What Are the Notice and Due Process Requirements for Child Support-Related Civil Contempt Motions?
When a party is ordered to pay child support by a Florida court, willful disobedience and failing to make child support payments can be grounds for contempt. The consequences for civil contempt can range from extensive fines to jail time, but these consequences arise only if a motion for civil contempt is filed.
This is arguably the most often used path to receive child support payments from a delinquent or non-paying parent who is in violation of a court order. Even so, a non-paying parent must receive notice of the motion in a way that satisfies existing Florida law and due process requirements.
Florida Rules on Motions for Civil Contempt
According to Rule 12.615(b) of the Florida Family Law Rules of Procedure, a motion for civil contempt based on child support non-payment must:
- Recite essential facts that show why the actions alleged are contemptuous in nature
- Provide notice to the person alleged to be in contempt, giving said person the opportunity to be heard
- Provide notice that specifies the time and place of a hearing that includes specific language detailing the consequences of a failure to appear at the hearing
A recent appellate case demonstrates how these requirements and similar legal processes can lead to interesting developments in Florida case law.
Legislative Authority and Due Process in Child Support Non-Payment Proceedings
In a recent 4th District appellate case, the Department of Revenue (DOR) appealed a trial court denial of the DOR’s motion for civil contempt based on child support non-payment in 28 separate, unrelated cases.
For all 28 cases, however, the trial court’s denial was based on what the trial court believed was an insufficient process of serving notice. The facts of the case show that the DOR attached a certificate of service representing that a copy of the motion was served to the non-paying parents by regular US mail. Importantly, the DOR also included the language detailing the consequences of a failure to appear as required by Rule 12.615(b) of the Florida Family Law Rules of Procedure.
Ultimately, all 28 appellees did not make their required appearance at the hearing, at which point the hearing officer present granted the DOR’s motion for contempt in all 28 cases. The trial court found that, even though Florida law permitted such an outcome, providing notice by mail was constitutionally inadequate.
The 4th District Finds That Serving Notice by Mail for Child Support Non-Payment Is Sufficient and Meets Due Process Requirements
The 4th District court disagreed with this reasoning and reversed the trial court’s denial on appeal. The 4th District cited the aforementioned requirements of Rule 12.615(b) as well as Florida Rule of Judicial Administration 2.516(b)(2). This rule effectively states that serving a party who does not designate an e-mail address by mailing it to the party or their lawyer at their last known address is acceptable. Moreover, the service by mail is considered complete upon mailing.
Based on these two rules, service by mail is acceptable for a civil contempt motion based on a failure to pay child support. This finding is reinforced by the 1980 5th District case of Pennington v. Pennington. Further, the court also found that the trial court’s concerns regarding the constitutionality of existing Florida statutes were misguided.
In summary, then, the DOR is completely justified when sending a contempt motion copy and a hearing notice to an appellee’s last known address when language required by Florida law is included.
If you have any questions about civil contempt motions for a failure to pay child support, contact The McKinney Law Group for a legal consultation.
If you have questions regarding a divorce attorney (Tampa, Florida), or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected]