Helmick v. Helmick

• Decision Date: 08 September 1983
• Docket Number: No. 82-562,82-562
• Citation: 436 So.2d 1122
• Parties: Roy A. HELMICK, Appellant, v. Elizabeth M. HELMICK, Appellee.
• Court: Florida District Court of Appeals

Page 1122

436 So.2d 1122

Roy A. HELMICK, Appellant, v. Elizabeth M. HELMICK, Appellee.

No. 82-562.

District Court of Appeal of Florida,

Fifth District.

Sept. 8, 1983.

Leon B. Cheek, III, Altamonte Springs, for appellant.

Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for appellee.

ORFINGER, Chief Judge.

This is an appeal from an order requiring appellant (former husband) to provide support to his former wife under the provisions of chapter 88, Florida Statutes (1981), the Uniform Reciprocal Enforcement of Support Act (URESA). We affirm.

This action commenced as a petition to enforce alimony and child support not connected with a dissolution of marriage. The wife, residing in Maryland, instituted the action under URESA, and it was transmitted to the circuit court of Orange County. During the pendency of this action, the appellant and the appellee obtained a Maryland divorce wherein appellant was required to pay, as alimony, $180 per month to appellee. The Orange County action was subsequently transferred to Seminole County, appellant's county of residence.

After several hearings before a domestic relations commissioner, the former husband filed a petition to modify the Maryland judgment insofar as it awarded alimony, contending that the judgment had been registered under the provisions of section 88.321, et seq., Florida Statutes (1981), and that the Florida court now had jurisdiction to modify the award based on changed circumstances. The Department of Health and Rehabilitative Services was ordered to appear in the action and argued that the Maryland judgment had not been registered. At the final hearing before the commissioner, it was found that the former husband had the ability to comply with the alimony award, that the Maryland judgment had not been registered in Florida, and that the court had no jurisdiction to modify the Maryland judgment. The commissioner recommended that the former husband be required to pay the support award of $180 per month and that he make up certain arrearages. The trial court specifically adopted the commissioner's findings and ordered appellant to comply with the award recommended by the commissioner.

The appellant first contends that URESA, section 88.081, et seq., Florida Statutes (1981), applies only to child support and not to alimony. Florida's URESA has been construed to apply to alimony as well as child support. See, e.g., Thompson v. Thompson, 93 So.2d 90 (Fla.1957); Friedly v. Friedly, 303 So.2d 50 (Fla. 2d DCA 1974). Appellant contends, however, that the 1979 amendment to the statute now indicates a contrary legislative intent. He refers to section 88.012, which says, in part:

Common-law and statutory procedures governing the remedies for the establishment and enforcement of orders of support for children by responsible parents under the Uniform Reciprocal Enforcement of Support Act have not proven sufficiently effective or efficient to cope with the increasing incidence of establishing and collecting child-support obligations when the petitioner and respondent reside in different states.... (emphasis added).

Appellant contends that by this passing reference to child support only, the legislature intended URESA to only apply to child support and to no longer apply to alimony. However, if this was the legislature's intent in reenacting URESA, it should have clearly expressed this intent by providing new definitions. Section 88.012 is the only section in the entire act which emphasizes child support. Nowhere else is it even attempted to distinguish between alimony and child support or any other type of support. In fact, section 88.031(3) defines "duty of support" to mean:

A duty of support whether imposed or imposable by law or by order, decree, or judgment of any court, whether interlocutory or final or whether incidental to an action for dissolution of marriage, separation, separate maintenance, or otherwise, and includes the duty to pay arrearages of support past due and unpaid.

and section 88.031(19) defines "support order" as:

any judgment, decree, or order of support in favor of a petitioner, whether temporary or final or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered.

If the legislature had meant to distinguish between child support and alimony it would have defined this term, especially in light of previous judicial interpretation applying URESA to alimony awards. Therefore, the trial court did not err in applying URESA to alimony support.

Appellant next contends that the trial court erred in rejecting his petition to modify the support award, contending that the Florida courts have jurisdiction to modify a foreign support order when it is registered here under the provisions of section 88.321, et seq., Florida Statutes (1981). The commissioner's last report found that the Maryland support order had not been registered in Florida, and the trial court adopted this finding. Appellant points to nothing in the record to rebut that finding. Therefore, we do not find the issue raised by appellant to be properly before us. Since the trial court found that the support order had not been registered and that finding cannot be successfully attacked, anything we would say about the power (or abuse of power) of the trial court to modify a registered support order would be dictum, and we leave that question to be determined in a case which squarely presents the issue.

There appears competent substantial evidence to support the trial court's findings and we find no abuse of discretion in the enforcement of the order of support.

The judgment of the trial court is AFFIRMED.

COBB, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially:

This case involves (1) the enforcement in Florida under section 88.081-88.331, Florida Statutes (1981), of the Uniform Reciprocal Enforcement of Support Act (URESA) of a husband's duty to support, in the absence of a prior order of support, a wife residing in a foreign state, (2) the enforcement of a foreign support order registered under sections 88.321-88.371, Florida Statutes (1981), and (3) the authority and jurisdiction of a Florida court to "modify" a registered foreign support order.

In 1976 appellee, a then undivorced wife, initiated in Maryland where she resided, a URESA proceeding for child support and alimony unconnected with the dissolution of marriage. The proceeding was sent for prosecution to Florida, as responding state, where the then husband-father (obligor) resided. The obligor's counsel was able to effectively cause a stay of the enforcement proceeding by merely suggesting in a response that a divorce action was then pending in Maryland ¹ and the proceeding languished. The marriage of the parties was dissolved in 1977 by a Maryland judgment, a copy of which was sent to and placed in the pending Florida enforcement proceeding. The Maryland judgment required the appellant former husband to pay alimony of $180 per month. The pending enforcement proceeding was transferred from Orange County to Seminole County in 1978 where, with prodding from Maryland, it was awakened in 1979. The years 1980 and 1981 were consumed by legal proceedings. Over the years the youngest child of the parties grew of age so the former husband's counsel contended that URESA civil enforcement proceedings under sections 88.081, et seq., Florida Statutes, were available only for child support and not for alimony. In August of 1981 a domestic relations commissioner found the court had jurisdiction to proceed with enforcement of alimony because the Maryland judgment had been filed and registered under URESA section 88.321, et seq., Fla.Stat. (1981). This resulted in further delay and motivated the former husband to file a petition to vacate registration of the Maryland divorce judgment ² collaterally attacking the Maryland

                judgment on grounds, among others, that the Maryland judgment was void because of lack of personal jurisdiction over the husband.  The husband filed an affidavit saying that he had been a continuous resident of Florida since 1966 and in July, 1981, the then domestic relations commissioner found that affidavit sufficient to rebut the presumption that the Maryland court had jurisdiction and to shift to the former wife the burden to prove otherwise.  Under the claimed authority of section 88.371(2), Florida Statutes (1981), the former husband also filed a supplemental complaint for modification against the former wife.  At long last, after many further continuances, it appeared that in his affidavit the former husband forgot to mention that in October, 1976, he had personally filed an answer in the Maryland divorce proceeding thereby giving the Maryland court personal jurisdiction over himself.  About this time the legal representatives of the state attorney's office and of the Department of Health and Rehabilitative Services disagreed as to which state agency should represent the former wife under section 88.345, Florida Statutes (1981). 3  Some good came of this because it led to the discovery that the Maryland divorce judgment had, in fact, not been registered by the obligee under section 88.341, Florida Statutes (1981).  The matter was finally considered in October, 1981, at which time the former husband argued that he was financially unable to pay the $180 per month alimony ordered in Maryland in 1977 because of his need to support a new wife and two children acquired after his divorce from his former wife.  The domestic relations commissioner painstakingly summarized and carefully considered the case and recommended an adjudication of arrearages for 51 months ($9,180);  that monthly periodic payments of alimony of $180 be commenced and that modification be denied in view of the purposes of URESA.  The trial court overruled objections to the commissioner's report and adopted the

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