptions to income withholding? Commonly known as an income withholding order or IWO, the Income Withholding for Support is the standard form approved by the Office of Management and Budget that must be used by all entities to direct employers to withhold income for child support payments. Yes, section 466(a)(8)(B)(i) of the Social Security Act allows two exceptions as stated below: What is the SDU? The State Disbursement Unit (SDU) is a centralized collection and disbursement unit for child support payments from employers, income withholders, and others. An SDU is responsible for: • • • • Receiving and distributing all payments Accurately identifying payments Promptly disbursing payments to custodial parents Furnishing payment records to any parent or to the court Why were standard forms and payment directions developed? Under provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress required the use of a standard withholding process to increase child support collections for all families, promote selfsufficiency for low-income families, and reduce the burden on employers. States were also required to establish and maintain SDUs to receive child support payments from employers and other sources (1) for all IV-D cases and (2) for all non-IV-D cases with support orders initially issued on or after January 1, 1994 payable through income withholding. How is income withholding ordered? When entering a child support order, judicial and administrative officials must enter an IWO. Some states use the following language in the child support order: “Reference is hereby made to a separate income withholding order, the entry of which is required of this (Court) (Agency) by law and specifically incorporated herein as part of this (Court’s) (Agency’s) order in this case.” “The income of a noncustodial parent shall be subject to withholding, regardless of whether support payments by such parent are in arrears, on the effective date of the order; except that such income shall not be subject to withholding under this clause in any case where (I) one of the parties demonstrates, and the court (or administrative process) finds, that there is good cause not to require immediate income withholding, or (II) a written agreement is reached between both parties which provides for an alternative arrangement.” Must I use the OMB-approved IWO form? Yes, the IWO form has been required since August 22, 1996, for orders issued or modified on or after January 1, 1994. The revised IWO form, instructions, and process flow was published on May 16, 2011. However, other requirements concerning the revised IWO form became effective May 31, 2011 [see AT-11-05]: All IWOs that order an employer to withhold payments, including those issued by courts and private attorneys, must direct payments to the SDU. Employers/income withholders are instructed to return the IWO to the sender if payment is not directed to the SDU. All entities or individuals authorized under state law to issue income withholding orders to employers must use the OMB-approved IWO form. Effective May 31, 2012, any IWO received that is not on the OMB-approved IWO form will be returned to the sender by the employer. A fillable version of the form is available at: www.acf.hhs.gov/programs/cse/forms/OMB-0970-0154.pdf. Additional Web Resources • Section 466 of the Social Security Act • Action Transmittal 11-05 (AT-11-05) • 45 CFR 303.100, Procedures for income withholding • Intergovernmental Referral Guide containing each state’s IWO procedures • State Contact and Program Information Matrices for state-specific information and contacts for questions • Income Withholding, choose Private Sector Employers or Federal Agency Employers to get information on processing the IWO notice and calculating withholding amounts, with examples U.S. Department of Health and Human Services Administration for Children and Families / Office of Child Support Enforcement Prepared April 2012 Child Support Hearing Officer Colloquy Thank you for being here. We are here today to hear DOR child support cases. Parents have a moral and legal obligation to support their children. It‟s not the other parent requiring you to pay child support – it‟s the law. The question is not what happens to you if you have to pay child support, but what happens to your child if you don‟t pay. The court and the Department of Revenue attorneys don‟t make up the numbers. The law of Florida has guidelines, and we basically determine your income, your work history and the number of children involved and then plug those numbers into the chart to give us the amount of child support the state requires you to pay. The law says we cannot put “0” in the box unless you are disabled and this disability has been verified by a doctor. The lowest amount we can set is the amount for full-time minimum wage. If you aren‟t working, you‟ll need to get a job so that you can support your children. We are only here to discuss numbers and do the math. We don‟t need to know if you like the other person or if you are getting along with them. We do not do custody or visitation. If you have an issue that deals with something else besides child support, that is handled in a different court and can‟t be handled today. We only deal with child support issues in this court. This is not a court like you see on T.V. and we don‟t need any drama. We‟re only here to do the math and arrive at the amount of child support that is due. Please be respectful and don‟t interrupt each other. 194 There has to be a court ordered written time sharing plan before I can account for the time sharing in the child support calculation. We are recording these hearings. At the end of the hearing, you can ask questions. In a couple of weeks, you‟ll get an order that describes what happened today. The state is entitled to court costs. In most cases, I will allow you up to one year to pay those costs. I have read the files and know the names of your children and the other information in the documents. There are three basic types of cases that will be heard today so here is what you can expect: o Petition to establish paternity – The father‟s name is not on the birth certificate and has not been adjudicated to be the father of the child. Unless the father admits freely and voluntarily that he is the father, then the father is entitled to DNA testing by law. Mothers, please don‟t be offended. You may know he is the father, but the law allows the test. You‟ll get a notice in the mail that tells you where and when to take the child for the swab test. o Petition for support: that means the father is already on the birth certificate or has already been found to be the father by law. In these types of cases, the father is NOT entitled to DNA, and no DNA will be ordered. What we‟re going to do in these cases is discuss income, plug those numbers into the guidelines, and come up with the child support amount. o Contempt – In these cases, the state has filed a motion and we are here to find out why you haven‟t been making payments. We want to get you back on track. When a child turns 18, you are not automatically done with child support, you have to keep paying until the total amount you 195 owe is paid, including any arrears. In the last 2 years, the Department of Revenue has made an increased effort to collect child support, and because of this, if you‟re not paying, you‟re going to be in court more often and you could end up in jail for non-payment. If you are ordered to jail today, the bailiff will show you where to sit. 196 Petition for Paternity Hearing Checklist Swear in the parties. Determine if the parties were served. If so, find that parents were properly served and noticed. If the father was served and did not appear, make a finding that the father was properly served and adjudicate paternity by default. If the father appears and doesn‟t admit paternity, order DNA testing. Explain that if the father doesn‟t comply, the court can adjudicate the person as the father. If the father doesn‟t comply with order to test, issue an Order to Show Cause. If the DNA is positive or the father freely and voluntarily admits that he is the father, adjudicate the man as the father of the child. If the father is in jail, don‟t set child support until he is released. Go to Child Support Hearing Checklist. 197 Petition for Superseding Administrative Order Hearing Checklist Swear in parties. Determine if parties were served. If so, find that parent was properly served and noticed. Determine if paternity is an issue. If so, see Paternity checklist. Determine monthly income for each party. Determine health insurance. Determine day care/after school costs. Make finding if cost is reasonable. Determine obligation/monthly base support. Order monthly base salary. Order retroactive amount, if any. Order Income Deduction Order (IDO). Order split in medical expenses beyond insurance. Order court costs. Note: With an administrative support order, the Department of Revenue must file a petition to enforce the order and that must be served before this court has jurisdiction. 198 Petition for Support Hearing Checklist Swear in parties. If an attorney represents a party, ask them to announce their appearance on the record. Determine if parties were served. If so, find that parent was properly served and noticed. Determine monthly income for each party. Check with the Department of Revenue to see if record of income exists. Input minimum wage (or other) if necessary. o In order to impute income higher than what the respondent is earning, the court must find that the parent owing the duty to support: 1) has the actual ability to earn more than currently earning and 2) that the respondent is deliberately refusing to work at a the higher capacity to avoid the support obligation. Stebbins v. Stebbins, 754 So.2d 903 (2000). Make finding of monthly income. Determine current health insurance and who is responsible for paying. Determine day care/after school costs and who is responsible for paying. Make finding if cost is reasonable. Determine obligation/monthly base support. Order monthly base support and payment to Florida Disbursement Unit. Give Speed credit if father requests it and has other children in the home. Note: visitation must be court-ordered before parents get credit for overnight visits. Order retroactive amount. Give the father credit for father‟s past payments, if any. Order Income Deduction Order (IDO). Order party to provide medical insurance if reasonably available. Order split in medical expenses beyond insurance. 199 Make sure that there is a termination date as each child turns 18, and the order specifies a drop down to the next amount of child support. Verify that DOR has costs. Order court costs. 200 Petition to Modify Child Support Hearing Checklist Swear in the parties. Determine if parties were personally served with the petition to modify. (Can‟t be done with a motion and certificate of service. Must be personal service.) If so, find that parent was properly served and noticed. Determine if parties have filed the mandatory financial discovery. The party bringing the petition has the burden of proof. Child support can be modified if: o when in the best interests of the child o when the child reaches majority (can extend to allow high school graduation) o a child is emancipated, marries, joins the military or dies or o when there is a substantial change in circumstances. Florida Statutes. §61.13(1)(a), The change in circumstance must be significant, material, involuntary and permanent in nature. The petioner and respondent must file financial discovery that includes: (Rule 12.285 Fla. Fam. L.R.P.) o financial affidavit o past year tax returns o IRS forms W-2, 1099 and K-1 o Pay stubs or other evidence of earned income for past 3 months. o A statement identifying amount and source of any other income. Look at previous jobs and income and compare to current amounts. Analysis is the same as when setting original child support obligation. The Department of Revenue will ask questions about income. If no proof of income is available, look at current income by testimony and AWI. 201 Impute income if necessary. Adjudicate arrears, determine repayment. Add arrears payment to regular monthly amount. Issue amended income deduction order. Do health insurance breakdown to include in the order. 202 Motion for Contempt Hearing Checklist NOTE: You must give the parties the “key to the jail.” Swear in Department of Revenue representative and clerk, then parties. Determine if parties were served/noticed. The father has a continuing obligation to update his address from the initial child support hearing. If the father fails to attend the hearing after being served, the court can hold him in contempt and/or issue a writ of bodily attachment. Spencer v. Spencer, 311 SO.2d 822 (Fla. 3d DCA 1975). The court can set a reasonable purge amount and direct that upon arrest, contemnor is to be brought before the court w/in 48 hours for a hearing to determine whether or not he can pay, and if so, if failure to pay was willful. If the father is not in court, see if AWI has any proof of income. The burden of proof is on petitioner (preponderance of the evidence) that: o There is a prior court order requiring child support payments. Put payment history on record. The clerk can testify as to the amounts. o The respondent has failed to make timely child support payments (not court costs or fees). o Then burden shifts to respondent to show that he no longer has the ability to pay – not willful non-payment. o MUST establish the respondent has the present ability to pay and willful refusal to pay. Gregory v. Rice, 727 So.2d 251(1999). Make detailed fact finding of present circumstances to determine purge amount. Inquire as to jobs, all assets, cash and current conditions. If sentenced to jail, the party must have the ability to purge. Find in contempt of court for failing to comply with order of court, or if not then in compliance and issue compliance order. If in contempt, the court can either order incarceration or give the respondent 30 days to come up with the money and comply. If not paid in 30 days, the court can also order a writ and purge. 203 Determine if the respondent has any money with him. He/she can make a direct payment in court. Establish amount of arrears and form of payment. Adjudicate arrears. Verify amount and order court costs. If the respondent fails to appear, there is a presumption that the respondent can pay. 204 205
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