STATE OF FLORIDA, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, CHILD SUPPORT ENFORCEMENT, AND EVARISTO ALVAREZ, APPELLANTS,
v.
DAISY ALVAREZ, APPELLEE
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The Florida Court of Appeal affirmed a trial court's decision declining to impose child support arrearage payments on a mother with income below minimum wage. The court held that while child support arrearages are enforceable vested rights, a trial court has discretion to set repayment schedules based on the obligor's ability to pay, and where ability to pay is essentially zero, no repayment rate is required.
The trial court did not abuse its discretion in not mandating any rate of repayment where the mother had essentially no ability to pay the child support arrearage. While support obligations are vested rights and courts must consider ability to pay in setting repayment schedules, requiring payment at an unconscionably low rate based on ability to pay is error, and setting zero payment is permissible when ability to pay is essentially nonexistent.
[1] A trial court has discretion to determine the manner in which child support arrearages are to be repaid.
[2] When determining a repayment schedule for child support arrearages, a court must consider the payor's ability to pay.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Support obligations which accrue under a court order are vested rights of the payee and vested obligations of the payor.”
Establishes that child support arrearages are legally enforceable vested obligations, supporting the trial court's entry of judgment even though no immediate payment was ordered.
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Join FLexlaw to unlock all legal intelligenceThe parents divorced in May 1987 with mother awarded custody and father owing child support. Father obtained custody in 1988 and sought support from m…
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PER CURIAM.
Appellants, the State of Florida Department of Health and Rehabilitative Services (HRS), and Evaristo Alvarez (father), appeal a modification order which declined to mandate payment for child support arrearages by the appellee, Daisy Alvarez (mother). We affirm. The mother and father divorced in May 1987. The final judgment of dissolution of marriage granted custody of the parties’ two children to the mother and required the father to pay child support.
The father obtained custody of the children in 1988 and sought child support payments from the mother in 1989. The court set child support at $350.00 per month. In February 1993, upon a motion for modification of child support and custody, the court transferred custody of the younger child to the mother. The court also granted judgment for the father of $6,401.00 in child support arrearage payments plus interest. Finding the mother’s net monthly income of $652.00 was below minimum wage, the court determined that she lacked the present ability to pay toward the arrearage.
Appellants contend that failure to require any payment by the mother toward her arrearage was erroneous. Appellants further contend that while ability to pay should be considered in determining a reasonable payment schedule, even a person with limited income should be held accountable.
The trial court has not been bereft in its obligation to hold accountable the party owing the arrearage. Support obligations which accrue under a court order are vested rights of the payee and vested obligations of the payor. Onley v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989). The court entered judgment on behalf of the father and advised the mother that interest on the arrearage will continue to accrue.
The trial court has discretion to determine the manner in which the arrear-age is to be repaid. Larger v. Diaz, 595 So. 2d 1092, 1094 (Fla. 3d DCA 1992). The court must consider the payor’s ability to pay when determining the repayment schedule. Id. When a child support arrearage is established, it is error to order an unconscionably low rate of repayment. Onley, 540 So. 2d at 881. However, rates of repayment are unconscionably low when they are much lower than the parent’s ability to pay. See Larger, 595 So. 2d at 1094.
In this case, the court found that a parent who has custody of one child and an income less than minimum wage lacks the present ability to pay her child support arrearage. Accordingly, we hold that the trial court did not abuse its discretion in not mandating any rate of repayment where the mother had essentially no ability to pay the child support arrearage.
Of course, the father may return to the trial court to seek modification of its child support order upon a showing of a substantial change in financial circumstances on the part of the mother. See Landa v. Massie, 593 So. 2d 1146 (Fla. 3d DCA), review denied, 602 So. 2d 942 (Fla.1992).
Affirmed.
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Dep't OF Revenue v. Hall, 699 So. 2d 1036 (Fla. 5th DCA 1997)…pay. While the trial court has discretion in determining the manner in which arrearages will be repaid, it must consider the payor’s ability to pay when fashioning a repayment schedule. State, Dept. of Health and Rehabilitative Services v. Alvarez, 629 So. 2d 247, 248 (Fla. 3d DCA 1993). Because the order includes no findings on the subject, this court cannot determine whether the rate of repayment is reasonable or unconscionably low. Id. Therefore, on remand, the trial court must determine the amount the fo…
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Vitt v. Rodriguez, 960 So. 2d 47 (Fla. 5th DCA 2007)…arages will be repaid.... ” Dep’t of Revenue ex rel. Hall v. Hall, 699 So. 2d 1036, 1038 (Fla. 5th DCA 1997). Other courts have adopted this rule, and it has long been part of our jurisprudence. See State, Dep’t of Health & Rehab. Servs. v. Alvarez, 629 So. 2d 247, 248 (Fla. 3d DCA 1993); Puglia v. Puglia, 600 So. 2d 484, 486 (Fla. 3d DCA 1992); Larger v. Diaz, 595 So. 2d 1092, 1094 (Fla. 3d DCA 1992); Leone v. Weed, 474 So. 2d 401 (Fla. 4th DCA 1985); Shellmyer v. Shellmyer, 418 So. 2d 477, 478 (Fla. 4th DCA…
Authorities Cited
- Patricia Onley & the Dep't of Health & Rehabilitative Servs. v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989)
- Sw. Offs., Inc. v. Cnty. Nat'l Bank of S. Fla., 595 So. 2d 1092 (Fla. 3d DCA 1992)
- Landa v. Massie, 593 So. 2d 1146 (Fla. 3d DCA 1992)