Heath v. Killian, 88-1988

• Decision Date: 15 November 1989
• Docket Number: No. 88-1988,88-1988
• Parties: 14 Fla. L. Weekly 2648 John Richard HEATH, Appellant, v. Kathleen KILLIAN and the State of Florida, Department of Health and Rehabilitative Services, Appellees.
• Court: Florida District Court of Appeals

Page 410

556 So.2d 410

14 Fla. L. Weekly 2648

John Richard HEATH, Appellant, v. Kathleen KILLIAN and the State of Florida, Department of Health and Rehabilitative Services, Appellees.

No. 88-1988.

District Court of Appeal of Florida,

First District.

Nov. 15, 1989.

Clyde M. Collins, Jr., Jacksonville, for appellant.

Joseph R. Boyd of Boyd & Branch, Tallahassee, Chriss Walker, Dept. of Health and Rehabilitative Services, Tallahassee, for appellees.

SMITH, Judge.

Heath appeals an order and judgment finding him in contempt of court, sentencing him to thirty days in the county jail with provision for his release upon payment of a purge amount, and ordering further biweekly payments of $75.00 on the first and fifteenth of each month in payment of arrearages of several thousand dollars unpaid child support. Appellant asserts error (1) in the trial court's finding of his financial ability to pay and (2) the amount of the arrearage found by the court.

Although appellant paid the initial purge amount and secured his release from jail, it is apparent that the trial court's order is continuing in nature, so that appellant faces the prospect of imprisonment for any future violation. We find error and reverse.

Upon our initial review, we noted that at the time of the contempt order and finding of arrearages both children for whom the support payments had been ordered had reached their majority. Accordingly, jurisdiction of the trial court to enforce the award by contempt appeared questionable, and we ordered supplemental briefing on the issue, referring the parties to this court's prior decisions in Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. denied, 247 So.2d 437 (Fla.1971) (enforcement of payment of child support orders by contempt is not permitted after child reaches majority); and State ex rel. Sipe v. Sipe, 492 So.2d 679 (Fla. 1st DCA 1986), rev. dismissed, 492 So.2d 1331 (Fla.1986).

In their supplemental brief, appellees cite to the court legislative amendments post dating our Sipe decision whereby it was declared to be the legislative intent that Florida's Uniform Reciprocal Enforcement of Support Act (URESA) "is an appropriate statute under which to collect child support arrearages after the child is no longer dependent." Ch. 87-95, § 6, Laws of Fla.; § 88.012, Fla.Stat. (1987). Appellees argue that since URESA provides, in Section 88.101, that arrearages of child support are enforceable by contempt after the child is no longer dependent, no rule restricting use of the contempt remedy can consistently be applied when the civil contempt proceeding is an ordinary civil action between parties located in this state.

As for appellees' argument that it would be illogical to give URESA claimants greater enforcement rights than would be available to non-URESA claimants, we do not agree with appellee...