The Disconnected Logic of Child Support Enforcement Sanctions in Florida

Non-payment of child support could result in driver's license suspension or incarceration. Non-payment of child support could result in driver's license suspension or incarceration.

I wrote that twice to drive home the logical disconnect that statement implies. If the payor is blithely ignoring his (or her) responsibilities and has plenty of money to fulfill those obligations -- fine by me, take his license and lock him up! And, yes, it is usually a him, only sometimes a her, that is the payor.

The Florida Department of Revenue orders child support through an administrative process, and also enforces those orders. One of the problems is that the ordered amount is often not based on both parties' full financial information. The parents are frequently unwed and low income. A common scenario is that a young couple cohabits and has a child, then breaks up. The father may or may not be on the child's birth certificate. After the break up, the mother contacts the Department of Revenue (DOR) and requests assistance with child support. The father is personally served with a DOR complaint for child support. He frequently does not answer the complaint at all. Most of the time he appears at the hearing, believing that an order for timesharing will be rendered at the same time. The mother may have refused to let the father see the child unless he pays child support.

So the father goes to the hearing, willing to pay child support, and hoping to be able to see his child on a regular basis. At the hearing, the magistrate asks the father how much money he earns and requests to see his pay statements for the past three months. The mother's income is often not taken into account at all. The father is then ordered to pay child support based solely on those three months' income.

Frequently, no consideration is given to other factors such as which parent is paying for daycare or medical insurance for the child. The father asks, what about me seeing my child. The magistrate may tell him politely that this hearing is only about child support. Or the magistrate may tell him rather rudely that he needs to pay his child support and file for shared custody in family court. The father frequently does not realize that the DOR complaint for child support includes retroactive support for up to 24 months. The complaint may actually request retroactive support dating from the child's birth, despite the fact that per statute, only 24 months retroactive support may be ordered. If the father does not make an argument, he may be ordered to pay 24 month retroactive support even though he was living with the mother and the child up until the previous month and supporting all of them. It is not fair. And the father comes out of that hearing with his head spinning, having just been ordered to pay child support and without any order allowing him to see his child. And the father may automatically be several thousand dollars in debt because the retroactive support was ordered, he is below zero before he begins.

The father is given no information about how to go about obtaining an order for timesharing with his child. His wages are garnished for support. The mother may or may not let him see the child. The father seeing his child is solely depending on the mother's whim.

As time goes by, the father changes jobs, and the wage garnishment is not placed on his new job. The garnishment is supposed to be automatically put into effect on his new job, but the DOR is an absurdly inefficient entity, and that detail is routinely left undone. That detail, the DOR neglecting to put the income deduction into place on the payor's next job is often the beginning of a nightmare for the father.

The mother, not receiving anything on her child support debit card, contacts the DOR and requests enforcement. In theory, it isn't necessary for her to contact the DOR, they will enforce automatically ... but we've already seen how that goes. So she calls, and calls, and finally gets the DOR to begin enforcement. Child support orders processed through the Department of Revenue are called Title IV-D child support orders.

When a Florida court enters a Title IV-D child support order (or when such an order from another state is properly registered in Florida or a non-Title IV-D case is referred to the Florida Department of Revenue for enforcement), the Florida Department of Revenue can take a variety of steps and measures to encourage the obligor parent to pay the child support amount owed. Although generally the Florida Department of Revenue (DOR) attempts to secure voluntary compliance with Title IV-D orders, the DOR can take aggressive measures if other methods at securing voluntary payment have failed and/or if it is believed such measures will not be fruitful.

Measures that the DOR has taken to enforce child support can include:

• Mailing notices to the Payor informing him or her of the past-due obligations (this is usually the first step at attempting to secure voluntary compliance);

• Arranging a face-to-face meeting between the DOR and the Payor to attempt and negotiate a plan to resolve the outstanding child support obligation;

• Suspending the Payor's professional or business license(s), his or her hunting and/or fishing license, and/or the Payor’s driver’s license until he or she begins making payments and/or arranges to pay the past-due obligation;

• Denying the Payor's request to renew his or her passport;

• Garnishing/ levying bank accounts belonging to the Payor;

• Sending withholding orders to the Payor’s employer directing that employer to withhold a certain amount from the Payor’s paycheck and remit that amount directly to the DOR;

• Intercepting federal or state income tax refunds or intercepting Florida lottery winnings (if those winnings exceed $600);

• Deducting amounts owed for child support from state benefits like worker’s compensation benefits or reemployment benefits;

• Placing a lien on any motor vehicle and/or boat owned by the Payor;

• Reporting the delinquent child support obligation on the Payor’s credit reports; and/or

• Filing a lawsuit against the Payor. This lawsuit could result in the Payor being found in contempt of court. Such a finding can result in the Payor being incarcerated in jail until he or she pays the outstanding amount or makes acceptable arrangements to pay the amount.

The absurdity is real. All of the above measures, except for incarceration, are considered administrative sanctions to coerce the Payor into paying the child support that he owes; and assumes that the Payor has the ability to pay. The most used sanction by far is suspension of the Payor's driver's license. Most people depend on having transportation to stay employed. There are few parts of Florida where the public transportation is adequate so that a vehicle is not needed to get back and forth to work. Take away the license - take away the job. Or, for the desperate few, who will drive despite a having a suspended license, the risk of incarceration for driving on a suspended license is an everyday reality. How is the Payor supposed to pay when he is not able to maintain employment because he has no driver's license?

Incarceration is even more absurd. If its tough to pay child support with no driver's license, it is nearly impossibly while incarcerated. Without a money tree or a generous family member, the Payor continues to fall farther and farther behind. And the mother in all of this, the mother just wants child support, she does not necessarily want her baby daddy in jail, what good can come of that?

Civil Sanctions for Failure to Pay Child Support

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 language¹ 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.

FootNotes

1. The language is expansive because International Union v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), discusses only civil fines and incarceration. It never mentions other civil sanctions.