Jacksonville Divorce Attorney Blog
Do You Know Your Rights in Child Support Court?
In a child support case, one cannot be incarcerated if they do not have the present ability to pay. Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985). Although this case is binding on Florida courts, the author believes that self represented individuals do not get the benefit of legal protections against incarceration or cancellation of a driver’s license or professional license. The author believes that one reason for this is because laymen tend to believe that an administrative agency must take a neutral position (similar to a judge). This is not the case when it comes to collection of child support by the Florida Department of Revenue. The author, in the next paragraph is going to summarize the case of Bowen v. Bowen to give readers a clearer understanding of child support issues when the Florida Department of Revenue is involved.
The Case of Bowen v. Bowen.
Bowen v. Bowen
471 So.2d 1274
Supreme Court of Florida 1985
Note: This case could be important for an Obligor (the individual liable to pay chgild support) to know about, as judges, magistrates and hearing officers are not always up to date on their understanding of the law. Sympathy frequently goes out to the Obligee who usually has the primary responsibility of care for the child or children. Therefore, one must be well prepared and or well represented to understand what a hearing officer or judge can subject them to. If you or someone you know has ever been arrested for failure to pay child support, you will want to read this case before the next hearing.
Perhaps one of the most important child support cases I will ever review is the case of Bowen v. Bowen. The reason this case is important to anyone who is paying child support (the Obligor) is because the case comes out of the Florida Supreme Court. Therefore, the principals in this case apply to every state court and county in the State of Florida. The main issue in the case was whether or not someone can be incarcerated as a result of finding them in civil contempt
In this case, Mr. Bowen was found to be in contempt of court in Polk County Circuit Court for failure to pay his child support obligation. The judge order Mr. Bowen incarcerated to serve a sentence of 5 months and 29 days. Mr. Bowen filed an appeal to the District Court. In Florida, the District Court of Appeal (this is the first appellate court that one goes to above the trial court in most family law cases). The Second District Court on appeal originally affirmed the trial court’s decision, but on rehearing, reversed and remanded the case to the trial court. The case eventually was appealed to the Florida Supreme Court. The Florida Supreme Court annunciated the correct procedure for finding someone in civil contempt for a support matter.
Mr. Bowen had previously been found to be indigent by the court, which means that his financial situation was poor. The Florida Statutes have a specific form embedded into them to help the clerk’s office determine if someone is indigent. The form is a one page informational form that a litigant or Obligor completes and turns into the clerk’s office for determination of indigency. The clerk’s office is not permitted to use their discretion in deciding whether one is indigent or not, their function is purely ministerial. In short, there is a presumption that one is not indigent if they have any assets with a net value above $2,500. See F.S. 57.082. There are exceptions for one’s homestead and for a vehicle with a net asset value not exceeding $5,000. A person seeking a determination of civil indigency can have a private attorney. If one is found to be indigent, the clerk’s fees are waived and the sheriff’s fees for serving process in Florida are waived, as well.
Note: As a practitioner, I have observed a lot of confusion in the clerk’s office in more than one county, as to how to deal with an application for indigency. Such has resulted in my having to speak with supervisors at the clerk’s office in several counties and explaining the law to them. Clerk’s themselves are non-lawyers typically and they do not always understand Florida Law. To make matters worse, at least one courthouse had an administrative order that ran contrary to the Florida Statutes. The clerk’s office is supposed to perform a ministerial act in determining one’s qualification for a determination of indigency. As an attorney, I have seen a clerk’s office require an attorney to certify that an individual is indigent. I have had the clerk’s in one county inform me that you could not be determined indigent if you had a private attorney unless he or she filed an affidavit that they were pro bon (free). The Florida Statutes cannot be taken lightly as that is the law in Florida yet some clerk’s offices argued that they would follow their own rules. The good news is that eventually every clerk that I have had to advise that I did not believe they were correctly following the procedures in the Florida Statutes for dealing with indigency eventually agreed with me after discussion (sometimes lots of discussion).
The Supreme Court found that if someone is incarcerated for failure to pay support and they do not have the ability to pay presently, and they prove this to the court, they cannot be held in civil contempt and incarcerated. To summarize, the Court found that when you incarcerate someone for failure to perform an act that they do not have the present ability to perform, you are punishing them. Civil contempt is only used to compel someone to perform an act that they have the present ability to perform. Criminal contempt is the appropriate sanction when one is being punished.
Note: There is a legal presumption that one has the ability to pay child support based upon the last order making such a determination. Therefore, one must rebut this presumption by proving that such is not true. There are many ways of showing one’s ability to pay support or lack thereof which I will specifically address in a future post. I have had to get several people out of jail during my career that should never have been arrested legally in the first place.
Know Your Rights and Get Professional Advice.
If you are scheduled to appear before a Florida court regarding a child support matter, you should seek an experienced attorney for help. The attorneys at the Law Office of David M. Goldman, PLLC are experienced at both Family Law and Criminal Law and they can help you sort out the factors that will help you decide how to proceed. To schedule a consultation with an experienced family law attorney, Call (904) 685-1200 today. Law Office of David M. Goldman, PLLC, 4115 Hendricks Ave., Jacksonville, Florida 32207. Telephone (904) 685-1200.
About the author
Neil Weinreb is a licensed Florida attorney who has been practicing family law for over 17 years in North Florida. Mr. Weinreb received the highest possible rating from Martindale Hubbell, AV Pre-eminent. Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida. Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida. You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation.