Posted by Nydia Streets of Streets Law in Florida Child Support

What is a delayed income withholding order in Florida? Parties can agree that child support may be paid directly from one parent to the other, rather than payments being processed through the state’s Central Depository. They can also agree that a delayed income withholding order is entered that specifies if a parent is ever late on making payment, the income withholding order will go into effect so that direct payments are cancelled and the Central Depository monitors payments. This was an issue in the case M.D. v. T.T., 2D22-2335 (Fla. 2d DCA July 21, 2023).

In this paternity case, the parties originally agreed to a graduated parenting plan with gradually reducing child support to account for the father’s increased time-sharing. The agreement stated payment would be made directly to the mother but an income withholding order would be entered in the event the father was 10 days or more late in making payment. The father later filed a petition to modify the parenting plan and child support, requesting sole parental responsibility and majority time-sharing. This petition was resolved by a stipulation entered by the parties wherein the child support was waived based on the father’s representation that his income had changed. The father did not provide any proof of his changed financial circumstances to the mother.

Over a year after an order was entered ratifying the stipulation, the mother moved to reinstate child support and to determine retroactive support. She alleged she had been pressured by the father to sign the stipulation. A hearing was held before a general magistrate who did not find the mother’s claim of coercion to be credible because she filed her motion shortly after the father denied her request to relocate. While the mother pointed out the father’s contribution of $36,000 to his retirement account as proof that he had underreported his income, the magistrate disagreed and speculated as to explanations for this without requiring proof from the father. Ultimately, however, the magistrate found the issue was moot because the parties’ attempt to abate child support previously was void and the father’s obligation never stopped. Therefore, the magistrate ordered that he pay the last amount ordered before the stipulation was signed and set an arrears amount. Subsequently, the mother filed a motion for contempt, alleging the father failed to pay the support and monthly arrears amount in full. She also requested the entry of an income withholding order, in light of the father’s late payment and his disparaging remarks to her by text message when letting her know where to pick up payment. The mother also sought attorney’s fees and costs based on the prevailing party provision of the parties’ settlement agreement.

The general magistrate denied the mother’s motion, holding “(1) the Father's testimony that he believed the two payments of $431.99 were the correct amount due was credible and the Father did not accurately read the prior order with the correct monthly support amount; (2) the Father, upon receiving the request from the Mother's counsel to pay the missing support amounts for January through March, made those payments by March 7, 2022, thereby falling within the ten-day deadline of the parties' Agreement pertaining to entitlement to the income deduction order; (3) therefore, the Mother was not entitled to an income deduction order pursuant to the Agreement; (4) the court was not ‘obligated’ to enter an income deduction order pursuant to section 61.1301(a)(1), Florida Statutes (2022), because its order was not one ‘establishing, enforcing, or modifying’ child support; (5) the magistrate was not convinced an income deduction order would resolve the acrimony between the parties and the Mother should just accept the Father's ‘offer’ to pay the monthly support via electronic transfer; (6) despite an earlier court order that the Father should pay the support on the first of each month, the parties had not established a due date, and because the Father testified that he typically paid within the first ten days of each month and as long as the payment was made ‘monthly,’ the Father was complying with the Agreement and trial court's order; and (7) the Father was the ‘prevailing party’ with regard to entitlement to attorney's fees in the Agreement.” The mother appealed after her motion to vacate was denied.

First, the appellate court addressed the delinquency of the father’s payment and whether or not the mother was entitled to an income withholding order. The court found error in the determination that the father was not delinquent because this contradicted the court’s earlier ruling that the waiver or abatement of child support the parties stipulated to before was invalid. Therefore, the father was more than 10 days delinquent in making payment where he had not paid child support for 2 years after he filed his petition for modification. The court held “Furthermore, the magistrate's declaration that there might be a ‘perfectly reasonable explanation’ for the Father's $36,000 contribution to his retirement account in a single year is not supported by the evidence. Hypothetical or speculative explanations do not satisfy the competent substantial evidence standard.”

The appellate court continued “The finding that the Father was not delinquent in his 2022 child support payments because there was not a specific ‘due date’ is also unsupported by the record. Notwithstanding the fact that the December 2021 order specified that the Father was to make payments on the first of each month, the Father's own payment history indicates that he believed the first of each month to be the ‘due date,’ as his payments in 2022 were all on the first of each month. The magistrate did not elaborate whether the Mother is expected to wait for an entire month to pass before deeming a payment "late," but that would seem contrary to the purpose of child support, which arises from a parent's legal duty to provide for the daily needs of minor children.” The court concluded “the finding that an income deduction order is unnecessary because the Father is self-employed and handles his own payroll is irrelevant to the determination of entitlement. These considerations are not mentioned in section 61.1301 as being grounds for determination of one's entitlement. The statute is clear that the default is that an income deduction order be entered upon the entry of an order establishing or modifying child support, unless the parties agree otherwise and good cause is shown via the trial court's findings.”

The case was remanded with instructions to enter an income withholding order and reversal of the award of attorney’s fees to the father. Schedule your consultation with a Miami family law attorney to understand how the law may apply to the facts of your case.