ROLAND ROCHETTE, APPELLANT,
v.
DEBORAH ROCHETTE, APPELLEE

Fla. 2d DCA | 1998-11-25
No. 98-00545
PATTERSON, A.C.J., NORTHCUTT, J., and DANAHY, PAUL W., Senior Judge, Concur.
722 So. 2d 236 Florida District Court of Appeal, Second District (1998)

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Synopsis

Roland Rochette appealed a trial court order directing execution against him for $60,000 to secure prepayment of child support obligations during his federal prison sentence. The Florida District Court of Appeal reversed, holding that execution cannot issue without an underlying monetary judgment and that the trial court lacked statutory authority to order execution based on an unposted bond.


Holding

Execution may not issue absent an underlying monetary judgment. Section 61.18(3) does not apply where no bond was posted and therefore does not authorize execution for an unposted bond. However, the trial court may consider alternative remedies such as sequestering assets or real property to secure future child support obligations.


Headnotes

[1] Execution may not issue in the absence of an underlying monetary judgment.

[2] A statute authorizing execution upon breach of a bond does not apply where no bond was posted.

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Key Quotes

“Section 61.18 covers situations where there was a breach of a condition of a bond posted to ensure the payment of child support or alimony. It does not apply where no bond was posted. Therefore, the trial court was not authorized, pursuant to section 61.18(3), to order that execution issue for the amount of the unposted bond.”

Establishes the core holding that the trial court lacked statutory authority to order execution based on an unposted bond.

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Facts & Procedural History

In March 1997, the trial court entered a supplemental final judgment of dissolution of marriage and later ordered Roland Rochette to post a $60,000 su…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Roland Rochette challenges the order of the trial court directing that execution shall issue against him for the amount of $60,000. Mr. Rochette argues that execution may not issue in the absence of an underlying monetary judgment. We agree.

In March of 1997, the trial court entered a supplemental final judgment of dissolution of marriage in which it stated that it would, at a later date, hear argument regarding its in tent to require Mr. Rochette to liquidate sufficient assets to prepay his child support obligation for the remaining seven years of his federal prison sentence. Following the hearing, the trial court entered an order requiring Mr. Rochette to post with the clerk of court a surety and/or fidelity bond for $60,000 to ensure the payment of future child support. The order further stated that if Mr. Rochette did not post the bond within thirty days of the date of the order, the trial court would, without further notice, issue execution against the husband for $60,000 in accordance with section 61.18(3), Florida Statutes. Mr. Rochette did not post the bond, and upon motion of the former wife, Deborah Rochette, the trial court rendered an order which, among other things, directed that execution issue in accordance with the provisions of the prior order. Mr. Rochette filed a petition for prohibition, or, in the alternative, a petition for writ of certiorari challenging that portion of the order directing execution. This court treated the petition as an appeal from a non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) and stayed execution pending the outcome of the appeal.

Section 61.18 covers situations where there was a breach of a condition of a bond posted to ensure the payment of child support or alimony. It does not apply where no bond was posted. Therefore, the trial court was not authorized, pursuant to section 61.18(3), to order that execution issue for the amount of the unposted bond. Furthermore, the trial court could not authorize execution against Mr. Rochette’s personal or real property without Ms. Rochette first obtaining a judgment against him. See Houstoun v. Houstoun, 645 So. 2d 1113 (Fla. 3d DCA 1994). In this case, because Mr. Rochette is already incarcerated, the institution of contempt proceedings against him for failure to post the bond may be futile. The trial court may, however, upon proper application, consider sequestering Mr. Rochette’s assets, or any real property owned by him, in order to secure his future child support obligations. See Held v. Held, 617 So. 2d 358 (Fla. 4th DCA 1993)(sequestering former husband’s share of equity in marital home to ensure payment of future child support not abuse of discretion); Gill v. Gill, 504 So. 2d 67 (Fla. 2d DCA 1987)(no abuse of discretion to sequester former husband’s assets to ensure future payment of alimony, child support and medical insurance for the minor child).

Accordingly, we reverse that portion of the trial court’s order which directs that execution shall issue in the amount of $60,000.

PATTERSON, A.C.J., NORTHCUTT, J., and DANAHY, PAUL W., Senior Judge, Concur.


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