Grandchild support.

• Author: Stolberg, William H.
• Position: Florida

It has been a long-standing fundamental principle of family law that in all matters regarding alimony, child support, property distribution, and attorneys' fees the courts will look to the parties to the marriage and not to third persons. In short, the parties married each other and not their respective family members or friends. Courts will not consider income and assets beyond the control of a husband or wife in determining financial ability to pay obligations arising out of a dissolution of marriage, (1) and aside from the rare exception involving fraudulent transfer, constructive trusts, and the like, will not impose liability for marital obligations on third parties. (2)

A recent noteworthy but actually very limited exception to this rule was set forth in the case of Ordini v. Ordini, 701 So. 2d 663 (Fla. 4th DCA 1997), in which recurring gifts from the parents of the husband were attributed to him as income and hence taken into consideration in determining his child support. This decision was a clear deviation from long-established precedent.

Although Ordini has since been followed in only one significant appellate opinion, (3) it appears it is being enthusiastically embraced by the members of the bar and blithely utilized and followed at the trial level without much regard for its limitations. This energetic application may be misplaced. Ordini has a much narrower scope than may be perceived at first glance, and its holding should be seriously scrutinized before being relied upon.

Ordini Holding Applies Only to Limited Set of Facts

The Fourth District Court of Appeal in Ordini felt a degree of uncertainty warranting certification of the following question to the Florida Supreme Court as a matter of great public importance: "Can a court consider regular, periodic gifts in determining income for purposes of establishing alimony and child support?"

Certification was denied, so there is no instructive opinion from the state's highest court. However, Ordini rested upon a very specific set of extraordinary facts. The child support payor's parents had supported the parties completely since the inception of the 12-year marriage by providing cash as well a salary from a family business for which the husband rarely actually worked. This largess averaged $6,500 monthly, and continued through trial. The husband's mother testified that she would continue to provide that support even after the divorce. The Ordini court noted in passing that this long-term complete support had effectively leached away whatever incentive the parties had to become self-sufficient.

The court cautiously distinguished between a payee situation and a payor situation, so as not to run afoul of the Supreme Court holding in Bedell v. Bedell 583 So. 2d 1005 (Fla. 1991). In Bedell, a modification case, the former wife had been financially kept afloat by the generosity of her mother since the divorce, and the former husband propounded that as an excuse for terminating his alimony and denying the wife an alimony increase. In granting the wife her increase, the Supreme Court held that in alimony cases (and inferentially in child support cases as well), subsidies from a parent, relative, or a generous third person are "legally irrelevant" to the determination of the need of the recipient. (4) The Ordini court noted that taking such subsidies into account would place the receiving and needy party in a "Catch-22": if a spouse accepted assistance from a third party, it would be argued that there was no need; if there was no assistance, the spouse remained impoverished. The burden of support would be impermissibly shifted, albeit indirectly, from the person legally charged and obligated to provide the support, to that third party.

Although the Ordini case stands for the proposition that third party support could be a factor in imputing income to a payor of child support, it did not directly address the issue of whether financial assistance given to a recipient of child support could be justification for reducing or eliminating the financial obligation of a payor. However, in Meighen v. Meighen, 813 So. 2d 173...