DEPT. OF REVENUE, CHILD SUPPORT ENFC., O/B/O SABRINA K. SAJET v. BILL OLSON JEAN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT,
o/b/o JORDYN BAKER,
Appellant,
v.
GUSTAVUS BAKER,
Appellee.
Nos. 4D16-3129, 4D16-3131, 4D16-3132, 4D16-3175, 4D16-3176,
4D16-3179, 4D16-3180, 4D16-3183, 4D16-3184, 4D16-3185, 4D16-
3186, 4D16-3189, 4D16-3192, 4D16-3194, 4D16-3298, 4D16-3300,
4D16-3302, 4D16-3316, 4D16-3317, 4D16-3325, 4D16-3332, 4D16-
3335, 4D16-3336, 4D16-3338, 4D16-3342, 4D16-3344, 4D16-3346 and
4D16-3352
[December 13, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John Patrick Contini, Judge; L.T. Case Nos. FMCE-11-
008949 (44), FMCE-05-12631 (44), FMCE-14-005105 (44), FMCE-11-
006661 (44), FMCE-15-0000137 (44), FMCE-15-010832 (44), FMCE-13-
007427 (44), FMCE-14-004080 (44), FMCE-10-004790 (44), FMCE-14-
010763 (44), FMCE-13-000070 (44), FMCE-14-007341 (44), FMCE-11-
005723 (44), FMCE-14-009785 (44), FMCE-08-014480 (44), FMCE-04-
000962 (44), FMCE-13-011756 (44), FMCE-10-000480 (44), FMCE-15-
012067 (44), FMCE-97-013149 (44), FMCE-15-007907 (44), FMCE-15-
014176 (44), FMCE-14-011745 (44), FMCE-12-006618 (44), FMCE-15-
004297 (44), FMCE-15-013294 (44), FMCE-15-000801 (44), FMCE-15-
005923 (44) and CSE Nos. 1377877591, 1218304448, 2000779290,
1359455256, 1383799431, 2000862932, 1279881925, 1346389080,
1296667308, 2000047883, 2000251912, 2000579476, 1266397060,
2000372682, 1296243419, 1044341327, 2000734800, 1313712507,
2000786720, 1041650141, 2000322284, 1222113945, 2000004279,
1242567712, 2000827215, 2000767855, 2000811717, 2000807160.
Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant
Attorney General, Tallahassee, for appellant.
No appearance for appellee.
DAMOORGIAN, J.
In this consolidated appeal, the Department of Revenue (the “DOR”)
appeals the trial court’s denial of its motion for civil contempt due to failure
to pay child support in twenty-eight separate cases. 1 In each case, the
court’s denial was based on its conclusion that the DOR’s service of its
motion via U.S. Mail was insufficient. Because this method of service is
legislatively authorized and satisfies due process concerns, we reverse and
remand.
In each of the underlying cases, the DOR filed a motion for civil
contempt based on each appellee’s non-payment of court-ordered child
support. Some of the appellees were ordered to pay child support in
conjunction with final dissolutions of marriage entered pursuant to
Chapter 61 of the Florida Statutes and others were ordered to pay child
support in conjunction with paternity judgments entered pursuant to
Chapter 742 of the Florida Statutes. In each case, the DOR attached a
certificate of service representing that a copy of its motion was served on
the appellee “by regular US Mail.” Similarly, the DOR sent a notice of
hearing to each appellee “by regular US Mail.” The notices provided that
“FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT
ISSUING A WRIT OF ATTACHMENT FOR YOUR ARREST. IF YOU ARE
ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A
HEARING IS HELD.”
Each of the appellees failed to appear at their respective hearings,
which took place in front of a hearing officer. Each hearing officer
recommended that the court grant the DOR’s motion for contempt and
issue a writ of bodily attachment with varied purge amounts based on the
individual facts of the case. Despite the foregoing, the trial court entered
a blanket order rejecting each hearing officer’s recommendations and
denying the DOR’s motions. In its order, the court found that, although
permitted by statute, notice of a civil contempt proceeding provided by mail
was constitutionally inadequate. This was incorrect.
1 The other appellees and their case numbers are listed as follows: 4D16-
3131/Paretty, 4D16-3132/Pierre, 4D16-3175/Philius, 4D16-3176/Muse, 4D16-
3179/Henderson, 4D16-3180/Williams, 4D16-3183/Puckett, Jr., 4D16-
3184/Guerrier, 4D16-3185/Justafort, 4D16-3186/Sanders, III, 4D16-
3189/Thompkins, 4D16-3192/Davis, 4D16-3194/Sheppard, 4D16-
3298/Brown, 4D16-3300/Brown, Jr., 4D16-3302/Sobush, 4D16-
3316/Dawson, 4D16-3317/Forrest, 4D16-3325/Hall, 4D16-3332/Colson,
4D16-3335/Bent, 4D16-3336/Griffin, 4D16-3338/Williams, 4D16-
3342/Fraser, 4D16-3344/Martinez, 4D16-3346/Dardy and 4D16-3352/Jean.
2
Family Law Rule of Procedure 12.615(b) governs the service of motions
for civil contempt in support matters, and provides:
(b) Motion and Notice. Civil contempt may be initiated by
motion. The motion must recite the essential facts
constituting the acts alleged to be contemptuous. No civil
contempt may be imposed without notice to the alleged
contemnor and without providing the alleged contemnor with
an opportunity to be heard. The civil contempt motion and
notice of hearing may be served in accordance with Florida
Rule of Judicial Administration 2.516 provided notice is
reasonably calculated to apprise the alleged contemnor of the
pendency of the proceedings. The notice must specify the time
and place of the hearing and must contain the following
language: “FAILURE TO APPEAR AT THE HEARING MAY
RESULT IN THE COURT ISSUING A WRIT OF BODILY
ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED,
YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A
HEARING IS HELD.” This notice must also state whether
electronic recording or a court reporter is provided by the
court or whether a court reporter, if desired, must be provided
by the party.
Florida Rule of Judicial Administration 2.516(b)(2), in turn, states:
Service on and by all parties who are not represented by an
attorney and who do not designate an e-mail address, and on
and by all attorneys excused from e-mail service, must be
made by delivering a copy of the document or by mailing it to
the party or attorney at their last known address or, if no
address is known, by leaving it with the clerk of the court.
Service by mail is complete upon mailing.
Based on the foregoing, in a civil contempt proceeding for failure to pay
child support, “service by mail is sufficient.” Pennington v. Pennington,
390 So. 2d 809, 810 (Fla. 5th DCA 1980).
Additionally, both Chapter 61 (governing dissolution of marriages) and
742 (the paternity chapter) expressly provide that service of process via
mail in child support actions comports with due process. In order to
receive certain federal funding, the Legislature enacted sections
742.032(1) and 61.13(7)(a) of the Florida Statutes, wherein it created a
State Case Registry system which requires “each party to any paternity or
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child support proceeding” to file “information on location and identity of
the party” with the tribunal and update that information as appropriate.
Because the parties are statutorily required to keep their contact
information current and accurate, the Legislature also provided that in
any child support enforcement action, “the court of competent jurisdiction
shall deem state due process requirements for notice and service of
process to be met with respect to the party upon delivery of written notice
to the most recent residential or employer address filed with the tribunal
and State Case Registry.” § 742.032(2), Fla. Stat. (2016); see also §
61.13(7)(c), Fla. Stat. (2016).
Despite this authority, the trial court found that notice of a motion for
civil contempt by U.S. mail is constitutionally insufficient and, in doing so,
also implicitly found that sections 742.032(2) and 61.13(7)(c) were
unconstitutional. “The constitutionality of a state statute is a pure
question of law subject to de novo review.” Fla. Dep’t of Revenue v. Am.
Bus. USA Corp., 191 So. 3d 906, 911 (Fla. 2016).
When considering the constitutionality of a statute, including a notice
statute, courts “have a ‘duty if reasonably possible . . . to adopt a
reasonable interpretation of a statute which removes it farthest from
constitutional infirmity.’” State ex rel. Pittman v. Stanjeski, 562 So. 2d 673,
677 (Fla. 1990) (quoting Corn v. State, 332 So. 2d 4, 8 (Fla. 1976) (footnote
omitted)). “In interpreting a statute under constitutional challenge, we
also have a responsibility to ‘avoid declaring a statute unconstitutional if
such statute can be fairly construed in a constitutional manner.’” Id.(quoting Sandlin v. Criminal Justice Standards & Training Comm’n, 531 So.
2d 1344, 1346 (Fla. 1988)).
“While a person facing civil contempt is not entitled to all of the due
process rights afforded to a person facing indirect criminal contempt, he
or she is nonetheless entitled to a proceeding that meets the fundamental
fairness requirements of the due process clause of the Fourteenth
Amendment.” Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 4th DCA 2005).
“This requires that the alleged contemnor be provided with adequate notice
and an opportunity to be heard.” Id. “Determining whether a particular
method of notice is ‘reasonably calculated’ to provide adequate notice
requires ‘due regard for the practicalities and peculiarities of the case.’”
Vosilla v. Rosado, 944 So. 2d 289, 294 (Fla. 2006) (quoting Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). “Subject to this
limitation, the legislature has the authority to determine the extent and
character of the notice which shall be given by the state” before adverse
action is taken against a party. Dawson v. Saada, 608 So. 2d 806, 808
4
(Fla. 1992) (noting that the legislature has authority to determine notice
requirements for tax deed sale).
The Florida Supreme Court’s holding in Stanjeski is illustrative of these
principles. 562 So. 2d at 677–78. There, the court considered whether a
provision within chapter 61 which allowed the clerk of court to
automatically enter a judgment for unpaid child support after providing
notice via certified mail complied with due process. Id. It held that it did,
“find[ing] no due process problem with the utilization of certified mail as a
means to give notice under the circumstances where the obligor (a) was
served personally in the original proceedings and (b) was directed to
provide the clerk with his mailing address and any subsequent changes to
that address.” Id. at 679. Considering similar notice issues in the context
of a tax deed sale, the Florida Supreme Court recognized that service of
notice of a tax deed sale via mail to the titleholder’s last known address
does not violate due process, even when the titleholder does not actually
receive the notice, so long as the property appraiser has no reason to know
or suspect that the address was no longer the titleholder’s correct address.
Vosilla, 944 So. 2d at 296−99. Collectively, these cases provide that notice
by mail is sufficient for due process purposes when the party being notified
has an ongoing duty to maintain its correct address with the notifying
agency and the notifying agency has no indication that the address is
incorrect. See also § 456.035, Fla. Stat. (providing that persons licensed
by the Florida Department of Health are required to notify the Department
of any change in address and, because of this requirement, service by
regular mail to licensee’s last-known address of record constitutes
sufficient notice).
In the instant cases, the DOR sent appellees a copy of its contempt
motion as well as the notice of hearing containing the required language
outlined in Family Law Rule of Procedure 12.615(b) via U.S. mail to each
appellees’ last known address. Each appellee was personally served in the
underlying dissolution or paternity action giving rise to the judgment
requiring the payment of child-support and thereby knew that he or she
had a continuing obligation to pay child support. Further, each appellee
was required by statute to keep his or her mailing address updated in the
State Court Registry. Under these circumstances, we hold that the trial
court erred in ruling that notice by mail was inadequate and reverse and
remand each case for further proceedings.
Reversed and remanded.
WARNER and TAYLOR, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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