What is the name of your state (only U.S. law)? Florida. My ex-husband is in arrears over $16,850. I filed a motion for contempt/enforcement and a month later he quit his job. I am in Florida. In 2015 he moved to Texas where his girlfriend lived and took a job there, and I was able to have his wages garnished. In addition, based on our consent final order, he is also to pay, in lieu of alimony, after school care/college funds, summer camp, school supplies, extracurricular activities, and half child health insurance and medical bills. He has never paid a dime on any of these since our divorce in 2013 except for one year he paid afterschool care. He used to be a successful commercial real estate broker earning up to $500,000 in commissions and I was a stay at home mother for 7 years and now earn $51,000. When we went through the divorce (which he initiated) he suddenly couldnt earn an income. I got $503 in child support per month for two children, until he moved to Texas and took a $73,000/year regularly paying job (property manager), and then I got a modification and am supposed to receive $1069 per month plus the other amounts listed above. This is my second motion for contempt. A month after I filed my motion for contempt, my ex quit his job in Texas after temporarily breaking up with his girlfriend and moved back to Florida. I submitted evidence that he quit his job from an email he sent me. Upon his return to Florida, he claimed that he was in residential real estate and has not earned a commission. He also vaguely mentioned that he was getting a full time regular job because he wasnt getting commissions, then claimed it didnt work out. He filed a financial affidavit with a petition for modification stating he earns $0 income, but that he had expenses like $820 apartment, $503 car payment, and other living expenses such as cell phone, gasoline, food, utilities, etc. Two months before my hearing, I submitted a request to produce his financial records, emailed him asking who his employer was, both of which he refused to answer. I filed a motion to compel shortly before the hearing. At the hearing on the motion for contempt, I asked him who his employer was and he refused to answer, and whether he was still working in real estate, to which he answered yes, but that he had not earned any commissions. At that point, the magistrate said I was not to ask questions, she would ask the questions, however, she did not follow up. She did ask him how he was paying for his expenses. He said that he had liquidated a 401k of $12,000 and was doing "odd jobs." Right there he was caught in a lie because he claimed he was earning $0. I received the Magistrate's report and recommendation, of which my motion for contempt/enforcement was denied on the basis that he did not have the ability to pay. I am stunned. He quit his job and refuses to provide any financial information. I thought this would be a cut and dried case. Apparently, I was wrong. I wanted to get your perspective. Do I have to prove he earns an income? Can I refile a motion for contempt if I do discover he has a job? I dont understand why the burden is on me when he voluntarily quit his job and refuses to cooperate in producing financial information. The magistrate simply took his word for it and ignored my exhibits (receipts, Florida Disbursement Unit records showing he was in arrears, etc.). Thank you.
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Motion for Contempt/Enforcement Denied
- Thread starter Jcann
- Start date
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Ohiogal
Queen Bee
Yes. If you file contempt and he says he doesn't earn, then YOU need to rebut that. You didn't. You can't refile a motion to get it going back. You can file a NEW motion with NEW allegations however. You needed to be able to rebut his "proof". The fact that you think they just take your word is an issue.
You appeared in proper person (pro se) and the judge wouldn't let you examine the respondent?! That is absolutely absurd. In a sense she has denied you due process of law.
Why don't you file a detailed complaint with the Florida Judicial Qualifications Commission (JQC) *. They aren't going to do much. They seldom do. But it would give you the satisfaction of knowing that the numb skull feeding out of the public trough has been called to the carpet before some of her peers.
Also there is no mention of you having urged the authorities to prosecute the deadbeat piece of it for criminal non support? Have you, and if not, why not?
Another thought is that you reach out to a reporter for the West Palm Beach Post of the name of Andrew Marra. He wrote an article in the Post some time ago criticizing JQC's kid glove treatment of these high office abusers.
As far as your substantive rights you are pretty well shot this time around as an appeal of the decision would be futile. You'd need clear and convincing evidence of the abuse of judicial discretion and there isn't enough on the surface. By that I mean that underneath the surface there is strong indications of bias.
Anyway I think before you make another attempt even with new supporting evidence that you need some professional help.
Good luck. Damn, but these deadbeat s.o.b.'s are loathsome! The ought to hang 'em by their thumbs until they rot. Really! I wouldn't shed a tear if they fed them to the sharks.
__________
[*] FLORIDA JUDICIAL QUALIFICATIONS COMMISSION
Post Office Box 14106 Tallahassee, FL 32317
(850) 488-1581
Also check out the website. You will find a complaint form.
Latigo, yes, I met with an attorney today and he said the same thing about the magistrate not allowing me to question my ex. The magistrate is new and he said she had only been hearing cases for a couple weeks at the time of my hearing. He refused to appeal or file exceptions for me because there's not enough time to work on it (due Monday) so I am just going to file it myself -- I know the odds of me winning are almost nothing, but I have nothing to lose at this point. He said I needed to get better discovery and file another motion for contempt later. I still don't understand why my ex can just quit his job with no accountability to the court and I'm the one who has to prove he can work. I thought that was already established. Thanks for the advice.
Because you are accusing him of choosing to not follow a court order, which may (or may not) be a criminal event. He is still innocent until proven guilty.
I have dealt with similar circumstances with an ex that is now $90k in arrears. Every time I went to court, I had to prove he was capable of work or had work and was choosing to follow the court order to pay child support. In the end, the courts only took away his driver's license, which was immediate reinstated when he filled out 'hardship' paperwork. I know that people do go to jail for non-payment or have other consequences, but I have found with my research, that some states are hesitant to do so when it may interfere with the NPCs ability to pay or it is an interstate case.
I fail to see how your personal experience particularly as a layperson can be enlightening to the OP. But for your information the burden of proof does not necessarily rest with the petitioner.
The burden of showing compliance or the inability to comply can be placed on the respondent by means of an OSC. In which the respondent is ordered to show cause, if any he has, why he should not be held in contempt. The petitioner simply needs to produce competent evidence of non compliance and the burden then shifts to the respondent.
And regarding your amateurish research results that incarceration is disfavored as interfering with the respondent's earning ability. You have complete ignored the common practice in criminal courts as well as quasi criminal contempt of WORK RELEASE!
LdiJ
Senior Member
Courts do not typically use work release in conjunction with child support arrears. They will toss someone in jail for contempt and require them to pay a purge to get out, but they typically do not use work release.
And yes, I am sure that your next reply will be something nasty and insulting since I contradicted you, but I really do not care. You give wrong information all of the time and are corrected by many people, all of the time.
Just Blue
Senior Member
Best comment of the week award goes tooooo**************....Stealth!!!
The magistrate also gave advice to Former Husband when he brought to her attention that he had filed a Supplemental Petition for Modification of Child Support. She looked it up on the docket and said it was unclear, asked him what specifically he wanted, gave him multiple choices, and advised him to go back to Family Court Services and fix it. Does that constitute advice to a pro se party by the magistrate? The only thing I could find was the Florida ABA Model Rule 4.3. Can anyone tell me if there's a Florida Rule under the Rules for Civil Procedures for this? Thanks.
Except for OG, most of us rely on personal experience and/or research. I rely on both.
As LD said, work release is not a common solution. Realistically, it's not cost effective for child support. And while people do go to jail until they pay a purge amount, it is not common, according to what limited statistics are available.
Yes, with an OSC the NPC has to prove their inability to pay. But in most states, that bar is very, very low. People with years of experience and multiple degrees get away with simply saying they are out of work and looking. Even with a seek work order, the courts cannot order someone to work-they can only order them to pay child support. Therefore, it is not difficult for an NPC to at least temporarily (which in court time is years) avoid paying a child support order by working under the table, establishing work habits that make it difficult to garnish their paycheck, or become unemployed. The burden is on the PC to prove the NPC can or is working. Proving someone is working under the table is usually difficult and costly. Showing proof of excessive purchases and valuables is not proof for the courts, despite what the average person thinks. So while an OSC can force the issue, in reality, if the PC wants to have the child support order enforced, they need to prove the person is capable of paying the order.
Ultimately, as has been stated on this board many, many times, if someone wants to avoid paying child support, they will. The courts have limited resources to jail or work release someone for child support. Interstate cases are particularly difficult and will often result in non-payment. No one should rely on child support as a source of income.
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Update
Hello, I wanted to come back and update my situation and get your perspective. After my motion for contempt was denied back in July by the magistrate, I filed exemptions and was granted a hearing. I hired an attorney and on his advice, I withdrew the exemptions and cancelled the hearing and my attorney filed a new motion for contempt requesting a purge of $2,000 plus attorney's fees. In the meantime, the judge denied the motion heard in July. The ex had filed a modification petition for child support in May of this year and never followed up on it or had me served since the magistrate denied my motion for contempt. Once the new motion for contempt was filed and a hearing date set, Ex had me served with his mod petition. For the last couple of months Ex refused to tell me who his current employer is and so I decided he could tell the judge at our hearing. A week before the hearing Ex filed a financial affidavit which is required for his modification petition and it stated who his employer was.
So my attorney assures me Ex will have to pay the $2,000 or go to jail. Ex hasn't paid me a red cent since January and we thought it odd that he was going to walk into the hearing having not paid.
At the hearing the judge walks in and first thing berated my attorney for filing a new motion for contempt since he had denied the other motion from July and said we had no reason to be there and he would refuse to hear the motion. My attorney stated that this was an ongoing situation, that my ex was working and had not paid any child support and that I needed support. He also said we had evidence that he was vastly underemployed. The judge thought for a moment and said "well, I'll hear the motion, but will not make a decision until I hear his (ex's) petitions." He said he wanted to hear them together and the first available date to schedule the trial was Feb. 28th. We're also required to go to mediation. My attorney just said "the judge has decided to go this route." We walked out of there with Ex not having to pay me anything for now.
Is this normal? I have been told by three attorneys that the CP can bring a motion for contempt/enforcement every 30 days that NCP doesn't pay. My original motion was filed in September 2016 and the new one October 2017. One silver lining: I forwarded my existing income withholding order to his employer so hopefully I will start receiving child support, however, after trying to reach his employer by phone for two weeks, his employer's attorney told me that the IWO is not for them because it doesn't list their company name. I explained the statute -- Florida Statute 61.1301(1)e(3) states that the IWO applies to subsequent employers as well (I included the required addendum that stated this). He said I would have to get a new order, blah, blah, or they would not withhold payments. I've requested my attorney deal with them.
Between the magistrates and the judge and now the employer I have had nothing but hostility and push back and I just don't understand it. My Ex has failed for four years to pay the required child support as outlined in the orders and yet, the court treats me like I'm asking for something unethical. I was told in the beginning that getting support would be an uphill battle, but I never thought the courts and the state (don't get me started) would be as much of a challenge as my ex. At this point, I do not have much confidence in the upcoming trial. I feel that no matter how much evidence we have, the court will find a way to side with my ex and my children and I have to suffer.
Hello, I wanted to come back and update my situation and get your perspective. After my motion for contempt was denied back in July by the magistrate, I filed exemptions and was granted a hearing. I hired an attorney and on his advice, I withdrew the exemptions and cancelled the hearing and my attorney filed a new motion for contempt requesting a purge of $2,000 plus attorney's fees. In the meantime, the judge denied the motion heard in July. The ex had filed a modification petition for child support in May of this year and never followed up on it or had me served since the magistrate denied my motion for contempt. Once the new motion for contempt was filed and a hearing date set, Ex had me served with his mod petition. For the last couple of months Ex refused to tell me who his current employer is and so I decided he could tell the judge at our hearing. A week before the hearing Ex filed a financial affidavit which is required for his modification petition and it stated who his employer was.
So my attorney assures me Ex will have to pay the $2,000 or go to jail. Ex hasn't paid me a red cent since January and we thought it odd that he was going to walk into the hearing having not paid.
At the hearing the judge walks in and first thing berated my attorney for filing a new motion for contempt since he had denied the other motion from July and said we had no reason to be there and he would refuse to hear the motion. My attorney stated that this was an ongoing situation, that my ex was working and had not paid any child support and that I needed support. He also said we had evidence that he was vastly underemployed. The judge thought for a moment and said "well, I'll hear the motion, but will not make a decision until I hear his (ex's) petitions." He said he wanted to hear them together and the first available date to schedule the trial was Feb. 28th. We're also required to go to mediation. My attorney just said "the judge has decided to go this route." We walked out of there with Ex not having to pay me anything for now.
Is this normal? I have been told by three attorneys that the CP can bring a motion for contempt/enforcement every 30 days that NCP doesn't pay. My original motion was filed in September 2016 and the new one October 2017. One silver lining: I forwarded my existing income withholding order to his employer so hopefully I will start receiving child support, however, after trying to reach his employer by phone for two weeks, his employer's attorney told me that the IWO is not for them because it doesn't list their company name. I explained the statute -- Florida Statute 61.1301(1)e(3) states that the IWO applies to subsequent employers as well (I included the required addendum that stated this). He said I would have to get a new order, blah, blah, or they would not withhold payments. I've requested my attorney deal with them.
Between the magistrates and the judge and now the employer I have had nothing but hostility and push back and I just don't understand it. My Ex has failed for four years to pay the required child support as outlined in the orders and yet, the court treats me like I'm asking for something unethical. I was told in the beginning that getting support would be an uphill battle, but I never thought the courts and the state (don't get me started) would be as much of a challenge as my ex. At this point, I do not have much confidence in the upcoming trial. I feel that no matter how much evidence we have, the court will find a way to side with my ex and my children and I have to suffer.
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CTU
Meddlesome Priestess
You need to find a new attorney. Seriously - you're all over the place, and your attorney isn't faring much better.
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