Gardner v. Gardner, 85-547

• Decision Date: 13 August 1986
• Docket Number: No. 85-547,85-547
• Citation: 494 So.2d 500,11 Fla. L. Weekly 1785
• Parties: 11 Fla. L. Weekly 1785 Robert A. GARDNER, Appellant, v. Elinor Chechak GARDNER, n/k/a Elinore Chechak, Appellee.
• Court: Florida District Court of Appeals

Page 500

494 So.2d 500

11 Fla. L. Weekly 1785

Robert A. GARDNER, Appellant, v. Elinor Chechak GARDNER, n/k/a Elinore Chechak, Appellee.

No. 85-547.

District Court of Appeal of Florida Fourth District.

Aug. 13, 1986.

Clarification and Rehearing Denied Oct. 13, 1986.

Gary S. Israel, West Palm Beach, for appellant.

Martin L. Haines III, of Haines & D'Angio, North Palm Beach, for appellee.

HERSEY, Chief Judge.

Robert A. Gardner appeals two orders directing him to satisfy alimony and child support arrearages and to remain current in his payments.

Appellant, husband, and appellee, wife, were divorced in 1983. The final judgment of dissolution of marriage incorporated a separation agreement entered into by the parties in 1982. One of the provisions of that agreement is that the wife would have custody of the parties' two children, Erik and Shana, then aged fourteen and twelve, respectively, and that the husband would have the right to visit with the children "not less than eighty-five days per year...." The agreement also provided for payment of permanent periodic alimony to the wife of $1,800 per month and for child support payments of $1,000 per month per child.

The wife thereafter failed to comply with the provisions of the agreement regarding visitation, resulting in the husband moving to modify the agreement and final judgment in 1984. In reducing the husband's child support obligations from $1,000 per month per child to $300 per month per child, the trial court found, inter alia, that:

The former wife Elinor Chechak Gardner, now known as Elinore Chechak, has taken the position the exercise of child visitation privileges is a matter between the children and their father. She neither encourages or [sic] discourages the relationship, but allows the children to make their own decisions. She is the custodial parent and now resides with the children in the State of New York.

The trial court's order was affirmed per curiam by this court in April 1985. Gardner v. Gardner, 467 So.2d 407 (Fla. 4th DCA 1985).

In January 1985 the wife moved to have the husband held in contempt of court for nonpayment of alimony. She also sought an award of arrearages and continuation of alimony payments. After a hearing before a Domestic Relations Commissioner and review of the file and the commissioner's report, the trial court made the following findings:

1. The Respondent is in arrears in the payment of permanent periodic alimony in the amount of $3,600.00 through January 1, 1985, with the next regular payment due on February 1, 1985.

2. The Respondent testified that he did not pay the permanent periodic alimony for the months of December, 1984, and January, 1985, as he has been unable to visit with the minor child of the parties. The Respondent further testified that the older child has been emancipated and the Petitioner refuses to discuss visitation with the younger child with the Respondent. The Respondent has deposited the sums due for alimony into an escrow account and does not dispute that he had the ability to pay the alimony.

3. The Respondent has previously raised the denial of visitation defense in this case in regards to payment of child support and the Court has entered orders regarding same. The Court finds that any denial of visitation attributable to the Petitioner under these circumstances is not a defense to the nonpayment of alimony.

4. The Respondent is not in contempt of Court, but will be required to satisfy the outstanding arrearages.

The court accordingly ordered the husband to pay the alimony arrearages within ten days and to remain current in his alimony payments. The husband appeals both this order and a later order of the trial court denying the husband's claim that the eldest child, Erik, had been emancipated, and ordering the husband to satisfy child support arrearages and to remain current in his payments.

Two issues are raised in this appeal. First, the husband contends that the trial court erred in holding that denial of visitation is not a defense to an action to enforce payment of alimony. We agree.

The landmark case of Craig v. Craig, 157 Fla. 710, 26 So.2d 881 (1946), involved a situation which is very similar to that presented in the case at bar. Upon the wife's petition for arrearages in alimony, the trial court entered an order to show cause why judgment should not be entered against the husband. The husband asserted as a defense the wife's denial of visitation with the parties' children. The trial court found that this was not a defense to the wife's action and adjudged the husband guilty of contempt, from which he could purge himself only by paying the arrearages.

In reversing the trial court's order, the Florida Supreme Court recognized that "a divorced wife who refuse[s] to permit her child to visit its father, as provided by the decree of divorce, [is] not entitled to the aid of a court of equity in collecting alimony until compliance with the decree." Id. 26 So.2d at 883. The court concluded that the husband had asserted a valid legal defense to the wife's claim which prevented entry of judgment against him. We would note, further, that in refusing to enforce a right to child...