Robinson v. State, Dept. of Health and Rehabilitative Services on Behalf of Robinson, 84-32

• Decision Date: 27 June 1985
• Docket Number: No. 84-32,84-32
• Parties: 10 Fla. L. Weekly 1607 Ronald Thurman ROBINSON, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Margaret Ann ROBINSON, Appellee.
• Court: Florida District Court of Appeals

Page 228

473 So.2d 228

10 Fla. L. Weekly 1607

Ronald Thurman ROBINSON, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Margaret Ann ROBINSON, Appellee.

No. 84-32.

District Court of Appeal of Florida Fifth District.

June 27, 1985.

Rehearing Denied Aug. 1, 1985.

Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.

Gerladyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.

SHARP, Judge.

Robinson appeals from a final judgment rendered by the lower court in a URESA action, Chapter 88, Florida Statutes (1981), which required him to pay $17,793.21 in child support arrearages based on an Ohio dissolution decree. He sought to raise the defense of laches. The trial court disallowed this defense on the grounds that it was not applicable to this cause of action, that he failed to establish any prejudice to petitioner's delay in seeking enforcement, and that he should have taken affirmative steps in the court in Ohio to have the support terminated or suspended until the former wife and custodial parent allowed him visitation with his children. We reverse.

The record in this case establishes that the parties were divorced in Ohio in 1966. Under the divorce decree Robinson was required to pay $32.50 per week for the parties' three children until they reached their majority. Robinson made the child support payments on a fairly regular basis until May of 1972. The former wife then remarried, and Robinson testified when he tried to visit the children, his former wife's new husband threatened to kill him. The former wife then talked with him and agreed that if he would no longer visit the children "she would just let the support slide."

Relying on this agreement, Robinson did not see his children again until 1978. From time to time, he sent money directly to his children. The former wife made no effort to enforce the child support payments after 1972; nor did she ever demand or request that they be made.

Then, in April of 1982, the former wife, still a resident of Ohio, filed a petition for enforcement of child support arrearages in Ohio. The last of the three children had turned eighteen years of age a few months after the former wife filed the petition to enforce. The Ohio Court filed a certificate under URESA in Florida, and Robinson was served in Florida, where he was then residing.

It is clear that parents may not contract away the rights of their children to support; nor may they waive a child's right to support by acquiescing in the obligated parent's nonpayment of support. Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). However, the defense of laches, in the presence of extraordinary facts or compelling circumstances and where the child's welfare is not jeopardized, may bar enforcement of child support arrearages. Wing v. Wing, 464 So.2d 1342 (Fla. 1st DCA 1985).

Here, the former wife filed the action for arrearages shortly before the last of the children reached majority. Thus, the children's welfare would not be jeopardized by denying the arrearages. The former wife is not pursuing the children's current needs, but seeking to recoup payments she and her current husband expended for the children during their minority. There is no compelling reason not to apply laches as to her rights.

Next, circumstances were proven which could give rise to the defense of laches. First, the former wife did more than acquiesce in the appellant's nonpayment. She agreed the appellant could discontinue the child support payments in return for his surrendering visitation rights. He complied, and that can never be recouped. Second, nothing in the record explains why the former wife delayed ten years before seeking to enforce her rights to the arrearages. Finally, the appellant was clearly prejudiced by the delay. He gave up his visitation rights based upon the former wife's representations that he would be absolved of his support duty. Now, he faces an accumulated debt of $17,793.21. He could have paid the child support in small increments, but ten years accumulation has grown into an intolerable lump sum.

We think the foregoing factors amount to circumstances sufficiently compelling to allow Robinson to raise the defense of laches as a bar to the enforcement of the child support arrearages by his former wife in this case. ¹ This is not merely a defense based on denial of visitation privileges which is inapplicable under Florida law to enforcement of child support obligations. ² For these reasons, we reverse, and remand for a new trial.

ORFINGER, J., concurs.

COWART, J., concurs in part; dissent in part, with opinion.

COWART, Judge, concurring in part; dissenting in part:

Appellant, a father, defended in Florida a URESA action for child support initiated in Ohio by the mother by moving to dismiss and also by filing two affirmative defenses, as follows:

Affirmative Defense I: "... the Petitioner has affirmatively denied visitation rights to the Parties' minor children by the Respondent, that the last time that the Respondent was denied visitation rights he advised the Petitioner that he would not pay child support until he was granted visitation rights, and he has not been granted visitation rights since...."

Affirmative Defense II: "... the Petitioner's claim is barred by laches, in that the Petitioner has made no demand against respondent for payments for twelve (12) years, that the Petitioner was aware of, and knew that the Respondent would not make child support payments so long as she denied and refused to allow the Respondent to visit with the Parties' minor child, that the Petitioner now seeks support for the children after they have all reached majority, that the Petitioner knew the whereabouts of the Respondent at all times, that further, by the delay in filing the Petition, there is no way that any exact...