DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES ON BEHALF OF CHARLENE NEWHALL, APPELLANT,
v.
CHRIS SMITH, APPELLEE

Fla. 5th DCA | 1992-10-16
No. 92-201
W. SHARP, J., concurs., GOSHORN, C.J., dissents with opinion.
605 So. 2d 1335 Florida District Court of Appeal, Fifth District (1992) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The dissenting judge would hold that the trial court has inherent authority to suspend child support payments when the state refuses to disclose the child's location without good cause.


Headnotes

[1] Denial of visitation rights cannot be used as a defense in child support enforcement actions under URESA.

[2] Payment of child support cannot be conditioned upon allowing visitation.

Previewing 2 of 4 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

Facts & Procedural History

The father was unable to locate his child, and both Florida and New York, the states involved in enforcing child support, refused to disclose the chil…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
DIAMANTIS, Judge.

DIAMANTIS, Judge.

Appellant Department of Health and Rehabilitative Services (HRS) appeals the trial court’s order which declines to enforce appellee/father’s child support obligation, eliminates the father’s obligation to pay past due child support, and terminates the father’s obligation to pay future support. We reverse the trial court’s order and remand this matter for further proceedings.

In 1989 appellee was adjudicated to be the father of a dependent child and, pursuant to URESA, ordered to pay $108 per month in child support. See, generally, Chapter 88, Florida Statutes (1991). In 1991 HRS moved the trial court to enforce the father’s obligation by contempt proceedings, alleging that the father was in arrears in support payments. At the hearing the trial court found that the father had not seen his child for over a year and that despite his requests to locate his child neither the officials of the rendering state (New York) nor the initiating state (Florida) would inform him where his child was residing. For these reasons, the trial court entered an order in which it ruled that the father was not in contempt of court. The trial court then sua sponte eliminated the father’s obligation to pay child support between the date of the contempt hearing and the date that HRS files a pleading that sets forth the address, physical location, and telephone number of the mother and child.1

We conclude that the trial court erred in modifying the support order because the father failed to file an appropriate pleading invoking the court’s subject matter jurisdiction and failed to provide HRS with proper notice that the support order might be modified. Specifically, the father did not file any affirmative defense regarding denial of visitation nor did he file any pleading requesting an elimination of past due child support payments. Cortina v. Cortina, 98 So. 2d 384 (Fla.1957); In Interest of D.F.W., 497 So. 2d 925 (Fla. 5th DCA 1986). Notice that arrears would be considered did not place HRS on notice that the child support order might be modified. Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982).

Moreover, in URESA cases section 88.271 of the Florida Statutes (1991) expressly forbids use of denial of visitation rights as a defense in child support enforcement actions. Section 88.271 provides, in pertinent part:

The determination or enforcement of a duty of support owed to one petitioner is unaffected by any interference by another petitioner with rights of custody or visitation granted by a court.2 [Footnote added].

Because of this statutory provision, payment of child support cannot be conditioned upon allowing visitation. See Department of Health and Rehabilitative Services v. Ciferni, 429 So. 2d 92 (Fla. 2d DCA 1983); Davis v. Davis, 376 So. 2d 430 (Fla. 1st DCA 1979); Vecellio v. Vecellio, 313 So. 2d 61 (Fla. 4th DCA 1975). Additionally, in D.F.W., supra, this court specifically held that the right of a child to receive support cannot be barred because of the mother’s actions regarding visitation nor can such right be bargained away in exchange for the father’s visitation rights.

In the instant case, the record reflects that no order of visitation has been entered. The record only contains an order requiring the support to be paid. If the father desires visitation, he may petition the appropriate court to adjudicate his right of visitation and have the matter heard after due notice.3 If the court establishes specific visitation as to time, place, and circumstances, any interference by the mother with such visitation could be specifically enforced against her by utilization of the court’s contempt power. See D.F.W., supra.

Accordingly, we vacate the trial court’s order and remand this cause to the trial court with directions to enforce the father’s obligation of support pursuant to applicable case law4 and URESA. REVERSED and REMANDED.

W. SHARP, J., concurs.

GOSHORN, C.J., dissents with opinion.

. HRS subsequently complied by filing the requisite pleading and this court relinquished jurisdiction to the trial court to reinstate child support.

. Since October 1, 1986 sections 61.13(4)(a) and (b) contain comparable language with respect to Florida cases.

. The father now has the residence address of the mother; however, even if he did not have the address, he could, after he filed his petition for visitation, obtain the address by utilizing discovery procedures directed to the appropriate state agency involved in the URESA proceedings.

. See State Dept. of Health and Rehabilitative Services v. Canady, 473 So. 2d 273 (Fla. 2d DCA 1985); Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA 1983).

Dissent
GOSHORN, Chief Judge,

GOSHORN, Chief Judge,

dissenting.

I respectfully dissent. This action does not involve a mother seeking to enforce a child support obligation. Rather, the real party in interest is the commissioner of social services of the State of New York seeking reimbursement for public assistance provided by it to the mother. In accordance with the appellee’s testimony, the trial judge found that the appel-lee had been unable to locate his child and that both the State of Florida, as the receiving state under the Uniform Reciprocal Enforcement of Support Act (URESA),1 and the State of New York, as the sending state and the real party in interest, had refused to disclose the location of the child. Under these facts, I would hold that the trial judge had inherent authority to suspend the appellee’s payments to the State of New York pending its disclosure of the location of his child, absent a showing of good cause for the refusal to disclose.

The problem of one parent concealing the location of a child from another parent has grown to national proportions. The government should be part of the solution and not add to the problem by lending its authority to compound the difficulties of a parent seeking to locate a missing child.

. Chapter 88, Florida Statutes (1991).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Waugh v. Caren Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996)
    …ort or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.” See also Department of Health & Rehabilitative Services v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992); Frazier v. Frazier, 395 So. 2d 590 (Fla. 2d DCA 1981) (conditioning visitation upon payment of support is improper). Upon remand, visitation rights, if awarded, may not be conditioned upon the payment of child support. With res…
  • State v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996)
    …Manning v. Varges, 413 So. 2d 116, 117 (Fla. 2d DCA 1982). Notice that the court will consider an arrearage does not place a party on notice that the court might modify the child support order. Department of Health & Rehabilitative Servs. v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992). In the instant ease, the mother’s and the father’s notices provided that only the issues of contempt and the arrearage would be considered. They did not give notice that the court could modify the support order. The father argu…
  • Peterson v. Mathies, 687 So. 2d 47 (Fla. 5th DCA 1997)
    …tion for contempt). This court has held that notice that a court will consider a child support arrearage does not place a party on notice that the court might modify the child support order. Department of Health and Rehabilitative Services v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992). REVERSED and REMANDED. COBB and THOMPSON, JJ., concur.…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw