DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AMY CARLSON,
Appellant,
v.
VIKTOR FRENGUT,
Appellee.
No. 4D21-1600
[September 14, 2022]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; George Odom, Judge; L.T. Case No.
FMCE 18-001486 (41) (90).
Christopher N. Link of Christopher N. Link, P.A., Plantation, for
appellant.
No brief filed for appellee.
CONNER, J.
Amy Carlson (“Former Wife”) initially appealed the trial court’s
amended income withholding order (IWO) issued on May 12, 2021, arguing
that the trial court abused its discretion by unilaterally reducing her
periodic alimony payments without notice and opportunity to be heard.
After we granted Former Wife’s motion to relinquish jurisdiction, the trial
court vacated the IWO issued on May 12, 2021, but did not issue any
subsequent or amended IWO. Former Wife argues the trial court was
required to enter a subsequent IWO after vacating the May 12, 2021 IWO.
The record on appeal shows that during this appeal, appellee, the former
husband, has been continuously and substantially in arrears in payment
of alimony.
Former Wife correctly contends that the entry of an IWO in this case is
statutorily mandated. Section 61.1301(1)(a), Florida Statutes (2021),
states:
Upon the entry of an order establishing, enforcing, or
modifying an obligation for alimony, for child support, or for
alimony and child support, other than a temporary order, the
court shall enter a separate order for income deduction if one
has not been entered.
§ 61.1301(1)(a), Fla. Stat. (2021). Additionally, section 61.1301(1)(b)2.
requires that the income deduction order shall:
State the amount of arrearage owed, if any, and direct a payor
to withhold an additional 20 percent or more of the periodic
amount specified in the order establishing, enforcing, or
modifying the obligation, until full payment is made of any
arrearage, attorney’s fees and costs owed, provided no
deduction shall be applied to attorney’s fees and costs until
the full amount of any arrearage is paid.
§ 61.1301(1)(b)2., Fla. Stat. (2021). We have said that “[t]he statute is
mandatory.” Seith v. Seith,
337 So. 3d 21, 26 (Fla. 4th DCA 2022); see
also Dorsett v. Dorsett,
902 So. 2d 947, 953 (Fla. 4th DCA 2005) (“It is
unambiguous from both the statutory language and its judicial
interpretation that every child support order is to be accompanied by an
income deduction order.”).
Although the trial court vacated the IWO initially appealed (presumably
because it reduced the monthly alimony obligation without notice and
opportunity to be heard by Former Wife), the trial court failed to enter an
subsequent IWO that addresses not only the former husband’s obligation
to pay an ongoing amount of alimony monthly, but also the obligation to
make a monthly payment toward an accrued arrearage of alimony. In her
initial brief, Former Wife requested that we direct the trial court to comply
with its statutory obligation.
We therefore dismiss as moot the portion of the appeal seeking to
reverse the May 12, 2021 IWO, and remand the case for the trial court to
enter an IWO that fulfills the requirements of section 61.1301.
Dismissed in part and remanded for further proceedings.
GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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