Contempt of Court/Penalties for Non-Payment of Child Support or Alimony

Can a court order incarceration as a penalty for contempt of continuous refusal to pay child support or alimony?   What other penalties are avaialble for non-payment of support?

A Court can enter a civil order of contempt and impose incarceration as a penalty for non-payment of child support and alimony, where evidence shows the payor has a present financial ability to comply with the ordered payments. Owens v. Owens, 578 So.2d 444 (Fla. 1^st DCA, 1991). 

Incarceration cannot be used as a means to seek compliance with a court order when the contemnor does not have the ability to purge himself of contempt. However, the court does have other means available to obtain compliance.

If, for example, the payor has willfully neglected his support obligations, but no longer has a present ability to pay because he is unemployed, the court may direct him to seek employment through Florida State Employment Services and to report weekly until employment is secured, in addition to requesting the employment service to periodically report to the court on the status of his job search.

If the party is employed but presently lacks funds or assets, the court may issue a writ directing his employer to garnish the party's salary in order to satisfy the alimony or child support obligations in accordance with F.S.A. § 61.12, or may enter an income deduction order for payment of child support or alimony, pursuant to F.S.A. § 61.081 or § 61.1301.  CHILD SUPPORT, FACS FL-CLE 5-1.

A court may also suspend a person’s driver’s license and/or professional license.  The Title IV-D agency may place a lien for unpaid child support over $600 on motor vehicles or vessels owned by the delinquent obligor.  The Title IV-D agency may intercept federal income tax refunds to obtain payment of past due child support.

Also, unpaid alimony and child support payments under a preexisting order are vested and the obligee has a right to a judgment for arrearages. Dept. of Revenue ex rel. King v. Blocker, 806 So.2d 607 (Fla. 4th DCA 2002); Milopoulos v. Milopoulos, 691 So.2d 1199 (Fla. 4th DCA 1997). Once the judgment for arrearages is entered, it may be enforced through additional payments under an income deduction order, F.S.A. § 61.1301(1)(b), by garnishment, F.S.A. § 61.12, by entry of a lien against real property, or by contempt proceedings.

Retroactive Child Support

Can the Court base a retroactive child support calculation simply on what a party is making now?

Under F.S.A. § 61.30(17), an initial support award in a dissolution proceeding may be made retroactive to the date of the parents' separation, but not more than 24 months before the filing of the petition.

When determining a retroactive award, the court must do the following:

Under F.S.A. § 61.30(17)(a), the Court must apply the guidelines schedule in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by F.S.A. § 61.30(2), 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.

Under F.S.A. § 61.30(17)(b) the Court must consider all payments made by a parent to the other parent, the child, or third parties for the benefit of the child throughout the proposed retroactive period.

Lastly, under F.S.A. § 61.30(17)(c) the Court must, “Consider an installment plan for the payment of retroactive child support.”  This type of payment plan usually tacks on around 10% of the child support amount on a monthly basis until any retroactive arrearage is paid off.  For instance, if your child support payment is $600/month, the Court may increase it to $660/month until arreareage is paid off.

Income Deduction Orders

Whose duty it is to have an Income Deduction Order entered for child support or alimony purposes when the order is silent as to whose duty it is, Obligor (Payor) or Obligee (Payee)? 

Florida Statute § 61.1301(2)(a) states that the obligee or his or her agent shall serve an income deduction order and notice to payor.  Therefore, it is the obligation of the person who is receiving alimony or child support to see that the Income Deduction Order gets entered.  However, it is important for the obligor to be aware that it is his or her duty to pay the child support either directly to the obligee, or through the State of Florida Disbursement Unit, until an Income Deduction Order goes into effect and the child support actually starts to be deducted from the obligor's pay check.