Dep't of Revenue ex rel. Thorman v. Holley, 1D11–3089.

• Decision Date: 01 May 2012
• Docket Number: No. 1D11–3089.,1D11–3089.
• Parties: DEPARTMENT OF REVENUE, by and on behalf of Mary A. THORMAN, Appellant, v. Robert G. HOLLEY, Appellee.
• Court: Florida District Court of Appeals

86 So.3d 1199

DEPARTMENT OF REVENUE, by and on behalf of Mary A. THORMAN, Appellant,

v.Robert G. HOLLEY, Appellee.

No. 1D11–3089.

District Court of Appeal of Florida,

First District.

May 1, 2012.

Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.

Kathleen E. Anderson, Pensacola, for Appellee.

PER CURIAM.

The Department of Revenue (DOR), acting on behalf of Mary A. Thorman (the mother), appeals a final order ruling that Robert G. Holley (the father) is no longer obligated to pay any child-support arrearages that he accrued but may not have satisfied. This ruling was based on the doctrines of laches and estoppel, as well as a determination that the father's right to due process was violated by the numerous delays in arriving at a final arrearage amount. Under the circumstances of this case, none of these grounds justify relieving the father of his obligation to pay his past-due child support and the interest that has accrued thereon. Accordingly, we reverse and remand for entry of a final order establishing the amount of arrearages, if any, the father still owes.

As noted by the circuit court, this case has a lengthy and complicated history. The mother and father were divorced in 1984. Under the divorce decree, the father was ordered to pay support for two children. The younger child reached the age of eighteen in 1998. By that time, the father had accrued child-support arrearages of at least $26,626.43. In May 2003, the circuit court, acting on the recommendation of a child support enforcement hearing officer, entered an order providing that the amount of the father's arrearages was $10,552.67. The order notes that the arrearage amount represented the net owed after application of a lump-sum payment from the Social Security Administration of $13,632.00.

In December 2004, DOR filed a motion to establish arrearages. On the same day, the clerk of the circuit court issued a payment record indicating that the father had a credit on his account. At the hearing that followed, DOR advised the hearing officer that there was a mistake in the May 2003 order, as the lump-sum payment from Social Security had never been received. DOR explained that when the parties appeared before the court in the proceedings leading to the May 2003 order, the lump-sum payment was merely anticipated. Understanding that the error in the May 2003 order amounted to a mistake of fact, the hearing officer opined that it was too late to correct the error because more than one year had passed since entry of the order. On February 7, 2005, the circuit court adopted a recommended order stating that DOR's “motion to set aside” the May 2003 order was denied. DOR moved for rehearing ten days later, arguing that the mistake in the May 2003 order was a clerical error.

The court did not rule on the motion for rehearing until December 2006. At that time, the court adopted the hearing officer's recommended order concluding that subtraction of the anticipated lump-sum payment from the father's arrearages was indeed a clerical mistake. The court then found that the interests of justice required that the arrearage issue be revisited, essentially vacating the May 2003 order. The court reserved jurisdiction to determine the amount of the arrearages.

No further action took place in the case until approximately three years later when, in February 2010, DOR filed a motion to establish arrearages. The father moved to dismiss this action, alleging that he had actually overpaid his child-support obligation. At a hearing on the motion to dismiss, the father orally argued that DOR's claim for arrearages was barred by the doctrines of laches and “detrimental reliance.” The motion to dismiss was denied, and the case proceeded to a hearing to establish the amount of arrearages.

The hearing took place in January 2011. At the hearing, the father orally renewed his motion to dismiss, arguing that dismissal was justified by due-process violations he contended had occurred throughout the case. The hearing officer rejected the father's due-process arguments, concluding that no prejudice stemmed from the delays. DOR then presented evidence that the father still owes $11,740.30 in arrearages. To contest this claim, the father presented testimony that he had received official notification in 2004 that his child-support obligation was satisfied. In addition, he testified that the income deduction order associated with this obligation had been lifted and that he had received the certificate showing a credit in his account in December 2004. The father and his current wife further testified that they had relied on these events as indicating that he no longer owed any child-support arrearages. He also presented testimony concerning his financial condition, indicating that he no longer has the ability to pay child-support arrearages.

Ultimately, the hearing officer found that there were outstanding arrearages of $11,740.30 as of January 6, 2011, and submitted a recommended order establishing this amount and denying the father's oral motion to dismiss. The circuit court adopted the order, and the father timely moved to vacate it under Family Law Rule of Procedure 12.491(f). In the motion to vacate, the father asserted that the amount of arrearages the hearing officer found was incorrect and that alleged due-process violations required vacation of the circuit court's order. At a hearing on the motion to vacate, the father argued that his right to due process had been violated by the delay in the determination of the final amount of his arrearages, citing the adage that justice delayed is justice denied. In addition, the circuit court opined that the father's arguments suggested the applicability of the doctrines of laches and equitable estoppel. The circuit court invited the parties to argue these issues and submit memoranda of law on them. DOR participated in this process without objection. After reviewing the parties' arguments, the circuit court acted on the motion to vacate by entering an order concluding not only that the doctrines of estoppel and laches applied but also that DOR's unreasonable delay in seeking an arrearage determination after the vacation of the May 2003 order militated against establishing arrearages in 2011. The court found that the father's circumstances had changed during the period of delay and that he had a right to rely on the representation to him that he did not owe child-support arrearages. DOR appealed this order.

DOR argues that the circuit court erred in three ways: (1) by considering the doctrines of laches and estoppel in the absence of an attempt by the father to plead these issues or prove them at an evidentiary hearing; (2) by applying the doctrines of laches and estoppel without sufficient evidence; and (3) by vacating the final order establishing arrearages on the basis of a violation of due process. We decline to address the first argument because DOR failed to object to the circuit court's consideration of the doctrines at issue, even though it had a clear opportunity to do so. See Matar v. Fla. Int'l Univ., 944 So.2d 1153, 1157–58 (Fla. 3d DCA 2006) (recognizing that the preservation requirement applies even to issues of due process when there has been a clear opportunity to present the argument on appeal to the lower tribunal). DOR provided arguments on the applicability of these doctrines to the facts in the record, without voicing any objection concerning the procedural propriety of taking these doctrines into account. However, we find preserved, reversible error under DOR's remaining arguments.

A trial court's application of the doctrines of either laches or equitable estoppel is reviewed for abuse of discretion, provided that there is competent, substantial evidence for each element of the doctrineapplied. See Sun Cruz Casinos, L.L.C. v. City of Hollywood, Fla., 844 So.2d 681, 684–85 (Fla. 4th DCA 2003) (recognizing the abuse of discretion standard and the requirement of evidentiary support for a finding of estoppel); Cartee v. Carswell, 425 So.2d 204, 206 (Fla. 5th DCA 1983) (finding no abuse of discretion where the trial court found that no equitable principles, including laches, relieved the father of the duty to pay child support); Fla. Dep't of Revenue ex rel. Hewett v. Grant, 913 So.2d 108, 109 (Fla. 1st DCA 2005) (reversing where the evidence was insufficient to support the doctrine of laches); State, Dep't of Revenue ex rel. Dees v. Petro, 765 So.2d 792, 792 (Fla. 1st DCA 2000) (reviewing the application of equitable estoppel for competent, substantial evidence).

Laches has four elements: (1) conduct on the part of the defendant giving rise to the situation of which the complaint is made; (2) failure of the plaintiff to assert his or her rights by suit, even though the plaintiff has had knowledge of the defendant's conduct and has been afforded the opportunity to institute suit; (3) lack of knowledge on the defendant's part that the plaintiff would assert the right on which he or she bases the suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff...