In an opinion filed September 22, 2011, a Florida District Court of Appeal ruled that a trial court improperly ordered deductions from an Appellant’s income for a portion of an arrearage that does not represent family support or related attorney’s fees.

During the pendency of the dissolution of marriage action, the Appellant liquidated his children’s pre-paid college accounts, which the trial court had ordered not to be liquidated. When the Appellant failed to place the funds in a trust pending a final determination of the funds’ marital status as ordered by the court, the trial court directed that $300 per month be deducted from his income until an arrearage of $24,308.59 had been satisfied. This amount included the above mentioned liquidation amount, along with other support arrearages.

The Appeals Court held that the pre-paid college accounts are not part of Appellant’s support obligation, and even though the Appellant was obligated to comply with the court’s order to place the funds in trust pending the final determination of their marital status, this obligation may not be enforced through an income deduction order. The Court stated:

Section 61.1301(1)(b)1 establishes the purposes for which an income deduction order may be used. This statute is in derogation of common law and, thus, must be strictly construed. Spalding v. Spalding, 813 S0. 2d 1078, 1079 (Fla. 4th DCA 2002). It authorizes the use of an income deduction order to “[d]irect a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor’s support obligation including any attorney’s fees or costs owed and forward the deducted amount pursuant to the order.”

See Achurra v. Esperanza Achurra, 36 Fla. L. Weekly D2104.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.