BETTY JEAN LAMAR, N/K/A BETTY DEUTSCH, APPELLANT,
v.
JUSTO LAMAR, III, APPELLEE

Fla. 4th DCA | 2004-12-22
No. 4D03-3937
WARNER, J., and SILVERMAN, SCOTT, Associate Judge, concur.
889 So. 2d 983 Florida District Court of Appeal, Fourth District (2004) Caution
Cited by 9 cases

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Holding

The court held that the trial court abused its discretion by setting an unreasonably low purge payment for a substantial child support arrearage and erred in placing the burden of proof on the former wife to show the former husband's ability to pay attorney's fees.


Headnotes

[1] A purge payment for a substantial child support arrearage must be reasonable and cannot be structured to postpone repayment until the children are adults.

[2] A trial court abuses its discretion by setting a purge amount for child support arrearages that would not be satisfied until the children reach adulthood.

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Facts & Procedural History

Following a post-dissolution contempt proceeding, the trial court adopted a hearing officer's findings, holding the former husband in contempt for a l…

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Opinion of the Court
GROSS, J.

GROSS, J.

Betty Deutsch, the former wife, appeals an order arising out of a post-dissolution contempt proceeding where the trial judge adopted the findings made by a child support hearing officer. We reverse for the trial court to reconsider the amount of the purge payment that should apply to a large arrearage and to assess prejudgment interest on the arrearage.

A 1999 order obligated the former husband, Justo Lamar, III, to pay: (1) monthly child support of $1,008.37, and (2) 50% of all reasonable and necessary uncovered medical and dental expenses incurred by the minor children. The order imputed income of $875.00 a week to the former wife, and determined that the former husband’s monthly income as a yacht broker was $5,000.00.

The same order also held the former husband in contempt for unpaid child support of $4,243.14, and medical expenses of $1,196.16. In addition, the trial court ordered the former husband to pay attorney’s fees and costs of $7,132.76. The court noted that the fees were attributable to the former husband’s failure to comply with discovery requests.

In 2003, the former wife moved to hold the former husband in contempt, alleging that he owed unpaid child support in the amount of $17,459.03, medical and dental expenses of $2,702.73, and attorney’s fees and costs in the amount of $7,132.76.

At a May 23, 2003 hearing on the motion for contempt before a child support hearing officer, the former husband failed to appear. On May 28, 2003, the trial court adopted the findings of the hearing officer and issued an order partially granting and partially denying the motion for contempt. The court held the former husband in contempt for failing to pay child support of $20,706.13. As to this arrearage, the court ordered the former husband to pay $100.00 a month, in addition to his regular monthly child support.

The court did not hold the former husband in contempt for failing to pay the medical and dental expenses. As to the attorney’s fees and costs, the trial court noted that because the former wife did not present any evidence that the former husband had the present ability to satisfy the arrearage, the court could not “make a finding of contempt with a purge provision.”

The trial court abused its discretion in requiring the former husband to pay a purge amount of only $100 a month for a $20,706.13 child support arrearage. The 1999 order created a presumption that the former husband had the present ability to pay child support and to purge himself of the contempt. See § 61.14(5)(a), Fla. Stat. (2003); Bowen v. Bowen, 471 So. 2d 1274, 1278-79 (Fla.1985); Pompey v. Cochran, 685 So. 2d 1007, 1014 (Fla. 4th DCA 1997) (en banc). At $100 a month, the purge amount would not be satisfied until the minor children are thirty-three years old. As Judge Hurley has written, a plan for purging child support arrearages

which postpones repayment of support until the object of such support reaches legal age or becomes self-supporting flies in the face of the very reasons for which “child support” exists. This child needs sustenance now, not a dowry in the future.

Leone v. Weed, 474 So. 2d 401, 404 (Fla. 4th DCA 1985).

Nothing in the record contradicts the finding in the 1999 order that the former husband makes $5,000 a month. As we did in Leone, we hold that “it was error to permit such an extended and delayed repayment schedule. The former husband should be required to make reasonable arrearage payments concurrent with his regular support payments.” Id.

The former wife is also entitled to collect prejudgment interest for all arrearages from the initial date that the former husband owed unpaid child support. See Shrove v. Shrove, 724 So. 2d 679, 683 (Fla. 4th DCA 1999); Remington v. Remington, 705 So. 2d 920, 921 (Fla. 4th DCA 1997). On remand, the trial court shall enter a new purge amount and add prejudgment interest to the arrearage.

Finally, in its ruling as to the unpaid attorney’s fees, the trial court erred in placing the burden of proof on the former wife to demonstrate that the former husband had the present ability to satisfy the arrearage. Contempt was an available remedy for the attorney’s fees in this case in the same manner as unpaid child support. See Taylor v. Wojtusik, 844 So. 2d 801, 802 (Fla. 4th DCA 2003); Wertkin v. Wertkin, 763 So. 2d 465, 466 (Fla. 4th DCA 2000). In the contempt proceeding, the former wife was entitled to the same presumption of the former husband’s ability to pay attorney’s fees that she enjoyed with regard to child support.

WARNER, J., and SILVERMAN, SCOTT, Associate Judge, concur.


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Citator

Cited By

  • Vitt v. Rodriguez, 960 So. 2d 47 (Fla. 5th DCA 2007)
    …support is awarded is entitled to prejudgment interest for all arrearages from the date the child support is due until the date of the arrearage judgment, along with interest that accrues on the arrearage judgment itself. See, e.g., Lamar v. Lamar, 889 So. 2d 983, 984 (Fla. 4th DCA 2004); Warner v. Warner, 692 So. 2d 266, 270 (Fla. 5th DCA 1997); Matteo v. Matteo, 667 So. 2d 1003, 1004 (Fla. 3d DCA 1996); Romans v. Romans, 611 So. 2d 92 (Fla. 1st DCA 1992); Applegate v. Applegate, 566 So. 2d 865, 866 (Fla. 1…
  • Mattison v. Mattison, 266 So. 3d 258 (Fla. 5th DCA 2019)
    …epayment of arrearages at the rate of $50 per month must also be revisited. The present $50 per month arrearage payment (computing to $600 per year) will barely pay the annual interest accruing on the present arrearage balance. See Lamar v. Lamar, 889 So. 2d 983, 984 (Fla. 4th DCA 2004) (“[A] plan for purging child support arrearages ‘which postpones repayment of support until the object of such support reaches legal age or becomes self- supporting flies in the face of the very reasons for which “child supp…
  • Aimette M. Hernandez v. Frontiero, 73 So. 3d 875 (Fla. 4th DCA 2011)
    …pay only $20.00 per month towards the arrearage. The circuit court accepted the magistrate’s recommendation. No competent, substantial evidence exists in the record to support the recommendation. This case is indistinguishable from Lamar v. Lamar, 889 So. 2d 983 (Fla. 4th DCA 2004). There, the circuit court allowed the father to pay a purge amount of only $100 per month towards a $20,706.13 child support arrearage. At $100 per month, the purge amount would not have been satisfied until the minor children we…

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