Gibson v. BennettGibson v. Bennett
We have for review Bennett v. Gibson, 510 So.2d 1234, 1237 (Fla. 2d DCA 1987), in which the district court certified the following question of great public importance:
DO THE CIRCUIT COURTS OF THIS STATE HAVE JURISDICTION TO ENFORCE A FOREIGN JUDGMENT FOR ARREARAGES OF ALIMONY OR CHILD SUPPORT BY MEANS OF EQUITABLE REMEDIES INCLUDING CONTEMPT?
We have jurisdiction.
Patricia Gibson Bennett and Oscar David Gibson were married in Virginia on December 26, 1964. On August 28, 1968, when Bennett was four months pregnant with their third child, Gibson abandoned Bennett and their two infant children.
Gibson was arrested in Virginia on January 15, 1969, after failing to make child support payments. He was ordered to pay $50.00 per week as child support beginning on January 20, 1969. After making two
In 1985, Gibson was discovered in Pasco County, Florida, living under the name of James Clinton Parker.1 A writ of ne exeat was issued for his arrest in Hillsborough County in January 1985. After spending two days in the county jail, the writ was vacated on the ground that there was no evidence Gibson would attempt to flee the state of Florida.
On June 6, 1985, the Virginia district court issued a rule to show cause to Gibson regarding arrearages in child support. Gibson filed an answer, but failed to appear at the July 11, 1985 hearing on the rule. The Virginia court reduced the arrearages to a final judgment in the amount of $106,073.58. The $50.00 per week child support has continued to accrue since July 11, 1985. The Virginia judgment was not appealed.
The foreign judgment was filed with the Clerk of the Circuit Court in Pasco County on December 23, 1985, and notice of the recording of the judgment was mailed to Gibson pursuant to
On appeal the Second District reversed the trial court‘s ruling on the authority of Sackler v. Sackler, 47 So.2d 292 (Fla. 1950), and its progeny and certified the question now before this Court.
As a matter of public policy, the state of Florida imposes a statutory duty upon parents to support their children.
Enforcement of foreign support decrees by equitable means was first mandated in Florida in McDuffie. This Court recognized that a Florida court of equity could exercise jurisdiction over a cause of action arising from a foreign decree for spousal support brought against a husband who had become a Florida citizen. To reach this result, the Court relied on the leading case of Fanchier v. Gammill, 148 Miss. 723, 114 So. 813 (1927). In Fanchier, the Supreme Court of Mississippi concluded that a suit in equity could be maintained in the state of Mississippi based on a foreign support decree. The Mississippi decision was predicated on two grounds: the public policy requiring a husband to support his wife and children and the power of enforcement by attachment and contempt proceedings inherent in judgments for support.
In Sackler, this Court went a step further and held that a nonresident wife may seek enforcement in Florida of a support decree which had been reduced to a foreign judgment by the same equitable remedies, including contempt proceedings, available to enforce a local decree. In deciding this issue, the Court noted that the question of whether equitable remedies could be used to enforce a final decree for support had
Later, this Court reaffirmed its decision in Sackler in the case of Haas v. Haas, 59 So.2d 640 (Fla. 1952). In Haas a former wife who had been awarded alimony in New York and later obtained a New York judgment for past due payments brought suit in a Florida court of equity to enforce the New York judgment. After citing the rule announced in Sackler, this Court held that a nonresident wife may seek enforcement of a money judgment based on a final decree for support either in a court of law or a court of equity. Haas, 59 So.2d at 643. Thus, it is well established in Florida that a nonresident custodial parent may seek enforcement by equitable processes of a foreign support decree or a foreign support decree that has been reduced to a money judgment. Sackler; Haas. See also Lanigan v. Lanigan, 78 So.2d 92 (Fla. 1955); Grotnes v. Grotnes, 338 So.2d 1122 (Fla. 4th DCA 1976); West v. West, 301 So.2d 823 (Fla. 2d DCA 1974); Miller v. Miller, 105 So.2d 386 (Fla. 1st DCA 1958), cert. quashed, 112 So.2d 832 (Fla. 1959).
Gibson contends, however, that the rule laid down in Sackler is no longer the prevailing law in Florida. Gibson‘s assertion is based on his view that Sackler and its progeny have been receded from in Sokolsky v. Kuhn, 405 So.2d 975 (Fla. 1981), and Lamm v. Chapman, 413 So.2d 749 (Fla. 1982). Gibson argues that these cases preclude the use of equitable remedies, including contempt, to enforce a support obligation once the obligation has been reduced to a money judgment. Gibson concludes that reducing a support decree to a money judgment transforms the decree to an ordinary judgment debt, enforceable only by an action at law. He points out that contempt would have been available as a remedy if Bennett had tried to enforce the support decree issued by the Virginia court. However, Gibson asserts that once Bennett obtained a money judgment, she acquired different rights accompanied by different remedies, which do not include enforcement of the judgment by contempt.
To support his contention, Gibson relies principally upon language in Lamm explaining generally the rights of parties seeking to enforce child support obligations:
We note that, although contempt may be the most generally used means of enforcing the child support obligation, it is not the only remedy available to the state or to the child‘s custodian. Either could obtain a judgment for an arrearage of child support. In the event that such a judgment is obtained, it constitutes a judgment debt upon which traditional enforcement remedies, including liens and levies, may be utilized. The contempt power of the court is no longer available to enforce the child support obligation for those arrearages which have been reduced to a judgment debt for which execution may issue, regardless of whether the judgment was obtained by the department or by the custodial parent.
We find Gibson‘s reliance on Sokolsky and Lamm to be misplaced. In Sokolsky, this Court was asked to determine whether
The issues addressed in Lamm and Sokolsky are dissimilar from the issue presented in Sackler. In neither Lamm nor Sokolsky did the Court address or discuss whether a money judgment for child support could be enforced by contempt proceedings. Nor did Sackler, Haas, or Lanigan address the issue considered in either Sokolsky or Lamm. Further, the quoted passage from Lamm upon which Gibson relies was considered by the district court below and was correctly characterized as dicta. Bennett, 510 So.2d at 1237.
Moreover, in 1986, acting under guidelines of the federal Child Support Enforcement Amendments of 1984, Pub.L. No. 98-378, 98 Stat. 1305 (codified as amended in scattered sections of 42 U.S.C.A. (1984)), the legislature substantially amended
Alimony and child support; additional method for enforcing orders and judgments; costs, expenses. The entry of a judgment for arrearages for child support, alimony, or attorney‘s fees and costs does not preclude a subsequent contempt proceeding or certification of a IV-D case for intercept, by the United States Internal Revenue Service, for failure of an obligor to pay the child support, alimony, attorney‘s fees, or costs for which the judgment was entered.
The language of this section, adopted subsequent to Lamm and Sokolsky, expressly provides for the use of contempt proceedings, in addition to other remedies available, to enforce a judgment for support arrearages. While
Establishing a support decree as a money judgment does not destroy the decree as an order to pay support nor is the obligation reduced to an ordinary judgment debt enforceable only at law. Likewise, relocation of a party to another state does not alter the character of the award. The purpose of the award remains the payment of support to the former spouse or the children regardless of its form or the location of the parties. Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449, 450 (1934). A decree for support is different than a judgment for money or property: It is a continuing obligation based on the moral as well as legal duty of a parent to support his or her children. Sackler, 47 So.2d at 294 (quoting Rule v. Rule, 313 Ill. App. 108, 39 N.E.2d 379 (1942)). Because of this difference, a judgment for support should be enforced by more efficient means than ordinary execution at law. To hold that such a judgment can be enforced only by execution at law would amount to depriving a support award of its inherent power of enforcement by contempt.
Gibson next argues that enforcement of a judgment for support by contempt violates the constitutional prohibition against imprisonment for debt found in
Initially, we note that the United States Supreme Court has recognized that the obligation to pay support may be enforced by imprisonment for contempt without violating a constitutional prohibition against imprisonment for debt. Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009 (1901) (quoting Barclay v. Barclay, 184 Ill. 375, 56 N.E. 636 (1900)); Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904). Although both of these cases involved bankruptcy proceedings, the question before the Court in each instance was whether an order for support constituted a debt that could be discharged in bankruptcy. In determining that a support decree was not such a debt, the Court distinguished an obligation to pay support from a debt arising from a business transaction or a contractual obligation stating:
[A] decree awarding alimony to the wife or children, or both, is not a debt which has been put into the form of a judgment, but is rather a legal means of enforcing the obligation of the husband and father to support and maintain his wife and children. He owes this duty, not because of any contractual obligation, or as a debt due to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty, and enforces it against him by means of legal proceedings.
Wetmore v. Markoe, 196 U.S. at 74, 25 S.Ct. at 174.
In Florida, imprisonment for debt is specifically prohibited by the Florida Constitution.
It must be understood, however, that enforcement of support payments by contempt is not absolute. Contempt for failure to pay support is civil contempt because its purpose is to obtain compliance from the person subject to an order of the court. In Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla. 1985), this Court emphasized that civil contempt is appropriate only upon demonstration that the party in default has the present ability to comply with the purge provisions of the court order and avoid imprisonment. Because the original order or judgment directing a party to pay support is based on a finding that the party has the ability to pay, that order or judgment creates the presumption in subsequent proceedings that the party can pay. Id. The burden rests upon the defaulting party to produce evidence to dispel the presumption of ability to pay due to circumstances beyond his or her control and to prove there was no willful disobedience of the court order. Incarceration for civil contempt for nonpayment of a support obligation cannot be imposed absent a separate, affirmative finding by the trial court appearing on the record that the defaulting
Finally, we turn to Gibson‘s argument that even if contempt proceedings are found to be proper to enforce payment of a judgment for support arrearages, the remedy is unavailable once the child attains the age of majority. For this proposition Gibson relies on two cases, Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980), and Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970). See also Schwarz v. Waddell, 422 So.2d 61 (Fla. 3d DCA 1982); Gersten v. Gersten, 281 So.2d 607 (Fla. 3d DCA 1973). In both first district cases, the court held that the trial court was without jurisdiction to enforce payment of support arrearages by contempt proceedings after a minor child has attained the age of majority.5 The district court reasoned that contempt was not an appropriate remedy to enforce support arrearages because the purpose and justification for the use of contempt, namely ensuring the support of the minor child, expires when the child reaches majority. The first district concluded that only the right to enforce the judgment by ordinary remedies remains.
Support payments are imposed upon a parent because the trial court has determined the payments are necessary to provide for the needs of the child. When a support-obligated parent fails to make support payments, the responsibility for maintaining the child falls entirely upon the custodial parent. In many instances, the custodial parent cannot shoulder the additional financial burden that rightfully and lawfully belongs to the nonpaying parent. As a consequence, the family often suffers hardships that otherwise could be avoided, and in some cases they are forced to seek aid from the state. In any event, due to the delinquency of a nonpaying parent, money from a support-dependent parent‘s own funds or from the state has been expended to maintain the child during minority.
The purpose, in part, of support enforcement legislation is to ensure that parents, rather than the public, bear the responsibility for the support of their children while the children are minors.
Upon emancipation of a minor child, the support-dependent parent is not magically reimbursed for personal funds spent nor debts incurred due to nonpayment of child support. Hardships suffered by a family do not disappear. A family‘s feelings of indignation from abandonment by the nonpaying parent or from past reliance on public assistance are not forgotten. Society‘s interest in ensuring that a parent meets parental obligations must not be overlooked simply because the child has attained the age of majority. The support obligation does not cease; rather it remains unfulfilled. The nonpaying parent still owes the money.
Today, support-dependent parents and the courts often experience great difficulty obtaining compliance with support orders while a child is a minor even though the remedy of contempt is available. If the courts lack the power to enforce child support orders through contempt proceedings after the child reaches majority, a nonpaying parent may escape his or her support obligation entirely, especially a parent with little or no property subject to attachment in an action at law. If a parent dependent on support is left with the less effective civil action, the nonpaying parent may be encouraged to hide assets or purposefully elude the court until the child attains age eighteen, preferring the civil action on a debt rather than a contempt proceeding. As this Court has previously stated, we have no desire to make this state a haven for those who wish to avoid their support obligations. Sackler v. Sackler, 47 So.2d at 294. Accordingly, we hold that a judgment for support arrearages is enforceable by contempt proceedings after a child has reached the age of majority. In our view, emancipation does not extinguish a support-obligated parent‘s responsibility to pay the past due support.
For the reasons expressed in this opinion, we answer the certified question in the affirmative and remand this cause for proceedings consistent with this opinion.
It is so ordered.
EHRLICH, C.J., and SHAW, BARKETT and GRIMES, JJ., concur.
OVERTON, J., concurs specially with an opinion.
McDONALD, J., concurs specially with an opinion.
OVERTON, Justice, specially concurring.
I concur but find that we should expressly recede from our language in Lamm v. Chapman, 413 So.2d 749, 753 (Fla. 1982), which stated: “The contempt power of the court is no longer available to enforce the child support obligation for those arrearages which have been reduced to a judgment debt for which execution may issue, regardless of whether the judgment was obtained by the department or by the custodial parent.” That language was based on this Court‘s decision in Haas v. Haas, 59 So.2d 640 (Fla. 1952). As explained by Justice McDonald in his concurring opinion in this case, the election of remedies doctrine in its pure form mandates that once one chooses a remedy, the chosen remedy is the exclusive means of relief. Consequently, if one were to choose the remedy at law and have a judgment entered, then the equitable
However, times have changed. As explained in the majority opinion in this case, both the United States Congress and the Florida Legislature have enacted legislation that expands the means available for collecting child support and alimony. Such legislation includes
McDONALD, Justice, concurring specially.
The majority opinion correctly reports that Sackler v. Sackler, 47 So.2d 292 (Fla. 1950), and Haas v. Haas, 59 So.2d 640 (Fla. 1952), set this Court‘s course in a direction to require an affirmative answer to the question certified by the district court of appeal. Not available to us from the language of those opinions is the full content of the foreign judgments sued upon. Insofar as the employment of the contempt powers are concerned, I deem it important to view the language of such judgments.
In determining the applicability of contempt one must first review its definition.
[a] refusal to obey any legal order, mandate or decree, made or given by any judge either in term time or in vacation relative to any of the business of said court, after due notice thereof, shall be considered a contempt, and punished accordingly. But nothing said or written, or published, in vacation, to or of any judge, or of any decision made by a judge, shall in any case be construed to be a contempt.
In South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla. 1956), this Court discussed the use of contempt powers to enforce an injunction and quoted with approval a definition of contempt from J. Oswald, Contempt of Court 5 (3d ed. 1911):
“Contempt of Court (which has been irreverently termed a ‘legal thumbscrew‘) is so manifold in its aspects that it is difficult to lay down any exact definition of the offense. ‘It is defined or described to be a disobedience to the Court, an opposing or a despising the authority, justice, or dignity thereof. It commonly consists in a party‘s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree of the Court‘.”
South Dade Farms, 88 So.2d at 898.
For there to be civil contempt of court there must be a violation of a direct court order. In child support or alimony cases this is usually an order to pay child support, alimony, attorney‘s fees, or concerning visitation or custody of children. Most money judgments are simply the entry of a judgment in favor of one party against another without an order to pay. I do not believe that such a judgment will support a contempt finding because the nonpayment of a judgment is not a violation of a court order. In this case the 1969 order requiring support would support a contempt citation for willful noncompliance; the money judgment on an arrearage entered in 1985, standing alone, would be insufficient because it is not an order of the court. The action in this case was predicated on the judgment of arrearage and not the original order to pay. Perhaps this is a technical distinction, but one I deem important in deciding whether contempt lies.
Notwithstanding my belief that a judgment which was predicated on arrearages of a prior court order standing alone will not support the use of contempt powers, I conclude that the judgment in this case will. That is because the judgment sued upon contains a finding that Gibson was in
We need to discuss and decide whether the reduction of the arrearage to judgment limits one to civil remedies or also allows equitable remedies. In Haas this Court stated:
A nonresident wife who seeks to enforce in the courts of this state a final alimony decree or money judgment based thereon entered by a court in another state may do so in a court of law by a common-law action to secure a money judgment for the delinquent alimony, or she may ask our equity court to exert its equitable remedies in the enforcement of such decree. If she chooses the latter forum, she must be prepared to meet any equitable defenses which are recognized in this state in an equitable action to enforce a domestic decree for alimony.
59 So.2d at 643. This seemingly restricts a complainant to equitable or civil proceedings in Florida.
This, and our language in Lamm v. Chapman, 413 So.2d 749 (Fla. 1982), cited in the majority opinion was predicated on the concept of election of remedies, i.e., an aggrieved party can pursue but one route. I now conclude that this principle of law has no place in the collection of child support and alimony payments. In this regard I concur fully with the majority and with Grotnes v. Grotnes, 338 So.2d 1122 (Fla. 4th DCA 1976).
The majority is absolutely correct in the conclusion that the equitable powers of enforcement for uncollected child support continue after the child reaches majority.