Diaz v. Diaz
| Decision Date | 11 August 2011 |
| Docket Number | No. 3D09–2854.,3D09–2854. |
| Citation | 66 So.3d 983 |
| Parties | Sonia Edda DIAZ, Appellants,v.Juan DIAZ, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Bofill & Vilar, and Jose C. Bofill, for appellant.Orshan & Fajardo and Eliot R. Weitzman and Jamie Segal Davis, for appellee.Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.RAMIREZ, C.J.
Sonia Edda Diaz appeals the trial court's order granting Juan Diaz's motions for contempt, as well as the income deduction orders. Because we find that the court awarded attorney's fees for work not limited to the securing or collection of child support, we reverse.
The court dissolved the parties' marriage on December 7, 1995. Following the divorce, both parents shared parental responsibility of their child, with the mother designated as the primary residential parent, but in January 2007, the court transferred this designation to the father. In September 2007, the trial court adopted and ratified a proposed modification to the timesharing agreement. Under the modified agreement, neither party was required to pay child support to the other. Rather, both parties would pay their respective shares for such services as the parenting coordinator, the child's psychologist, and the child's tutor (66.67% by the father and 33.33% by the mother).
Because our decision is a matter of statutory interpretation, it is not necessary to recite all the events that led up to this appeal. We will discuss only the orders under appeal.
The first order is an Amended Income Deduction Order. This order requires that sixty percent (60%) of the mother's income be deducted from her paycheck to satisfy ongoing child support, arrearages, and attorney's fees and costs. The second is an Order Granting Father's Motions for Contempt. This order held the mother in civil contempt for her failure to follow the court's previous orders. Additionally, it warned her that should her failure to pay child support continue, the court would find her in criminal contempt. The third, and last, order on appeal is the Amended Order Granting Father's Motions for Contempt. This order is similar to the previous Order of Contempt, except that it requires that additional payments be made to the Guardian Ad Litem.
We first address whether section 61.1301, Florida Statutes (2010), was the appropriate vehicle for the collection of attorney's fees incurred by the father in this case. Section 61.1301(1)(a), states in relevant part that “[u]pon the entry of an order establishing, enforcing, or modifying an obligation for alimony, for child support, or for alimony and child support, other than a temporary order, the court shall enter a separate order for income deduction if one has not been entered.” The statute continues in section (b)(1), “[t]he income deduction order shall ... [d]irect a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor's support obligation including any attorney's fees or costs owed and forward the deducted amount pursuant to the order.”
Because section 61.1301 is in derogation of the common law, it must be strictly construed. See Spalding v. Spalding, 813 So.2d 1078, 1079 (Fla. 4th DCA 2002). We interpret section 61.1301(1)(a) as authorizing an income deduction order to collect attorney's fees incurred as a result of securing and collecting child support and/or alimony. This does not mean that any time an individual brings an action to secure and collect support or alimony, any and all attorney's fees can be automatically folded into the income deduction order. See Nash v. Nash, 688 So.2d 428, 429 (Fla. 3d DCA 1997) ().
Although we recognize that a portion of the attorney's...
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