Everyday in Florida parents are subject to civil sanctions for failure to pay court ordered child support. It is common that a General Magistrate or Circuit Court Judge will order sanctions despite the fact that the parent who has been ordered to pay is not able. Sanctions often include driver's license suspension or incarceration. The fact is, and the law is, that if a parent who is ordered to pay child support does not have the ability to pay -- sanctions cannot be imposed. The inability to pay child support is not contempt of court. Contempt of court, must be willful -- not unable. Read the following appellate case. It's not long, and not hard to follow, and it may just keep you driving and out of jail.
LARSEN v. LARSEN No. 4D04-773.
901 So.2d 327 (2005)
John Edward LARSEN, Appellant,
v.
Eva LARSEN, Appellee.
District Court of Appeal of Florida, Fourth District.
May 4, 2005.
WARNER, J.
Appellant challenges an order authorizing the suspension of his
driver's license for nonpayment of child support with a purge provision
of $2,500. He claims that he does not have the present ability to pay
the purge amount. Because the suspension of a driver's license
constitutes a civil sanction, the court must provide the contemnor with
the opportunity to purge the sanction, and it must determine that the
contemnor has the present ability to pay the purge amount.
Gregory v. Rice, 727 So.2d 251,
253-54 (Fla.1999). Not only did the trial court fail to make such a
finding, nothing in the record would support a finding that appellant
has the ability to pay that amount. We therefore reverse.
Appellant has accumulated substantial arrearages on alimony and child
support obligations. He has instituted several modification proceedings
since the dissolution of marriage, mainly because he lost his job as a
pilot. In a mediated settlement in July 2002, the parties agreed to an
arrearage, and appellant agreed that should he miss one payment, the
Support Enforcement Division would be entitled to seek automatic
suspension of his driver's license.
Subsequent to the agreement, appellant again moved for modification,
and SED moved for contempt and sought to suspend appellant's license for
nonpayment of support. The contempt motion was referred to a general
master who recommended holding the father in contempt and requiring a
purge amount of $1,638.25. The trial court adopted the general master's
recommendations, and appellant filed a petition for writ of prohibition
in this court, which we treated as a non-final appeal. We reversed the
order of contempt, determining, in part, that the order lacked a finding
that appellant had the present ability to comply with the purge amount,
and failed to provide a factual basis for such finding as required by
Florida Family Law Rule of Procedure 12.615(e).
See Larsen v. Larsen, 854 So.2d 293 (Fla. 4th DCA 2003).
While his petition for modification was pending, appellant received
notice of SED's intent to file for suspension pursuant to section
61.13016, Florida Statutes (2003), and moved for a case status
conference as well as a hearing on his motion to contest the suspension.
At the hearing, the court stated that the suspension of the driver's
license was not a contempt sanction. The court denied appellant's
objections to the impending suspension, but imposed a purge provision of
$2,500. Upon receipt of the purge amount, SED was directed to abate the
proceedings for license and motor vehicle registration suspension until
further order of the court. Appellant's license was suspended after he
failed to pay the purge amount.
Section 61.13016 provides that an obligor who has been given notice
of the intent to suspend his or her driver's license may petition the
court to contest the delinquency action. § 61.13016(1)(c)1.c. The
obligor may contest the notice by showing a mistake of fact as to the
delinquency or the obligor's identity. § 61.13016(3). The statute does
not contain language excusing the suspension for inability to pay.
However, this case is controlled by expansive language
1 in
Gregory v. Rice, 727 So.2d at 254:
Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted.
(Emphasis added).
Gregory also reconfirmed the principles of
Bowen v. Bowen, 471 So.2d 1274
(Fla.1985), that the court must find a present ability to pay the purge
amount in order to enter a civil sanction. 727 So.2d at 253-54.
Therefore, the sanction of driver's license suspension must be considered a contempt sanction under Gregory
for which the court must find a present ability to pay any purge amount
set. Here, the court made no such finding. Thus, the order authorizing
the suspension must be reversed.
Appellee argues that appellant agreed to the automatic suspension of
his license should he fall behind in support payments. However, no
agreement was made as to the terms of any purge provision. Without a
purge provision, the coercive sanction becomes a criminal contempt
sanction, requiring the due process protections of a criminal
proceeding. See Bowen, 471 So.2d at 1277.
We recognize that this opinion may cause considerable uncertainty in
the use of driver's license and other license suspensions in child
support proceedings without the setting of a purge amount in accordance
with the dictates of Bowen. However, we are bound by the clear language of Gregory.
Reversed and remanded for further proceedings.
FARMER, C.J., and GROSS, J., concur.
