Timmons v. Timmons , 2015 Fla. App. LEXIS 16135 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LORI TIMMONS, )
)
Appellant, )
)
v. ) Case No. 2D14-2388
)
GARRY TIMMONS, )
)
Appellee. )
)
Opinion filed October 30, 2015.
Appeal from the Circuit Court for Charlotte
County; Lisa S. Porter, Judge.
Mira Staggers White, Murdock, for
Appellant.
Garry Timmons, pro se.
SALARIO, Judge.
This appeal arises out of a contempt proceeding following the dissolution
of the Timmons' marriage. The trial court entered an order holding Garry Timmons, the
former husband, in contempt for failure to pay alimony and providing for the entry of an
income deduction order requiring withholdings from his income of an amount equal to
ten percent of his monthly periodic alimony obligation until the alimony arrearage is
satisfied. The former wife, Lori Timmons, asserts on appeal that section
61.1301(1)(b)(2), Florida Statutes (2014), requires that the arrearage be satisfied
through monthly income deductions of twenty percent. We agree and reverse the
contempt and income deduction orders to the extent they provide for income deduction
at a rate of less than twenty percent.
In January 2013, the parties entered into a marital settlement agreement
in which the former husband agreed to pay permanent periodic alimony of $2250 per
month. The trial court thereafter entered a final judgment dissolving the parties'
marriage and requiring the former husband to make alimony payments as the parties
had agreed. An income deduction order was not entered at that time. Beginning in
November 2013, the former husband failed to make alimony payments in full.
On January 21, 2014, the former wife filed a motion asking the trial court
to hold the husband in contempt and seeking entry of an income deduction order. After
an evidentiary hearing in March 2014, the trial court entered an order of contempt. It
rejected the former husband's assertion that he had become financially unable to pay
$2250 per month and held him in contempt for failing to do so. It also held that the
former husband would be permitted to purge the contempt by paying $1000 toward the
alimony arrearage within thirty days and found that he was financially able to make that
payment in that time. The trial court further required the former husband to pay the
balance of the arrearage—$5400 at the time of the contempt order—not satisfied by the
purge payment.
With respect to the rate of payment of the arrearage, the former wife
argued that section 61.1301(1)(b)(2), which makes provision for income deduction
-2-
orders to assure payment of alimony obligations, required monthly payments of twenty
percent of the former husband's regular monthly alimony obligation until the arrearage
was satisfied. Although the former husband took no position on the issue, the trial court
nonetheless decided that it had the discretion to allow payment at a rate lower than that
specified by the statute and that monthly payments of ten percent of the permanent
alimony obligation were appropriate in this case.
In accord with that reasoning, the contempt order requires that the former
husband satisfy the arrearage by making monthly payments of $225 (ten percent of his
periodic obligation of $2250 per month) and that "[a]n Income Withholding Order shall
be entered for . . . $225.00 per month to be paid toward the arrearage." The income
deduction order entered by the trial court directs that the sum of $103.85 be deducted
from income payable to the former husband on a biweekly basis until the arrearage is
satisfied.1 The former wife moved for rehearing, again challenging the ten-percent
withholdings amount as less than that required by section 61.1301(1)(b)(2), which the
trial court denied. This appeal followed.
On appeal, the former wife asserts that the trial court misinterpreted
section 61.1301(1)(b)(2) as providing discretion to order withholdings for the alimony
arrearage in an amount less than twenty percent. Our review of the trial court's
interpretation of the statute is de novo. Brooks v. Brooks, 164 So. 3d 162, 163-64 (Fla.
1
This biweekly sum appears to work out to less than the ten-percent
payment rate contemplated by the contempt order. In light of our disposition, however,
we need not address this potential inconsistency between the two orders other than to
note that on remand the trial court should ensure that, if the income deduction order
provides for biweekly deductions, those deductions amount to no less than twenty
percent of the former husband's periodic alimony obligation.
-3-
2d DCA 2015). The former wife has not provided a transcript of the proceedings below,
which ordinarily could preclude our review in a case like this. See Applegate v. Barnett
Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1980). The trial court's reasoning
about section 61.1301(1)(b)(2) appears on the face of the contempt order, however, and
the absence of a transcript thus presents no impediment in this case. See Coyne v.
Coyne, 895 So. 2d 469, 470 (Fla. 2d DCA 2005) (explaining that, notwithstanding an
appellant's failure to provide a transcript, an appellate court may reach errors that
appear on the face of a trial court's order).
Section 61.1301(1)(a) provides that "[u]pon the entry of an order
establishing, enforcing, or modifying an obligation for alimony [or] child support . . . the
court shall enter a separate order for income deduction if one has not been entered."
Section 61.1301(1)(b)(2) governs the content of such orders. It says, among other
things, that an income deduction order "shall . . . [s]tate the amount of the arrearage
owed . . . and direct a payor to withhold an additional 20 percent or more of the periodic
amount specified in the order . . . enforcing the obligation, until full payment is made of
any arrearage." § 61.1301(1)(b)(2) (emphasis added).
By its plain terms, section 61.1301(1)(b)(2) does not authorize
discretionary decisions to direct income deduction in an amount less than twenty
percent of the periodic amount specified in the order. The language of the statute is
mandatory; it provides that the trial court "shall" direct withholdings of twenty percent.
See generally Neal v. Bryant, 149 So. 2d 529, 532 (Fla. 1962). It does not confer
-4-
discretion or allow a trial court to select a different withholding amount.2 See Rivero v.
Lee, 617 So. 2d 397, 398 (Fla. 3d DCA 1993) (reversing order including child support
arrearage payment amount less than twenty percent of the periodic obligation and
directing trial court "to enter an arrearage payback amount which is at least 20% of the
specified support amount"); see also Taylor v. Lasley, 666 So. 2d 600, 601 (Fla. 4th
DCA 1996) (directing calculation of child support arrearage payment "at no less than
20%" of the ongoing obligation).
Because section 61.1301(1)(b)(2)'s twenty-percent requirement by its
terms applies only to income deduction orders, it does not extend to other funds—cash
held by a spouse in a bank account prior to entry of an income deduction order, for
example—that are not subject to such orders. In circumstances where income
deduction orders are not at issue, courts have recognized that a trial court would have
discretion to provide a different rate of payment on an arrearage. See, e.g., Burdick v.
Burdick, 601 So. 2d 632, 634 (Fla. 4th DCA 1992) (holding that a trial court generally
has discretion to order arrearage payments in installments or to "otherwise structure the
manner of payment"); Ashe v. Ashe, 509 So. 2d 1146, 1148 (Fla. 1st DCA 1987)
(contemplating a "schedule of monthly payments consistent with the payor parent's
2
We note that at least one court has held that the arrearage payment rate
in an income deduction order can be altered based on the obligor's inability to pay an
arrearage. See Lambertini v. Lambertini, 817 So. 2d 942, 944 (Fla. 3d DCA 2002).
That seems difficult to square with the unambiguous, mandatory language of the statute
and the fact that a trial court has other methods of addressing an alimony obligation that
has become financially impossible. See, e.g., § 61.14, Fla. Stat. We need not reach
the issue of whether the former husband has the ability to pay the twenty-percent
amount in this appeal, however, because it is not presented. In the trial court, he took
no position on the income deduction amount, and he has made no appearance in this
appeal. The trial court's findings in the contempt order concerning ability to pay make it
clear to us that the ability to pay was not a matter at issue in the trial court's decision.
-5-
ability to pay"). In the instant case, however, income from the former husband's
employment is the intended source of funds from which the arrearage is to be paid.
That income is subject to section 61.1301(1)(b)(2)'s twenty-percent requirement, and
that requirement must be enforced here.
Because the trial court deviated from that requirement, we reverse the
contempt order to the extent it provides for entry of an income deduction order that
varies from the requirements of section 61.1301(1)(b)(2) and reverse the income
deduction order to the extent it actually does so. We remand with instructions to the
trial court to enter contempt and income deduction orders that comport with the statute.
Reversed; remanded with instructions.
NORTHCUTT and BLACK, JJ., Concur.
-6-