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I'm facing a default judgment for arrears that was filed…

I'm facing a default...

I'm facing a default judgment for arrears that was filed after the child reached majority. The child support order stems from a 2001 divorce. i paid child support payment directly to her from 2001 to 2012. She request assistance and Child Support Enforcement (Title IV) took over from there. Prior to this 2016 arrears request, the mother made never filed any modification or contempt motions. I would like to file a motion to dismiss due to laches and equitable estoppel, (I have necessary elements for both defenses.) I filed a Motion to Set Aside Default Judgment/Order and Rehear due to not receiving notice, but it was denied.by recommendation of the hearing officer because a notice was allegedly sent to my address of record, thereby establishing effective "process of service". I have appealed that determination to the appellate court. My question is: Can I file a Motion to Terminate Arrears and or Motion for Relief of Default Judgment, and/or another Motion to Set Aside Judgment/Order while awaiting the findings on my appeal?

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Florida

Lawyer's Assistant: Have you talked to a lawyer yet?

No, not yet.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My initial motion was based on a failed "service of process".because I never actually received the notice.

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Answered in 9 minutes by:
3/8/2018
Law Educator, Esq.
Category: Family Law
Satisfied Customers: 125,893
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Child support payments do not just go away when a parent did not pay and the child reaches majority. If the child support is from payments due when the child was a minor and they were ordered. If the other parent knew where you were and how to seek the payments you can argue laches, see: http://caselaw.findlaw.com/fl-district-court-of-appeal/1165436.html

The courts are hesitant to agree laches applies when there was a valid court order for support and the moving party simply failed to pay support.

If there is an appeal filed, you can file a motion to stay enforcement pending your appeal, but you cannot file a motion to terminate or motion for relief as long as the case is on appeal.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 4 months ago
Hi, as I mentioned before, I paid support directly to her.
The whole story is: She divorced me while I was incarcerated. I never received a notification of any sort. She informed me on phone that she was re-marrying and she had already divorced me. She moved to Hawaii and I (at that time) was released and living in New Jersey, continued living mine.
I sent money regularly to her to support my son and step-daughter.
No issues until when (in 2010) she left her husband, moved by to Florida, and lost her job. She requested assistance in 2012 (through the government) and that's when I first found out about the support order.
There was a retroactive order in place 24 months prior to the initial filing for divorce. I received a notification from Florida DOR of the support obligations and they garnished monthly support payments from my paycheck until my son reached majority and the retro support was satisfied.
I thought everything was paid until I received the recommendation and order from the hearing I knew nothing about.

Thank you for your reply.

You would need to actually prove what you paid. This can be an issue I am afraid if you paid cash unless you kept records.

However, if you have the proof the retroactive support was satisfied, then it would mean you would file a motion to dismiss based on accord and satisfaction.

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Customer reply replied 4 months ago
I didn't keep a record because I had no clue a support order was in place. I have an affidavit from a witness who heard her say she would never put me on child support.
I can get a copy of the "Satisfaction of Judgment" for the retro order. The arrears however, derived from the support time period when she finalized the divorce until 2012, when she filed for assistance. I can't provide proof of payments from such a long time ago. I've moved three times since then and I had family members who could have attest to my claims, but have since passed on

Thank you for your reply.

This puts you in a prejudicial position to satisfy that element of laches, since she could have sought those payments back at the time she sought the others and she chose not to. So that is where your laches claim comes into play.

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Customer reply replied 4 months ago
My appeal is for a motion requesting to set aside the default judgment and to have an opportunity to present my claims at a hearing.
In addition, an order to levy was attached to my bank accounts. The entire balance is frozen while these proceedings continue. I'm going to file a motion to stay proceedings (pending appellate review) in the next 24 hours.
There is no possible way to file a motion to have the judgment dismissed while my initial motion is under appellate review?

Thank you for your reply.

Unfortunately, no, as I said. Once the appeal is filed, the lower court cannot dismiss the same judgment. The best you can do is apply for a motion to stay enforcement pending appeal.

Law Educator, Esq.
Category: Family Law
Satisfied Customers: 125,893
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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Law Educator, Esq. and 87 other Family Law Specialists are ready to help you
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Customer reply replied 4 months ago
Thanks for all the advice!!! It really helped put a better spin on the direction I need to go. My claims of laches and equitable estoppel have strong arguments and I want to present them before the courts like yesterday! I just have to wait the appeal out and file the stay of proceedings. Thanks again, and if anything else comes up, you'll be the first to hear it!

Thank you for your reply.

You do need to wait out the appeal, but you can file a motion to stay the judgment execution pending your appeal.

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