Posted by Nydia Streets of Streets Law in Florida Child Support
In addition to Florida child support, parents can be ordered to pay a certain percentage of uncovered medical expenses. This percentage is usually calculated under the Florida child support guidelines. When a parent fails to pay his or her share of these additional expenses, the parent may be held in contempt of court and forced to pay the other parent’s attorneys’ fees and costs. This issue arose in the recent appellate case Johansson v. Johansson, 4D19-2661 (Fla. 4th DCA April 1, 2020).
The former wife filed a motion for contempt, and separately, a motion for attorneys’ fees and costs. After finding the former husband in contempt of his duty to pay uncovered medical costs and awarding the former wife attorneys’ fees and costs in an amount to be determined, the court held a hearing to determine the amount. At the hearing, the court made a specific finding that the former husband did not have the ability to pay fees or costs since he had no liquid assets available to him and he was paying off the medical costs. Despite this finding, the former wife was awarded attorneys’ fees. The former husband appealed, arguing it was error for the court to award fees despite its finding of his lack of ability to pay.
Reversing the trial court’s ruling on this matter, the appellate court held “In sum, when a party makes a claim for attorney’s fees and costs under chapter 61, the court must consider need and ability to pay before the court can order payment of attorney’s fees in contempt proceedings incident to enforcing orders relating to support or custody. [. . .] Here, both of the Former Wife’s motions to enforce, for contempt, and for sanctions requested an award of attorney’s fees pursuant to section 61.16, Florida Statutes. Moreover, the Former Wife specifically argued she had the need, and the Former Husband had the ability to pay her attorney fees. Finally, in awarding fees, the trial court stated that in its prior order determining the Former Wife’s entitlement to fees and costs, it specified her entitlement to said fees was not due to a sanction.”
Essentially, because former wife requested the attorneys’ fees based on need and ability to pay rather than as a sanction for the former husband’s failure to pay the uncovered medical costs, the appellate court found it was error to award her the fees where there was a specific finding the former husband had no ability to pay those fees. Had the former wife sought fees as a sanction under the contempt motion, the court could have granted those fees without regard to need or ability to pay. Schedule a consultation with a Miami child support lawyer to understand your rights and remedies moving forward.