What Can Be Considered to Receive Alimony or Child Support: Case Example

The Dade County Court of Appeals have addressed the issue of whether or not gifts or loans from parents or friends can be considered in determining the ability to pay or receive alimony or child support.

In SIBLEY VS. SIBLEY, 833 So.2d 847 (3rd D.C.A. 2002) the Third District Court of appeals addressed the issue of gifts from parents when Montgomery Sibley was incarcerated for failure to pay past due alimony and child support. The evidence was sufficient to support the judge’s finding that Montgomery Sibley had the ability to pay the purge amount of $100,000 in child support arrearages so as to justify his incarceration for civil contempt. Mr. Sibley’s father had repeatedly supplied him with large sums of money for several purposes except the particular obligation to pay child support to Barbara Sibley. The record demonstrated that Mr. Sibley could command the payment of the purge amount simply by asking his very wealthy father who had given many hundreds of thousands of dollars to Montgomery Sibley for any and every purpose except this particular child support obligation.

The records showed that Mr. Sibley refused to call his father for the money only from a vendetta he had against his ex-wife and not from any “inability to pay”.

It is recognized by this author that the general rule of law is that the court cannot base a finding of need or an ability to pay alimony, child support or attorney’s fees based upon gifts or loans from friends or family. However, we are in a court of equity and sometimes the general rule has to recognize exceptions. Each case is to be tried on its own facts. In this case loans and/or gifts from friends or family should be considered in determining ability and need.

In 2014 the Fourth District Court of Appeals addressed the issue in STEELE VS. LOVE, 143 So.3d 1020 (4th D.C.A.2014). In the Steele case the former husband was unemployed but was starting a business that had not yielded any income. His parents paid for his living expenses for the nineteen months between the filing of the petition for dissolution of marriage and the trial.

On the day of trial the former husband filed an amended financial affidavit attesting that he receives $2,600 in non-permanent recurring monthly income from his parents.

While the former husband’s father testified that he may not be able to continue the payments indefinitely. he and his wife will continue to support his son as long as they could.

The evidence supported the trial court‘s imputation of $2,600 in income to the former husband. The Fourth District Court of Appeals ruled:

Regular periodic payments to a child by a parent are considered income for child support determination.

Section 61 .30(2)(a)(1 3) specifically lists “reimbursed expenses or in kind payments to the extent that they reduce living expenses” as gross income to be considered in determining child support.

About the Author

Stephen Butter