Establishing Child Support Obligation

Section 61.13(1)(a), Florida Statutes, indicates, in a proceeding for dissolution of marriage, “the court may at any time order either or both parents who owe a duty of support to a child to pay support.” As with any hearing, the parties to a child support hearing must have notice and an opportunity to respond.  Either one or both parties may request that the court enter an order for child support in actions for paternity, dissolution of marriage, supplemental petitions for modification, temporary custody by extended family, or petitions for support for children both during and not during marriage. Likewise, the petitioner in a domestic violence action may seek temporary child support from the respondent if the respondent is the legal parent, adoptive parent, or guardian by court order of a minor child or children. See §§741.30(6)(a)(4), 61.13(1)(a), 39.402(11)(a), Florida Statutes; Florida Supreme Court Approved Family Law Form 12.980(a), section VI, paragraph 3. In cases with self-represented litigants, the parties may fail to address child support and the judge should inquire about the parties’ intentions regarding child support to bring the matter to their attention so it can be properly addressed. Many child support hearings also involve cases in which the parents are not married and paternity has already been established.  

In successful modification actions, the parent awarded the majority of the timesharing may seek retroactive child support back to the filing date of the supplemental petition for modification.  In fact, it is error for the court to fail to award support from the date of the petition for modification “where the need for the support and the ability of the parent to pay existed at the time the petition was filed.”  Young v. Young, 745 So. 2d 1074 at 1076 (Fla. 4th DCA 1999).  See also Nierenberg v. Nierenberg, 758 So. 2d 1179 (Fla. 4th DCA 2000).  A court cannot however, award retroactive child support in a modification action prior to the filing date of the petition.  See Anderson v. Anderson, 609 So. 2d 87 at 88 (Fla. 1st DCA 1992) and Wertheim v. Wertheim, 667 So. 2d 331 (Fla. 1st DCA 1995).  

However, if the court is being presented with an initial petition to establish child support, it has discretion to order retroactive child support even before the date of the filing of the petition.  Pursuant to §61.30(17), Florida Statutes:  "In an initial determination of child support, … the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.”   

The section goes on to provide certain areas of inquiry required before the court should award such retroactive child support. There are a number of times when a court hearing a dependency case must make findings related to child support.  The first instance will be at the shelter hearing pursuant to §39.402(11), Florida Statutes, which indicates: "If a child is placed in a shelter pursuant to a court order following a shelter hearing, the court shall require in the shelter hearing order that the parents of the child … to pay, to the department or institution having custody of the child, fees as established by the department. …  The shelter order shall also require the parents to provide to the department and any other state agency or party designated by the court, within 28 days after entry of the shelter order, the financial information necessary to accurately calculate child support pursuant to s. 61.30."   

Next, pursuant to §39.6011(4)(d), Florida Statutes, one of the required elements of the case plan for parents of a child who is in an out-of-home placement is a description of the  parent’s financial support obligation to the child, including health insurance. Likewise, in the dispositional order in a dependency case, the court shall make determinations regarding child support if the child is in an outof-home placement pursuant to §39.521(1)(d)7, Florida Statutes.       

Whether the child is placed in shelter care, foster care, with a relative caregiver, or with a non-offending parent, both parents have a continuing obligation to support the child and must be ordered to pay such child support accordingly.   

When properly managing cases in the family division, related cases will be identified either through inquiry of the parties or through a search of related cases by the case manager.  When the court is aware of what cases a family has pending, the judge will be able to use the best method for establishing child support.   

The primary focus of domestic violence matters is dealing with the violence between the parties.  Though the court must address the questions of timesharing and child support in these cases, the domestic violence forum is not designed for establishing permanent child support obligations.  In O’Neill v. Stone, 721 So. 2d 393, 396 (Fla. 2d DCA 1998) the court noted, “This case is a perfect example of why domestic violence proceedings should not be allowed to become the primary forum in which custody, visitation and support issues are litigated.”  The court went on to say:

The better practice in such a case would be for the trial court to enter a temporary order … and direct the parties to litigate their subsequent custody and visitation disputes in a proper paternity proceeding where the orders entered would remain in effect beyond the temporary lifespan of most injunctions. Id.   

The court’s holding exemplifies why §741.30(6)(a)4, Florida Statutes and Fla. Fam. L.R.P. 12.610(c)(1)(C)(v), provide for establishing temporary time-sharing and support for any minor child or children connected with the proceedings. 

Dissolution of marriage, paternity, child support and time-sharing cases inherently deal with matters pertaining to the entire family, even when the parents are not legally married. This forum is better equipped to completely hear issues relating to the calculation and award of child support on a permanent basis.  Section 61.30, Florida Statutes, is clearly the authority for calculating and awarding child support regardless of the forum in which the issue arises.

Lastly, §741.30(1)(c), Florida Statutes, says, “In the event a subsequent cause of action is filed under chapter 61, any orders entered therein shall take precedence over any inconsistent provisions of an injunction issued under this section which addresses matters governed by chapter 61.”  With respect to this section, the court in Spano v. BB ex rel. Bruce, 947 So.2d 635, 636 (Fla. 3d DCA 2007) stated:  domestic violence proceedings should not be allowed to become the primary forum in which custody, visitation and support issues are litigated.”(Citation omitted.) Instead, where custody, visitation and support considerations are implicated in the context of alleged domestic violence, the better practice is for the trial court to enter a temporary order under Chapter 741 while directing the parties to litigate custody and visitation matters in family court. 

This indicates that the court hearing a dissolution proceeding or other proceeding involving the family is the preferred forum for establishing permanent obligations of child support. 

When properly managing cases in the family division, related cases will be identified either through inquiry of the parties or through a search of related cases by the case manager.  When the court is aware of what cases a family has pending, the judge will be able to use the best method for establishing child support.   

The primary focus of domestic violence matters is dealing with the violence between the parties.  Though the court must address the questions of timesharing and child support in these cases, the domestic violence forum is not designed for establishing permanent child support obligations.  In O’Neill v. Stone, 721 So. 2d 393, 396 (Fla. 2d DCA 1998) the court noted, “This case is a perfect example of why domestic violence proceedings should not be allowed to become the primary forum in which custody, visitation and support issues are litigated.”  

The court went on to say: "The better practice in such a case would be for the trial court to enter a temporary order … and direct the parties to litigate their subsequent custody and visitation disputes in a proper paternity proceeding where the orders entered would remain in effect beyond the temporary lifespan of most injunctions." Id.   

The court’s holding exemplifies why §741.30(6)(a)4, Florida Statutes and Fla. Fam. L.R.P. 12.610(c)(1)(C)(v), provide for establishing temporary time-sharing and support for any minor child or children connected with the proceedings. 

Dissolution of marriage, paternity, child support and time-sharing cases inherently deal with matters pertaining to the entire family, even when the parents are not legally married. This forum is better equipped to completely hear issues relating to the calculation and award of child support on a permanent basis."  Section 61.30, Florida Statutes, is clearly the authority for calculating and awarding child support regardless of the forum in which the issue arises.  

Lastly, §741.30(1)(c), Florida Statutes, says, “In the event a subsequent cause of action is filed under chapter 61, any orders entered therein shall take precedence over any inconsistent provisions of an injunction issued under this section which addresses matters governed by chapter 61.”  With respect to this section, the court in Spano v. BB ex rel. Bruce, 947 So.2d 635, 636 (Fla. 3d DCA 2007) stated:  

domestic violence proceedings should not be allowed to become the primary forum in which custody, visitation and support issues are litigated.”(Citation omitted.) Instead, where custody, visitation and support considerations are implicated in the context of alleged domestic violence, the better practice is for the trial court to enter a temporary order under Chapter 741 while directing the parties to litigate custody and visitation matters in family court. 

This indicates that the court hearing a dissolution proceeding or other proceeding involving the family is the preferred forum for establishing permanent obligations of child support. 

Florida Statutes provide authority for the dependency court to issue child support orders, but do not provide authority to award credit toward arrearages. In fact, awarding credit toward child support arrearages – irrespective of the forum – is generally not accepted practice in Florida. There may, however, arise special circumstances in which equitable considerations would warrant a setoff. 

The issue of credit toward child support arrears has come up most frequently in domestic relations cases where there is a general rule against reducing child support obligations retroactively or forgiving arrearages. Fausnight v. Teasdale, 803 So. 2d 800 (Fla. 5th DCA 2002). This rule is due to the fact that child support obligations are the “vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification.” Onley v. Onley, 540 So. 2d 880 (Fla. 3rd DCA 1989) (citing Pottinger v. Pottinger, 133 Fla. 442 (1938)). 

In Puglia v. Puglia, 600 So. 2d 484, 485 (Fla. 3rd DCA 1992), the non-custodial father “sought credits for weeks the child resided with him. Although the father could have sought  modification of the child support order in advance, he did not do so. Having failed to do so, it is too late to seek this remedy retroactively.” The court explained that “child support payments may be modified only prospectively through a modification of the child support agreement. … Credits towards child support arrearages have the appearance of a retroactive modification, and if so, constitute error.” Id. However, if the dependency judge changes custody or placement of the child but does not address child support in that ruling, an argument may be made that child support should be retroactive to the date of the change in custody or placement and not be limited to the date the petition for child support was filed. 

As a practical matter, the trial court could often deal with this situation by ordering the “new” payor parent to pay monthly child support in the same amount that the “new” parent with the majority of the time-sharing is ordered to repay on the arrearage. The parents will submit their respective payments for the child support and delinquent support arrearages and end up largely or entirely canceling each other out. By requiring both of these payments, the parties and the court will have a record of the payments should there be any dispute in the future. 

However, a departure from the foregoing cases is found in an appellate case involving a paternity and time-sharing matter in which the trial court’s decision to create just this sort of setoff was upheld. In Artuso v. Dick, 843 So. 2d 942 (Fla. 4th DCA 2003) the court awarded the father primary physical residence of the child. The mother was already due child support arrearages totaling $4,900, however, at the time of the final judgment the father was due $5,525 in child support that was retroactive to the time he filed the petition for support. Id. at 945. “Rather than have each party have an arrearage due, the court ‘washed out’ each arrearage.” Id. The court went on to say, “While the mother’s right to her arrearage was vested, the court simply used that award to offset against what would have been her greater obligation of support to the father. We affirm the trial court’s ruling.” Id. 

In situations where the payor paid or overpaid other obligations, such as alimony or mortgage payments, the courts have refused to use those payments as a basis to award credit towards child support arrearages, stating that the payor should petition for modification prospectively. See, e.g. Waldman v. Waldman, 612 So. 2d 703 (Fla. 3d DCA 1993) (error to offset alimony overpayment against past due child support); Jones v. Jones, 689 So. 2d 1264 (Fla. 4th DCA 1997) (error to offset Christmas gifts against child support); DOR v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996) (error to offset payments in the nature of gifts against child support). 

However, the court should also consider the equitable circumstances of the case. In State of Florida, Department of Revenue of Behalf of Pulliam v. Watt, 681 So. 2d 800 (Fla. 2nd DCA 1996) the court indicated that special circumstances existed where the child lived with the payor  father for a period of twenty-one months. The trial court’s order crediting the father for those twenty-one months was upheld. Id. Giving guidance in determining appropriate equitable defenses, the court in State of Florida v. Stanjeski, 562 So. 2d 673, 678 (Fla. 1990) wrote: The following three equitable defenses may be appropriate grounds for   relief: (1) payment--a direct payment is made to the payee because of the exigencies of the family situation or a family emergency; (2) no further obligation to pay support--a minor child reaches majority, marries, enters the armed services, or dies, or a former spouse receiving alimony remarries or dies; or (3) change of custody--a full change of child custody has occurred and the former custodial parent no longer supports the child or retains fiscal obligations relating to the child. There may be other equitable defenses that can be raised based on other types of extraordinary circumstances. We emphasize that the underlying purpose of this process is to assure the payment of child support for the welfare of the child. 

Simply put, while child support arrearages are ordinarily vested in the custodial parent, “payments made for the benefit of the child may, under equitable considerations, entitle that parent to a setoff.” Tash v. Osterle, 380 So. 2d 1316 (Fla. 3rd DCA 1980). Courts have approved credit based on these types of equitable considerations. See State of Florida, Dept. of Rev., v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996) (allowed setoff for payments for rent, food, clothes, utilities, and health insurance after child attained eighteen); Garcia v. Gonzalez, 654 So. 2d 1064 (Fla. 3d DCA 1995) (allowed setoff for payment of housing expenses); Goldman v. Goldman, 529 So. 2d 1260 (Fla. 3d DCA 1988) (payment for college room and board complied with spirit of the child support order); Nolte v. Nolte, 544 So. 2d 1146 (Fla. 2d DCA 1989) (non- custodial parent assumed care after custodial parent permanently expelled the child from the home); Valladares v. Junco-Valladares, 30 So.3d 519 (Fla 3d DCA 2010) (husband’s dependent benefits paid by the social security administration directly to the wife offset husband’s child support obligation.) 

Also note that §61.30(11)(a)2, Florida Statutes, permits adjustment of the minimum child support award based upon the independent income of the child. 

Florida Statutes provide authority for the dependency court to issue child support orders, but are silent as to the specific issue of retroactive support in a dependency case.  Issues relating to retroactive child support, as they have been dealt with in domestic relations cases, are discussed in the first question under this heading.  In that section, it was indicated that the parent who was awarded the majority of time-sharing may only seek retroactive child support back to the filing date of the petition for modification.  In fact, it is considered error for the court not to award support from the date of the petition for modification “where the need for the support and the ability of the parent to pay existed at the time the petition was filed.”  Young v. Young, 745 So. 2d 1074 at 1076 (Fla. 4th DCA 1999).  See also Nierenberg v. Nierenberg, 758 So. 2d 1179 (Fla. 4th DCA 2000).  A court cannot however, award retroactive child support in a modification action prior to the filing date of the petition.  See Anderson v. Anderson, 609 So. 2d 87 at 88 (Fla. 1st DCA 1992) and Wertheim v. Wertheim, 667 So. 2d 331 (Fla. 1st DCA 1995).  It would appear that this line of reasoning could be applicable when these issues arise in a dependency setting. 

While Chapter 39 gives the dependency court authority to decide all matters pertaining to child support, it neither mentions nor requires either parent to file a petition to change custody or child support.  This is a notable difference from dissolution or other matters involving children.  Instead, in dependency, the court’s jurisdiction is invoked when the State files a petition pursuant to §39.013(2), Florida Statutes.  As a result of that petition, the court has jurisdiction to place the child with a non-offending parent and to order the previous custodial parent to pay support.  It follows that the order for child support (if not announced at the time of the change in placement) should be retroactive to the date the State placed the child with the nonoffending parent.   

Additional jurisdictional questions may arise in a circuit following the “one family, one team” model as opposed to the “one family, one judge” model.  Clearly, if all UFC matters are addressed before one judge, there is much less confusion as to which forum should deal with which issue.  In a “one team” setting, if child support was originally ordered in a domestic relations case, and a subsequent dependency arose, then it would appear the domestic relations court would be the more appropriate forum for determining retroactive support while taking into consideration any placement changes that may have been ordered in the dependency action. 

States that have dealt with this issue support a modification of child support during a period of commitment.  The rationale for continuing child support payments even while a child is in a commitment program is that while a child’s needs may change upon commitment, that does not mean that the child has no needs at all. Garver v. Garver, 981 P. 2d 471 (Wyo. 1999).  Clearly, even though a custodial parent would not have the same financial demands for child support when the child is in a commitment facility, there are nonetheless fixed costs such as for housing, transportation, and utilities that would be unaffected or only slightly affected by the child being in an out-of-home placement.   

Florida also has established requirements that parents pay towards the cost of their child’s care when such child is found to be dependent, in need of services, or delinquent and is in the care of a state agency - not just a DJJ commitment facility.  For example, §985.514(1), Florida Statutes, say, “When any child is placed into secure or nonsecure detention care or into other placement for the purpose of being supervised by the department pursuant to a court order following a detention hearing, the court shall order the child’s parents to pay fees to the department…” Likewise, §984.14(6), Florida Statutes, requires the collection of fees related to the care, support, and maintenance of a child in shelter care.  Section 39.521(1)(d)7 requires the disposition order in a dependency case to include the child support obligations of the parents if the child is in an out-of-home placement.  Lastly, §402.33(2), Florida Statutes, requires the assessment and collection of fees established by the Department of Health and Human Services for children who are in the care of the Department or one of its agencies or contractors.  With these required child support obligations or fees for children in out-of-home placements, it follows that any child in the care of the State continues to have needs of support which are the obligations of the parents.  As the court said in Armour, “Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.” Armour v. Allen, 377 So.2d 798 at 800 (Fla. 1st DCA 1979).   

While the change in circumstance resulting from a change in placement from a custodial parent to a state agency may indeed be the basis for a modification of child support, it would not be a sufficient basis to suspend child support obligations altogether.  In deciding the issue of modifying support, §61.30, Florida Statutes, is the controlling authority. 

For a dependency case to close, either the parents have successfully completed a case plan and the child is reunified with the family, the child was reunified with only one parent, the parents’ rights to the child were terminated, or a placement with a fit and willing relative or guardianship placement was made.  If the child is reunified with the parents, then child support would only continue to be relevant at the close of the case if the parties are separated or there is a parent with the majority of time-sharing for some other reason.  In that situation, the dependency matter is truly closed and there seems to be little justification to retain jurisdiction to address future child support issues.  The proper forum to address continuing matters of child support would be domestic relations.  The only reason dependency should be reopened is if abuse, neglect, or abandonment led to a new dependency.  As stated above, however, a fully implemented UFC would have overarching jurisdiction to decide all of these matters without the concerns of forum.  The Supreme Court indicated that UFC jurisdiction should include dealing with matters of child support that are unconnected to a dissolution of marriage case. In re Report of the Family Court Steering Committee, 794 So. 2d 518, 525 (Fla. 2001).  

Similarly, where the child is only reunified with one parent (such as when a parent’s whereabouts are unknown or a single parent TPR) there may be no child support obligation, or, if there is still an obligation of support, then the matter again would best be addressed in a domestic relations forum. 

Where the dependency is closed because parental rights are terminated, and the child has been adopted, there would be no continuing obligation of support. 

When a child is placed with a fit and willing relative or a guardianship, there will certainly be continuing child support obligations and indeed the possibility of continuing issues of which the dependency court may want to be aware.  This scenario may be one in which the dependency court chooses to terminate supervision but retain jurisdiction. 

Lastly, one of the methods already being employed to deal with this issue is the creation of a procedure whereby the clerk automatically creates a new domestic relations case number, at the close of the dependency case, and files therein a copy of the child support order from the dependency case.  This creates a civil case number that the Department of Revenue can use to deal with any enforcement issues that may arise, and it also gives the parties a means to come back before the court to modify child support pursuant to Chapter 61. 

For a dependency case to close, either the parents have successfully completed a case plan and the child is reunified with the family, the child was reunified with only one parent, the parents’ rights to the child were terminated, or a placement with a fit and willing relative or guardianship placement was made.  If the child is reunified with the parents, then child support would only continue to be relevant at the close of the case if the parties are separated or there is a parent with the majority of time-sharing for some other reason.  In that situation, the dependency matter is truly closed and there seems to be little justification to retain jurisdiction to address future child support issues.  The proper forum to address continuing matters of child support would be domestic relations.  The only reason dependency should be reopened is if abuse, neglect, or abandonment led to a new dependency.  As stated above, however, a fully implemented UFC would have overarching jurisdiction to decide all of these matters without the concerns of forum.  The Supreme Court indicated that UFC jurisdiction should include dealing with matters of child support that are unconnected to a dissolution of marriage case. In re Report of the Family Court Steering Committee, 794 So. 2d 518, 525 (Fla. 2001).  

Similarly, where the child is only reunified with one parent (such as when a parent’s whereabouts are unknown or a single parent TPR) there may be no child support obligation, or, if there is still an obligation of support, then the matter again would best be addressed in a domestic relations forum. 

Where the dependency is closed because parental rights are terminated, and the child has been adopted, there would be no continuing obligation of support. 

When a child is placed with a fit and willing relative or a guardianship, there will certainly be continuing child support obligations and indeed the possibility of continuing issues of which the dependency court may want to be aware.  This scenario may be one in which the dependency court chooses to terminate supervision but retain jurisdiction. 

Lastly, one of the methods already being employed to deal with this issue is the creation of a procedure whereby the clerk automatically creates a new domestic relations case number, at the close of the dependency case, and files therein a copy of the child support order from the dependency case.  This creates a civil case number that the Department of Revenue can use to deal with any enforcement issues that may arise, and it also gives the parties a means to come back before the court to modify child support pursuant to Chapter 61.