Many of my
clients have to pay child support, like lots of divorced people or people who
have had children with someone that they are no longer in a relationship
with. In some jurisdictions the Circuit
Court has authorized the appointment of child support hearing officers. Unfortunately, the hearing officers in many
cases have greatly overstepped the authority given in the statute, in
attempting to enforce child support obligations.
I frequently
handle child support issues, both in front of judges and also in front of hearing
officers in Jacksonville and the surrounding counties. Under the Florida Statutes, a hearing officer
is authorized to conduct a hearing and make a report and recommendation. The
hearing officer is then to send the recommendation to the Circuit Court Judge
for consideration. There are a number of
things that are very unfortunate about the way the hearings are conducted. Most
obvious to this attorney is that the hearing officers are frequently ordering
that the bailiff (armed courtroom deputy) take the obligor into custody and arrest
him or her and a purge amount is set for their release. After reading the law regarding this
procedure, this is a glaring violation of an individual’s rights. There are few things so precious as our
freedom.
A potential
client came in to see me a few months ago and he was concerned that he would be
arrested at a Department of Revenue hearing that was coming up regarding his
child support obligation. I informed the
client that legally he could not be arrested by a hearing officer, as they were
without authority to do so.
Additionally, I let him know that if he did not have the current ability
to pay the support, he could not be arrested for a civil contempt. Anderson
v. Dept. Of Revenue ex rel. Hamilton, 11 So. 3d 424 (4th DCA 1999). The
potential client decided to represent himself because he could not afford an
attorney, and he believed that because he did not have the ability to pay, he
could handle it himself.
The first
problem is that the hearing officers who are all lawyers (with no exceptions
that I know of) should certainly understand the law. Therefore, they are either intentionally
ignoring the law or else they need to re-read the applicable law that defines
the role of a hearing officer. For the rule, see Florida Family Law Rule 12.491
below.
A civil contempt
is used under Florida law to compel an act that one has the ability to
perform. A criminal contempt is used as
a punishment for disrespecting the court’s authority, as well as for committing
a crime (i.e. violating a domestic violence injunction). When the court finds
someone guilty of failure to pay child support it is a civil contempt that is
remedied by paying a purge amount, which is supposed to be within the person’s
ability to pay. Most people do not know that if they do not have the ability to
pay, the court is not allowed to recommend this remedy, and the judge, not the
hearing officer, must order the arrest before it can be carried out. Although I
had never had a current client that I was representing arrested on child support
payment failures, such an event happened regularly in Duval County, especially
for Pro Se (self-represented) litigants.
After speaking with several attorneys that were in court, I was amazed
at how few lawyers knew that the hearing officer lacked arrest authority.
For the
potential client, it proved to be a mistake for him to handle the case
himself. In his particular case, he had
no idea why his company stopped taking out regular child support payments and
the company refused to inform him of why when he inquired. He received a notice of hearing for contempt
with a date and time to report to the hearing.
In fact, the payments resumed being taken out of his check after a gap,
but he was never able to find out why the gap took place. In any case, as my client told me the story,
the hearing officer hardly let him get a word out and he was arrested before he
could explain the situation. What was
even worse, when I called over to the hearing officer’s judicial assistant,
there was no order (or even a proposed order) for his incarceration. This man has essentially been deprived of his
freedom without any legal authority and without even an order authorizing his
arrest.
I was retained by
someone close to him, about two days after his arrest, and I contacted the
Circuit Court Judge in his division who released him from jail that day
following a motion for immediate release.
The judge’s comments were “this man does not belong in jail, he should
have been ordered to pay $5.00 extra per week to make up the arrearage.” When the judge asked the Department of
Revenue’s attorney if the hearing officer had the authority to authorize the
arrest, his answer was “well, we have been doing this for twenty years.” Tradition does not make something legal. The Department of Revenue later filed for
rehearing, which was denied. Even after all of this, an order was mistakenly issued
about 18 days after this clients arrest and subsequent freedom recommending his
incarceration, determining his present ability to pay. Of course, the judge then signed an order
abating the report after he realized he had inadvertently signed it, since
after reviewing the financial affidavit, there was no way to determine that he
had the present ability to pay the purge.
There is no
substitute for knowledgeable representation and despite many people’s distaste
for attorneys, they really do serve a very important public purpose when they
protect individual freedom.
Florida Family Law Rule 12.491 dictates the use and
authority of Hearing Officers. Rule
12.491(e) provides for the powers and duties of support hearing officers. This section states:
(e) General Powers and Duties. The support
enforcement hearing officer shall be empowered to issue process, administer
oaths, require the production of documents, and conduct hearings for the
purpose of taking evidence. A support enforcement hearing officer does not have
the authority to hear contested paternity cases. Upon the receipt of a support
proceeding, the support enforcement hearing officer shall:
(1) assign a time and place for an appropriate hearing and give
notice to each of the parties as may be required by law;
(2) take testimony and establish a record, which record may be by
electronic means as provided by Florida Rule of Judicial
Administration 2.535(g)(3);
(3) accept voluntary acknowledgment of paternity and support
liability and stipulated agreements setting the amount of support to be paid;
and
(4) evaluate the evidence and promptly make a recommended order to
the court. Such order shall set forth findings of fact.
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