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Department of Revenue v. Baker

Florida Court of Appeals, Fourth District

December 13, 2017

DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, o/b/o JORDYN BAKER, Appellant,
v.
GUSTAVUS BAKER, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         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 U.S. Mail." Similarly, the DOR sent a notice of hearing to each appellee "by regular U.S. 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.

         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 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 ...


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