Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAYTE HOLLEY f/k/a GLADYS REVARD, Appellant, v. DEBRA ERWIN-JENKINS, as personal representative of the Estate of Peter A. Revard, deceased, Appellee. No. 2D22-2561 August 23, 2023 Appeal from the Circuit Court for Pinellas County; Keith Meyer, Judge. Tayte Holley, pro se. Mark Hanks of Attorney Hanks, P.A., St. Petersburg, for Appellee. SMITH, Judge. Tayte Holley, formerly Gladys Revard, appeals the trial court's involuntary dismissal of her complaint seeking unpaid child support from her deceased ex-husband, Peter Revard. Because Mrs. Holley presented evidence sufficient to entitle her to a judgment for arrearages and because Debra Erwin-Jenkins, as personal representative for the Estate of Peter A. Revard (the Estate), failed to establish the defense of laches, we reverse the order granting involuntary dismissal and remand for an adjudication of the child support arrearages claimed by Mrs. Holley. Mrs. Holley and Mr. Revard were married on November 22, 1987, had one child together, and were divorced in 1994. Pursuant to the Final Judgment of Dissolution, rendered May 10, 1994, Mr. Revard was ordered to pay child support in the amount of $1951 per week until their son turned eighteen on May 20, 2005. According to the records in the child support case, no child support payments were made through the State Disbursement Unit after November 2, 1995. According to Mrs. Holley, Mr. Revard told her that he had lost his job and could only afford to pay her $100 per week in child support. Mr. Revard also told her that once reemployed, he would start paying the ordered $195 per week, but apparently that never happened, and Mr. Revard continued paying $100 per week. In 2016, Mr. Revard enlisted Mrs. Holley, a real estate agent, to sell one of the two houses that Mr. Revard's mother had left to him after she died. At closing, the title agent acknowledged the outstanding Judgment/Certificate of Delinquency; however, that Judgment lien had expired in January 2016; therefore, the closing went forward without Mr. Revard being required to either satisfy the Judgment or resolve the lien. Thereafter, on March 7, 2016, Mrs. Holley filed a Motion for Contempt/Enforcement of Final Judgment for Child Support. The motion was assigned to a general magistrate, and a hearing was held on February 14, 2017, after which the magistrate submitted its report and 1 Throughout this case, Mrs. Holley contends that Mr. Revard was ordered to pay $200 per week in child support. While this amount is consistent with the $195 per week in child support that he was ordered to pay through the State Disbursement Unit, she is not entitled to the additional $5 the clerk charges as a fee. 2 recommendation to the family law court finding that Mrs. Holley's motion for contempt was premature. The magistrate's report explained that because the child had reached the age of majority and there was no continuing child support obligation, Mrs. Holley would need to file a motion seeking to adjudicate the child support arrearage, and Mr. Revard would need to be ordered to pay against that arrearage before any motion for contempt could be ruled upon. Mrs. Holley did not file a motion to have the arrearage calculated, and Mr. Revard died on April 8, 2019. On November 18, 2019, in Mr. Revard's probate case, Mrs. Holley timely filed a claim for the arrearage upon learning that Mr. Revard had left all his assets to Linda Erwin, his long-time girlfriend and the appointed personal representative of his Estate—leaving nothing to their son. During the pendency of the probate case, Linda Erwin died and her sister Debra Erwin-Jenkins was appointed personal representative of the Estate. Mrs. Erwin-Jenkins objected to Mrs. Holley's claim in the probate court, and Mrs. Holley filed an independent civil action in circuit court to enforce her claims against the Estate pursuant to section 733.705(5), Florida Statutes (2019), and Florida Probate Rule 5.496(c). In the independent action, Mrs. Holley alleged in her complaint that Mr. Revard was ordered to pay $195 per week in child support by an order dated May 10, 1994. The complaint further alleged that Mr. Revard failed to make the ordered payments and attached a payoff letter from the Clerk of Circuit Court for Pinellas County, which indicated that Mr. Revard owed $97,305.00 in arrears together with interest and other fees for a total amount owed of $282,070.64. The Estate filed an answer raising a number of affirmative defenses. Relevant here, the Estate argued that Mrs. Holley's claim was 3 barred by laches where the child had reached the age of majority in 2005 and Mrs. Holley did not seek to hold Mr. Revard accountable until over a decade later, in 2016. And even after the magistrate informed Mrs. Holley that she would need to file a motion to have the arrearage calculated, she failed to do so, instead waiting until 2019 when Mr. Revard died to seek payment. The Estate alleged that it was prejudiced by Mrs. Holley's claim where Mr. Revard was no longer alive to rebut her claim and where the bank no longer had records of his accounts. A nonjury trial was held via Zoom on July 12, 2022. The following documents were entered into evidence: the final judgment of dissolution, marital settlement agreement, certified copy of the January 4, 1996, Judgment/Certificate of Delinquency showing that Mr. Revard had failed to pay into the depository the court-ordered child support payments, transcript of the 2017 hearing on the Motion for Contempt, general magistrate's report and recommendation, and order on the Motion for Contempt. The payoff letter from the clerk, which was attached to the complaint, showed that Mr. Revard was delinquent in his obligation and owed $97,305 in unpaid support together with interest and fees for a total amount due of $282,070.64. At trial, Mrs. Holley testified that while Mr. Revard did not pay the court-ordered support payments into the depository, he did pay her $100 per week. She testified that prior to 2016 she did not know she had a claim against Mr. Revard for the unpaid child support; it was only after she discovered the judgment lien on the house that she consulted with an attorney and learned that she still had rights to the unpaid child support amounts. Thereafter, she filed the Motion for Contempt. Mrs. Holley further testified that after the 2017 hearing on the Motion for Contempt, Mr. Revard "begged" her not to move forward with the filing of 4 a motion to calculate arrears, advising her that the court could force the sale of his house, which he planned to leave to their son, leaving their son with nothing when he died. Believing Mr. Revard and reluctant to have the house that had been in Mr. Revard's family for generations sold instead of going to their son upon Mr. Revard's death, she did not file a motion to calculate arrears. The Estate called a records custodian from Bank of America as a witness, who testified that the bank only retains statements for seven years. The Estate then presented testimony from Mrs. Erwin-Jenkins, who testified that she was the personal representative of the Estate and that, as the sole beneficiary of her sister's will, she was the recipient of Mr. Revard's sole asset—the house. She testified that she sold the house in October of 2021 for $270,000. After the trial, the trial court rendered an order involuntarily dismissing Mrs. Holley's claims, finding that Mrs. Holley "failed to meet her burden of proof by the preponderance of evidence" and "failed to meritoriously defeat the affirmative defense of laches." This court reviews the trial court's order determining child support arrearages for an abuse of discretion. O'Hara v. O'Hara, 564 So. 2d 1230, 1232 (Fla. 2d DCA 1990). Unpaid child support payments generally constitute vested property rights that are not subject to modification. Panganiban v. Panganiban, 396 So. 2d 1156, 1157 (Fla. 2d DCA 1981). Section 61.14(6)(a), Florida Statutes (2022), provides: 1. When support payments are made through the local depository or through the State Disbursement Unit, any payment or installment of support which becomes due and is unpaid under any support order is delinquent; and this unpaid payment or installment, and all other costs and fees herein provided for, become, after notice to the obligor and the time for response as set forth in this subsection, a final 5 judgment by operation of law, which has the full force, effect, and attributes of a judgment entered by a court in this state for which execution may issue. No deduction shall be made by the local depository from any payment made for costs and fees accrued in the judgment by operation of law process under paragraph (b) until the total amount of payments due to the obligee under the judgment has been paid. 2. A certified statement by the local depository evidencing a delinquency in support payments constitute evidence of the final judgment under this paragraph. In this case, the Final Judgment required Mr. Revard to pay $195 per week in child support and directed that the payments be made through the Central Governmental Depository, which was designated as the Clerk of the Circuit Court for Pinellas County. Mrs. Holley presented competent substantial evidence that Mr. Revard was delinquent in his obligation and owed $97,305 in unpaid support together with interest and fees for a total amount due of $282,070.64. Without a doubt, the evidence showed that no child support payments were paid into the depository after November 2, 1995, as ordered by the court. Of course, Mrs. Holley acknowledged that Mr. Revard did pay her $100 per week toward the support payments. This evidence went unrebutted by the Estate. Therefore, Mrs. Holley met her burden of proof of showing by a preponderance of the evidence that she was entitled to a judgment for the arrearages sought, and the trial court erred by finding otherwise. We next turn to the trial court's finding that Mrs. Holley "failed to meritoriously defeat the affirmative defense of laches." While unpaid child support constitutes a vested property right that generally may not be modified, there are extraordinary circumstances in which the trial court can refuse to enforce payment of past due child support. See Panganiban, 396 So. 2d at 1157. One such circumstance can be when the obligor establishes the affirmative defense of laches. Id. 6 This court reviews the trial court's application of the doctrine of laches for "abuse of discretion, provided there is competent, substantial evidence for each element of the doctrine applied." Dep't of Revenue v. Holley, 86 So. 3d 1199, 1202-03 (Fla. 1st DCA 2012). "Laches is an affirmative defense. As such, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence." Van Meter v. Kelsey, 91 So. 2d 327, 332 (Fla. 1956). To establish the defense of laches, the Estate was required to prove: (1) conduct by the defendant that gives rise to the complaint; (2) that the plaintiff had knowledge of the defendant's conduct and did not assert the opportunity to institute suit; (3) lack of knowledge by the defendant that the plaintiff will assert the right upon which suit is based; and (4) extraordinary injury or prejudice. Ticktin v. Kearin, 807 So. 2d 659, 664 (Fla. 3d DCA 2001) (first citing McIlmoil v. McIlmoil, 784 So. 2d 557 (Fla. 1st DCA 2001); then citing Garcia v. Guerra, 738 So. 2d 459 (Fla. 3d DCA 1999); and then citing Dean v. Dean, 665 So. 2d 244 (Fla. 3d DCA1995)). Although a claim for child support may be defeated by laches, "rarely have the courts found the exceptional circumstances necessary to justify the application of that doctrine. In all events the welfare of the child is paramount and in the absence of extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages." Golden v. Lewis, 647 So. 2d 979, 980 (Fla. 2d DCA 1994) (quoting Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979)); see also Dep't of Revenue ex rel. Hewett v. Grant, 913 So. 2d 108, 109 (Fla. 1st DCA 2005) ("[Florida] courts have long recognized that strong public policy proscribes application of laches to child support matters except under 7 the rarest of circumstances." (alteration in original) (quoting Ticktin, 807 So. 2d at 663-64)). As an initial matter, the trial court erred in finding that Mrs. Holley failed to meritoriously defeat the affirmative defense of laches without first finding that the Estate had established its defense of laches—a task the Estate failed to do. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096-97 (Fla. 2010) (recognizing "that the burden of proving each element of an affirmative defense rests on the party that asserts the defense" and that "the plaintiff is not bound to prove that the affirmative defense does not exist"). "Mere delay in filing an enforcement suit, even if the payee spouse knows where the payor spouse is, is not sufficient in itself to constitute laches." Gardiner v. Gardiner, 705 So. 2d 1018, 1021 (Fla. 5th DCA 1998) (citing Popper v. Popper, 595 So. 2d 100, 104 (Fla. 5th DCA 1992)). "The delay must practically preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, making the achievement of equity doubtful or impossible, or subsequent events must have rendered it inequitable to enforce the asserted right." Logan v. Logan, 920 So. 2d 796, 799 (Fla. 5th DCA 2006). In fact, the Estate failed to meet its burden in establishing almost every element required to prove laches, except for the first element, which was satisfied because there was evidence that Mr. Revard failed to pay his support obligations—giving rise to the complaint. The second element requires knowledge by Mrs. Holley of Mr. Revard's conduct and evidence that despite this knowledge she did not take the opportunity to institute suit. While there certainly was evidence that Mrs. Holley knew she was owed the unpaid support in 2016 after the closing on the house, the evidence also showed that she did in fact take the opportunity to 8 seek the advice of counsel and filed the Motion for Contempt. As to the third element, the Estate cannot prove that Mr. Revard lacked knowledge that Mrs. Holley would pursue her claim for the arrearages where Mrs. Holley commenced contempt proceedings against Mr. Revard. Moreover, as to the second and third elements, Mr. Revard is prevented from defending Mrs. Holley's claims on the grounds of laches due to his unclean hands. See, e.g., Newman v. Newman, 459 So. 2d 1129, 1131 (Fla. 3d DCA 1984) (holding appellee was not entitled to assert the defense of laches against claim for arrearages where appellee was "apparently guilty of 'unclean hands' in this matter for having failed to comply with his court-ordered child support obligation or to seek modification thereof"). There was evidence that Mr. Revard did not know that Mrs. Holley would seek to assert her right to the unpaid child support; indeed, Mrs. Holley testified that she agreed not to move forward after Mr. Revard told her that he was leaving the house to their son. Contrary to the representations made to Mrs. Holley, Mr. Revard did not, in fact, leave the house to their son pursuant to the arrangement he made with Mrs. Holley in exchange for her not pursuing a claim for arrearages. Under these facts, the Estate should have been barred from asserting the defense of laches. Finally, and most important, there was no evidence offered by the Estate of extraordinary prejudice caused by the delay in seeking the arrearages. "[T]he mere inconvenience of having to meet an existing obligation imposed by an order or judgment of a court of record at a time later than that specified in such an order or judgment cannot be called material prejudice." Ticktin, 807 So. 2d at 664-65. While the Estate presented evidence that Mr. Revard's bank records no longer exist, the Estate did not claim that Mr. Revard had paid the court-ordered amount, 9 nor did the Estate dispute that Mr. Revard had paid the $100 per week or that he had paid any other amount. So even assuming arguendo that these bank records did exist, they would not have supported the laches defense to Mrs. Holley's claim for unpaid support. Further, there was no evidence that the bank records were the only records available to support the Estate's defense. In fact, Mrs. Holley testified that she had requested Mr. Revard's past tax returns, to which the Estate's counsel responded that the Estate did not have them. Indeed, the tax returns may have shown any child support payments made by Mr. Revard and claimed on his taxes. Yet no such evidence was presented by the Estate. Id. at 665 n.5 ("It is not enough for a party to simply claim records are unavailable in order to establish the requisite prejudice to apply laches."). Because this matter is being reversed and remanded for calculation and adjudication of the outstanding arrearages, we also take the time here to note that the arrearage claim should have been treated as supplemental to the original family suit for divorce, to be decided as a separate, stand-alone complaint for final consideration by the circuit court. See Guinta v. Lo Re, 31 So. 2d 704, 705 (Fla. 1947) (holding that suit by former wife against former husband's estate for adjudication of past due child support should not have been transferred to "law side" of the court and should have been treated as supplemental to the original suit for divorce). In which case, Mrs. Holley's complaint for arrearages should have been transferred to the family court division where the original dissolution proceeding was assigned. See Weaver v. Hotchkiss, 972 So. 2d 1060, 1062 (Fla. 2d DCA 2008) ("If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule." (quoting Fort v. Fort, 951 10 So. 2d 1020, 1022 n.2 (Fla. 1st DCA 2007))). Transferring the case to the divorce court would have also ensured compliance with rule 12.491, Florida Family Law Rules, which provides that [u]pon the filing of a cause of action or other proceeding for the establishment, enforcement, or modification of support to which this rule applies, the court or clerk of the circuit court shall assign such proceedings to a support enforcement hearing officer, pursuant to procedures to be established by administrative order of the chief judge. Fla. Fam. L. R. 12.491(d) (emphasis added). In order for rule 12.491(d) to apply, it must be specifically invoked by administrative order of the chief justice for use in any particular county or circuit court. Fla. Fam. L. P. 12.491(a). Here, the Sixth Circuit has invoked rule 12.491 in administrative order no. 2019-056. Mrs. Holley's arrearage case should have been transferred to the family law division and first heard by an appropriate child support enforcement hearing officer for the determination of arrearages, if any. Accordingly, because Mrs. Holley presented evidence sufficient to entitle her to a judgment for arrearages and because the Estate failed to establish the defense of laches, we reverse the order granting involuntary dismissal and remand for the trial court to transfer this case to the family law division for the calculation and adjudication of the child support arrearages claimed by Mrs. Holley. Reversed and remanded with instructions. KELLY and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. 11