July 1, 2009

Driving in Circles Around Child Support and Contempt Issues?

Many people understand the reality and importance of complying with a court’s order directing that child support payments be made on behalf of their children. What some may not realize is the failure to comply with said obligation could potentially result in a number of sanctions, including garnishment of wages, suspension of a driver’s license, or imprisonment.  The law, however, is clear as to the procedure that must be followed prior to the imposition of various sanctions.

We were recently successful in obtaining a stay of proceedings pending appeal, of a civil contempt order suspending our client’s driver’s license based on failure to pay child support arrearages in another state.  Under the Florida Family Law Rules of Procedure, an individual may have his or her driver’s license suspended as a sanction for failing to pay court ordered child support.  Pursuant to the rules of appellate procedure, a motion to stay proceedings must first be made in the lower tribunal.  If unsuccessful, the motion to stay proceedings can then be made in the appellate court.  In this particular case, we explained to the trial court that due to procedural deficiencies with the order on review, we had a good chance of prevailing on appeal.  On appeal, we are arguing that the order is subject to reversal where the judge failed to set a purge amount.  At the conclusion of the hearing of the Motion to Stay Proceedings, the trial judge, acknowledging the order’s failure to state a purge amount, had the driver’s license suspension recalled pending the outcome of the appeal.

In order to suspend an individual’s driver’s license for failure to pay child support, several findings must be made by the trial court.  First, the court must determine that the child support was owed and a failure to pay has occurred. Second, the court must then set a purge amount, meaning that the court must set an amount that the individual must pay in order to avoid or end the sanction of driver license suspension.  Finally, the court must make a finding that the individual has the ability to pay the purge amount.  In our case, the trial judge found that the client failed to pay court ordered child support, but did not set a purge amount or make a finding that a present ability to pay a purge amount existed.  Thus, we were successful in having the suspension recalled pending the appeal.  For more, see, e.g., Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); Larsen v. Larsen, 901 So. 2d 327 (Fla. 4th DCA 2005).