Bardol v. Martin

• Decision Date: 22 December 1999
• Docket Number: No. 98-2918.,98-2918.
• Citation: 763 So.2d 1119
• Parties: Jamie BARDOL and Lori Bardol, Appellants, v. Mary MARTIN, Appellee.
• Court: Florida District Court of Appeals

763 So.2d 1119

Jamie BARDOL and Lori Bardol, Appellants, v. Mary MARTIN, Appellee.

No. 98-2918.

District Court of Appeal of Florida, Fourth District.

December 22, 1999.

Jerome L. Tepps of Jerome L. Tepps, P.A., Fort Lauderdale, for appellants.

Marc H. Brawer of the Law Office of Marc H. Brawer, Sunrise, for appellee.

GUNTHER, J.

The appellants seek reversal of the final judgment entered in favor of the appellee, their mother. On appeal, the appellants argue the trial court erred in granting a summary judgment determining that a cause of action for retroactive child support does not exist. We affirm.

The appellants are the twin adult daughters of the appellee, who abandoned them in 1981. They were raised by a third party, who is not a party to this action. The day before their eighteenth birthday, the appellants filed a petition seeking past due child support from the appellee. This petition was dismissed for lack of standing, and the appellants filed an amended petition after reaching majority.

The appellee filed a motion for summary judgment, alleging that the appellants would be entitled to support retroactive only to the date of the petition, i.e., one day. The appellants conceded that if the trial court was unwilling to recognize an action for retroactive child support prior to the date of the petition, summary judgment was proper. The trial court granted the summary judgment on the basis that, other than in paternity cases, child support may be awarded retroactively only to the date of the petition.

The appellants, in the present case, are seeking retroactive child support, i.e., support which accrued prior to the filing of their petition. In Florida, claims for retroactive child support have traditionally been sought in dissolution or paternity actions. Regarding dissolution, courts generally have only awarded retroactive child support back to the date the petition for support or modification of existing support was filed. See Waite v. Kennedy, 724 So.2d 572 (Fla. 3d DCA 1998)

; Gherardi v. Gherardi, 712 So.2d 1236 (Fla. 4th DCA 1998); Anderson v. Anderson, 609 So.2d 87 (Fla. 1st DCA 1992). On the other hand, in paternity actions, retroactive child support has generally been awarded to the mother, often dating back to the birth of the child, which is when the child's needs arose. See Mason v. Reiter, 564 So.2d 142 (Fla. 3d DCA 1990); Watkins v. Jackson, 487 So.2d 99 (Fla. 4th DCA 1986); Coleman v. Mackey, 424 So.2d 170 (Fla. 3d DCA 1983); McQueen v. Stratton, 389 So.2d 1190 (Fla. 2d DCA 1980).

Recently, the legislature has added section 61.30(17), Florida Statutes (1997), regarding retroactive child support. However, the parties agree this newly enacted statute does not apply in the present case. Rather, on appeal, the appellants argue that the present case is more analogous to a paternity action, wherein retroactive child support can be awarded. The appellee responds that this case is not a paternity action, and as such there is no authority upon which to award the appellants retroactive child support.

The appellants rely upon two cases to assert a cause of action exists. First, the appellants rely upon H.R.S. v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992), wherein HRS, acting on behalf of the mother, attempted to enforce the child support obligation of the father imposed in a prior divorce decree. See id. at 654, 656. According to the Fifth District, "There are several sources for the duty to pay child support. The duty can be strictly legal based on common law or statute (§ 61.13(1), Fla. Stat.) or it can be strictly contractual, or it can be a confusion of both." Id. at 654 (citations omitted).

However, Holland is easily distinguished from the present case. In Holland, the children were over eighteen and a divorce decree ordering the father to pay child support was the basis for the support obligation. As such, the dispute in Holland was over arrearages rather than retroactive support. Yet, in the present case there is not a court decree entitling the appellants to support as the basis for this action.

The appellants also rely upon Fowhand v. Piper, 611 So.2d 1308 (Fla. 1st DCA 1992), wherein the First District upheld an award of retroactive child support to the mother in a paternity action. See id. at 1311-12. However, the present case is not a paternity action and as such is distinguishable from Fowhand.

Thus, the appellants fail to carry their burden on appeal by citing any Florida case recognizing an adult child's standing to sue a parent for retroactive child support absent a previous court order establishing a child support obligation. This is not a case where a custodian or government agency is seeking reimbursement for funds expended on the children during their minority. While the dissent argues the appellants have a common law right to retroactive support, our research reveals no case anywhere in which adult children have successfully maintained a suit against their parents for retroactive support. In fact, it seems there would be good policy reasons why an adult child would not have standing to sue a parent under these circumstances. The appellants do not allege the care-giver failed to adequately provide for the appellants, and the record does not indicate the appellants are seeking reimbursement on their care-giver's behalf. Rather, it appears they are seeking reimbursement for expenses they did not incur, which would amount to a windfall. As an intermediate appellate court, our function is to correct errors based on statutory law and judicial precedent, not create judicial policy by clarifying the law and promulgating new rules of law. See Whipple v. State, 431 So.2d 1011, 1014 (Fla. 2d DCA 1983)

. If the Florida Supreme Court wishes to recognize an adult child's standing to sue a parent for retroactive child support under the circumstances presented by this case, then that is its prerogative. To that end, we certify the following question to be of great public importance:

DO ADULT CHILDREN HAVE STANDING TO BRING SUIT ON THEIR OWN BEHALF AGAINST A PARENT FOR RETROACTIVE CHILD SUPPORT, ABSENT AN AGREEMENT OR COURT ORDER PREVIOUSLY ESTABLISHING A CHILD SUPPORT OBLIGATION?

We affirm the trial court's order.

AFFIRMED.

GROSS, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J., dissenting.

The parental duty to support one's minor children is so elemental as to predate law itself. In State ex rel. Airston v. Bollinger, 88 Fla. 123, 101 So. 282 (1924), the court acknowledged that:

"These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure."

101 So. at 283 [c.o.]. Similarly in Bezanilla v. Bezanilla, 65 So.2d 754, 756 (Fla.1953), the court said that:

"The highest spiritual and moral concepts, as well as the law, demand that the father, as far as his means reasonably permit, support them and this is a continuing duty until the children reach their majority or become self-supporting."

65 So.2d at 756. In Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955), the court placed this duty before any necessity of judicial recognition or agreement of the parent, declaring:

"There can be no doubt that the obligation of the father to support his minor children is a `continuing' one.... It exists irrespective of a divorce decree awarding their custody to the mother. It may be enforced by the courts in a manner inconsistent with a contractual obligation...."

80 So.2d at 658 [c.o.].¹

In fact so clear is the duty of parental support that the legislature has made it a crime to fail to do it. Section 856.04(1) unambiguously states that:

"Any man ... who shall willfully withhold from them ... the means of support, or any mother ... who shall willfully withhold from [her children] the means of support, shall be guilty of a felony of the third degree...."

§ 856.04(1) Fla. Stat. (1997).² The state could hardly punish the failure to carry out a duty that one is not clearly obligated to perform. Yet there is nothing in any statute specifically providing that parents have a duty to support their minor children, on pain of the breach of which they are subject to criminal penalties.³ The duty of child support thus being a priori, it is hardly surprising that both the common law and the statutes readily enforce the obligation. As the third district said in Ash v. Coconut Grove Bank, 443 So.2d 437, 438 (Fla. 3rd DCA 1984):

"Under the common law, a parent or legal guardian has the sole obligation to provide his child with the necessities until he reaches the age of majority." [c.o.]

In Ramey v. Fassoulas, 414 So.2d 198, 200 (Fla. 3rd DCA 1982), the same court simply found it part of "our law":

"Indeed, it has been embedded in our law for centuries that the father and now both parents or legal guardians of a child have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted." [e.s.]

See also Zolonz v. Zolonz, 659 So.2d 451, 452 (Fla. 4th DCA 1995)

("Until the child reaches majority, the law of the state of Florida imposes on a parent the obligation to support his or her minor children."); Ciociola v. Ciociola, 302 So.2d 462, 463 (Fla. 3rd DCA 1974) ("We think that it has been determined in Florida that a father has an enforceable obligation to support his children irrespective of a judgment of divorce."). [c.o.] This notion was summed up in Department of Health & Rehabilitative Services v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992), where the court stated:

"There are several sources for the duty to pay child support. The duty can be strictly legal based on common law or statute (§ 61.13(1), Fla.Stat.) or it can be strictly contractual, or it can be a confusion of both."

602 So.2d at 654 [c.o.]. That court also recognized the undeniable proposition that the...