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for child support arrears in Florida" />
An agreement regarding child support will normally be enforced between the parties. There is generally no time limit on when a party can bring an action to enforce past-due child support, but the other party might be able to raise the defense of laches. In the case Delgado v. Delgado, 3D20-1119 (Fla. 3d DCA May 12, 2021), the court considered a case in which a mother waited until the parties’ child was 40 years old to enforce past-due child support arrears.
In 1989 the parties were divorced by final judgment which ratified a property settlement agreement reached between them. The agreement obligated the former husband to pay $500 per month in child support until the parties’ son turned 18, and required the former husband to fund a trust account for the purpose of paying for the child’s college education. The agreement also contained a clause which stated any modification of the agreement had to be in writing and signed by the parties with the same formalities, and that the failure of either party to insist on strict performance of the terms of the contract was not a waiver of the terms.
The former husband sold property in 2018, a portion of the proceeds of which was required to be placed into trust for the benefit of the parties’ child in accordance with their settlement agreement. The title company held 50% of the funds in escrow while the former wife filed a motion to enforce and for contempt seeking payment of past-due child support, release of the escrow funds to her, and a portion of the profits from the former husband’s business to fund the parties’ son’s trust. The parties’ son was 40 years old by the time the former wife filed this motion.
At a hearing on the former wife’s motion, testimony was presented indicating the former husband admitted to missing six months of payments over 20 years prior, that the former husband bought the parties’ child a $20,000 car when he was 16 and paid the insurance, that the former husband helped pay for the child’s private school, that the now adult child testified he had no plans to go to college, and that although the former husband loaned the former wife and her new husband money, she repaid it to him and never brought up the past-due child support. The funds from a prepaid college fund were also used to pay the adult son’s wedding expenses and to help him buy a house. The trial court eventually in pertinent part ruled the former husband waived the defense of laches to the past-due child support and that the terms of the the trust should be enforced since the parties’ agreement was clear and unambiguous, and there was no waiver of the terms. The former husband appealed.
The appellate court held “We agree with the majority of the trial court’s ruling on the former wife’s exceptions to the General Magistrate’s Report as set forth in the trial court’s Order on Exceptions. As the trial court correctly determined, the parties’ Agreement is clear and unambiguous and has not been modified by the parties. As to child support, the trial court correctly determined that the former husband admitted to not paying child support for a six-month period, and therefore, there is a six-month child support arrearage. Further, the trial court properly determined that the arrearage cannot be set-off by other payments or gifts made while [their son] was a minor based on the reasoning set forth in Onley, as any gifts or payments on behalf of [their son] were unilaterally made without authority of court and did not serve to discharge a duty of support encompassed by the Agreement.”
The appellate court however disagreed with the trial court’s determination that the former husband waived the defense of laches as to the child support arrears. It held that an evidentiary hearing should be held on this issue to determine if former husband met his burden on this claim under the case Ticktin v. Kearin, 807 So. 2d 659, 664 (Fla. 3d DCA 2001), and that “Following the evidentiary hearing, if the trial court determines that the former husband failed to establish the necessary elements to apply laches to the child support arrearage, the trial court, as reserved in its Order on Exceptions, is instructed to adjudicate the six month child support arrearage.” The factors to be considered in determining if the defense of laches applies under the Ticktin case include “(1) conduct by the defendant that gives rise to the complaint; (2) that the plaintiff had knowledge of the defendant's conduct and did not assert the opportunity to institute suit; (3) lack of knowledge by the defendant that the plaintiff will assert the right upon which suit is based; and (4) extraordinary injury or prejudice.”
As to the former husband’s appeal on the issue of funding the trust, the appellate court held “The former husband argues that the Agreement defines the specific intent and purpose of the trust, ‘but also clearly and logically the duration of any obligation.’ We disagree, in part, as the Agreement does not set forth a time limit in which [the parties’ son] must attend college or post-high school education. Despite [the parties’ son] being more than forty years old at this point, the terms of the Agreement are still capable of being fully performed as [the parties’ son] may decide to attend college or pursue post-high school education. Thus, as the trial court ruled, the former wife must open a trust account and the escrowed funds are to be deposited in that account. As stated earlier, [the parties’ son] did not testify as his plans to attend college or pursue any further post-high school education. Thus, on remand, the trial court is instructed to conduct an evidentiary hearing to determine [the parties’ son’s] plans, and thereafter, based on his testimony, ‘address the use of the funds’ as set forth in its reservation of jurisdiction in the Order on Exceptions.”
The passing of time may complicate enforcement or interpretation of your obligations under a final judgment. Schedule a consultation with a Miami family law attorney to understand how to proceed in your case.
