EDWARD FRANKLIN ACKER, APPELLANT,
v.
GAIL LYNN ACKER, APPELLEE
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In this domestic appeal, the Fourth District Court of Appeal reversed an order conditioning the husband's child visitation on timely payment of child support, holding that while visitation cannot be categorically conditioned on support payments, a court may terminate visitation rights in cases of willful and intentional failure to pay support that is detrimental to the child's welfare.
The court held that while child visitation cannot be inflexibly conditioned upon timely payment of child support as a categorical rule, a trial court may terminate or restrict visitation rights when there is willful and intentional refusal to pay support that is detrimental to the child's welfare. The trial court erred by conditioning future visitation without regard to the possibility of excusable failure to pay.
[1] The right to child visitation may not be conditioned upon timely payment of child support.
[2] A court may terminate a parent's child visitation rights in the face of a willful and intentional refusal to pay child support that is detrimental to the child's welfare.
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Join FLexlaw to unlock all legal intelligence“the right to child visitation may not be conditioned upon timely payment of child support”
Establishes the general rule from precedent that visitation cannot be categorically conditioned on support payments
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Join FLexlaw to unlock all legal intelligenceThe husband and wife were divorced approximately three years prior. The husband had not paid child support for nearly the entire duration of the divor…
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BERANEK, Judge.
In this post decretal domestic matter the husband/appellant contests an order wherein his child visitation was conditioned on timely payment of child support. Appellant relies upon Hechler v. Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977); Chaffin v. Grigsby, 293 So. 2d 404 (Fla. 4th DCA 1974); and Howard v. Howard, 143 So. 2d 502 (Fla. 3d DCA 1962), each of which holds that the right to child visitation may not be conditioned upon timely payment of child support. We reverse but take this occasion to comment upon the problem involved.
In the instant situation appellant had not paid child support for approximately three years which was almost the entire time the parties had been divorced. During most of this time appellant clearly had the ability to pay support. Despite his own non-compliance appellant filed a motion to hold his former wife in contempt for her alleged failure to allow child visitation. On the day of the hearing on his motion for contempt, the husband, at long last, tendered a $25.00 payment toward future child support. The husband’s conduct was both willful and intentional and clearly detrimental to the welfare of the infant child. Under such factual settings the above cited cases do not require that the appellant be allowed visitation. The above authorities instead sought to prohibit the placing of inflexible future conditions on the right to visit one’s child. Obviously, the right to visit does not terminate upon an excusable failure to pay child support. Conversely, in the face of a willful and intentional refusal to pay child support which is detrimental to the welfare of the child, the right to child visitation may be terminated. The court’s continuing jurisdiction is available in regard to further application for reinstatement of visitation.
In this case the Court did not terminate the husband’s child visitation but instead conditioned future child visitation on timely payment without regard to the genuine possibility of excusable failure. Although this order was in part invited by the husband’s actions and pleadings, we feel the Court below did err and this matter is thus reversed for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
LETTS and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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In the Interest of D.F.W. Jr. Dep't OF H.R.S. v. Devel F. Wesley, 497 So. 2d 925 (Fla. 5th DCA 1986)…v. Adams, 339 So. 2d 665, 666 (Fla. 4th DCA 1976) (refusal to allow visitation is an affirmative defense). . O'Brien v. O’Brien, 424 So. 2d 970 (Fla. 3rd DCA 1983). . See also Frazier v. Frazier, 395 So. 2d 590 (Fla. 2d DCA 1981); Acker v. Acker, 365 So. 2d 180 (Fla. 4th DCA 1978); Hechler v. Hechler, 351 So. 2d 1122 (Fla. 3rd DCA 1977); Chaffin v. Grigsby, 293 So. 2d 404 (Fla. 4th DCA 1974); Howard v. Howard, 143 So. 2d 502 (Fla. 3rd DCA 1962).…
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Peterson v. Jason, 513 So. 2d 1351 (Fla. 1st DCA 1987)…isitation does not terminate upon an excusable failure to pay support, in the face of a willful and intentional refusal to pay child support which is detrimental to the welfare of the child, the right to visitation may be terminated. Acker v. Acker, 365 So. 2d 180, 181 (Fla. 4th DCA 1978). See also Nalley v. Nalley, 406 So. 2d 1240 (Fla. 1st DCA 1981) (a trial court can limit or prevent visitation when it is in the best interest of the child). Therefore, it appears that a trial court can terminate a parent’s…
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Frazier v. Frazier, 395 So. 2d 590 (Fla. 2d DCA 1981)…willfully refused to keep his child support payments current. Such conduct is reprehensible, and the trial court’s condition on visitation privileges was obviously directed to prevent such future conduct. However, on the authority of Acker v. Acker, 365 So. 2d 180 (Fla. 4th DCA 1979); Hechler v. Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977); Chaffin v. Grigsby, 293 So. 2d 404 (Fla. 4th DCA 1974); and Howard v. Howard, 143 So. 2d 502 (Fla. 3d DCA 1962), such conditioning of future visitation rights is improper.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daewid Hechler v. Marita Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977)
- Howard v. Howard, 143 So. 2d 502 (Fla. 3d DCA 1962)
- Chaffin v. Grigsby, 293 So. 2d 404 (Fla. 4th DCA 1974)