WEST PALM BEACH, Florida – A Florida appeals court is suggesting the state’s supreme court take up a child-support case where a woman is trying to sue her former husband’s employer.
The Palm Beach County woman alleges her ex-husband and his employer conspired to conceal his real income which prevented her from receiving her court-mandated child support payments. The Fourth District Court of Appeal court asked the Florida Supreme Court or the Legislature to take up the issue, saying it declined to impose such “a sweeping change” in Florida law.
Nova Southeastern University Law Professor Timothy Arcaro said the court is probably reluctant to create a definitive ruling because of the rarity of the case. To his knowledge, there’s never been one like it in Florida. Despite this, he said the facts of the case point to an employer breaking a court-ordered mandate to relinquish wages from an employee to circumvent child support payments – which, if proven done maliciously with collusion – is a violation of an order.
“The employer must have had an income withholding order,” Arcaro told The Florida Record. “That’s a separate obligation that falls solely on the employer’s shoulders. If the employer is working with the employee to reduce the reportable income, which reduces the employer obligation to take money out and lets the employee take more money home, that’s an intentional violation of the incoming order.”
Arcaro said a huge issue facing the nation is unpaid child support orders. He said lawyers are constantly trying to figure out a way to get non-custodial parents responsible for child support to pay up.
“Lawyers are trying to find answers to a very serious social problem of non-compliance with child support orders,” he said. “I applaud the effort to go after the employer if the employer has violated the law.”
While he wasn’t involved in litigating this case, he suspects once lawyers discovered an employer was allegedly trying to conceal wages, they determined a legal avenue was available to seek unpaid child support.
“If in fact the employer was involved in a collusive action, why not hold the employer responsible?” he said. “Why in the world would we not hold them accountable? When an employer works with an employee to deprive someone of their court-ordered support, it’s profoundly offensive.”
Arcaro said he sees little negative impact if the higher court takes up the case. While some fear an increase in non-meritorious lawsuits against employers, Arcaro said any legitimate lawsuit must have evidence a violation of an order. If the employer is the one that received the order, and violated it, Arcaro questions why they wouldn’t be sued.
In the Fourth District opinion of the case, Judge Robert Gross wrote that the expense of defending claims may be prohibitive to employers. He wondered whether employers would stop employing parents who pay child support.
But Arcaro argues this worry is not reasonable. He pointed to the thousands if not millions of divorced and single parents in the workforce. He said he thinks the order could cause more people to think twice about getting out of child support.
“I don’t see it as a bad thing,” he said. “The law expects you to comply with a court order."