5D05-101 Logan v.Logan

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-101

Case Date: 02/13/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

JAMES LOGAN, SR., Appellant, v. JOAN LOGAN, Appellee. ________________________________/ Opinion filed February 17, 2006. Appeal from the Circuit Court for Volusia County, Patrick G. Kennedy, Judge. Robert S. Thurlow of Robert S. Thurlow, P.A., New Smyrna Beach, for Appellant. C. Michael Barnette of the Law Office of C. Michael Barnette, Daytona Beach, for Appellee. Case No. 5D05-101

THOMPSON, J. James Logan ("James") appeals an order from the circuit court denying his motion to contest registration of a California support order that established arrearages of $16,520. James contends that the court should have accepted his affirmative

defense of laches. We affirm, finding he did not prove that he paid child support. 1 More important, James's testimony did not establish prejudice to support his defense of

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)). James filed a petition for dissolution of marriage in California in 1987. The court granted the petition, and James and Joan Logan ("Joan") were divorced in June 1987. Two children were born of this marriage; one in 1974, and the other in 1975. The divorce decree granting James's petition directed him to pay $160 biweekly in child support. James testified that he was unaware of any child support order and that he never received the divorce decree, although he married another woman soon after the decree was entered. Nevertheless, he alleged that he paid $200 or $300 in cash or money order biweekly throughout the children's minority. He testified that he destroyed his payment records because his accountant told him he could destroy records after three years. Joan moved to Florida in 1990. In 1992, the Florida Department of Health and Rehabilitative Services initiated a case in the California Superior Court for the County of Los Angeles on Joan's behalf. Initially, James testified before the hearing officer that he was never aware of this action and that nothing happened in Los Angeles in 1993. However, Joan submitted a July 1993 order from the California court that indicated James, through counsel, moved to continue the case to 26 October 1993. James was "ordered to return on above date without further order, notice or subpoena." He did not return to court as scheduled and on 26 October 1993, the court proceeded in his absence and entered a judgment that established an arrears account of $16,520 as of

Although James argued the affirmative defense of payment to the hearing officer, he does not raise that as an issue on appeal. We address the issue only as it relates to his laches argument. -2-

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30 June 1992, without prejudice. The registration of that order is the subject of this appeal. Less than two months after the 1993 order was entered, James moved from California without notifying the court of his new address. He moved to three different New York residences before June 1996, when he moved to England. He alleged that he was never aware of any action by Joan to acquire arrearages, although he later became aware of the arrearages because of a notation in his credit report. Joan made several attempts to acquire support with the assistance of the Florida Department of Revenue in 1995 and 1996. She only discontinued her efforts when she learned that James had moved to England. James moved to Florida in 2000 or 2001 and resided in the same community as Joan and their children. James alleged that Joan never

mentioned arrearages when she visited him; Joan insisted that she did. On 18 December 2002, Joan began an action to register the 1993 support order under the Uniform Interstate Family Support Act, Chapter 88, Florida Statutes (2002). James contested registration and invoked three affirmative defenses: laches, payment, and lack of due process. He alleged that laches applied because Joan waited more than nine years to enforce the order. Further, he claimed that he had paid all support. Finally, he asserted lack of due process concerning notice because the California order was entered without his presence or knowledge, and he never received the order. In March 2004, the hearing officer entered a report summarizing the parties' testimony at the February hearing. The report noted that James contested the

California court's personal jurisdiction and lack of process, despite the fact he appeared at a July 1993 hearing and requested the continuance to October 1993. The hearing

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officer recommended staying enforcement of the order for 60 days so that James could file an action in California to challenge the validity of the order. James withdrew his lack of due process affirmative defense. On 14 December 2004, the hearing officer denied James's defenses (payment and laches) and recommended the registration of the 1993 support order. The hearing officer found that, although James said he paid Joan $200 to $300 per month for child support, he offered no receipts to prove payment. Without proof of payment, other than James's word, the hearing officer was unable to find that payment was made. As to laches, the hearing officer claimed that the injury or prejudice was clear because James could not prove payment because he destroyed his records. However, the hearing officer found that laches was not applicable because Joan diligently pursued collection of child support by initiating legal action several times over several years to seek enforcement. The circuit judge approved and confirmed the report and

recommendation. To contest the registration of the order, James had the burden of proving any applicable defenses.

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