Campagna v. Cope

• Court: Florida District Court of Appeals
• Writing for the Court: Altenbernd
• Citation: Campagna v. Cope, 971 So.2d 243 (Fla. App. 2008)
• Decision Date: 04 January 2008
• Docket Number: No. 2D06-3527.,2D06-3527.
• Parties: Mary Kate CAMPAGNA, f/k/a Mary Kate Cope, Appellant, v. Douglas Arthur COPE, Appellee.

971 So.2d 243

Mary Kate CAMPAGNA, f/k/a Mary Kate Cope, Appellant, v. Douglas Arthur COPE, Appellee.

No. 2D06-3527.

District Court of Appeal of Florida, Second District.

January 4, 2008.

Herbert Elliott, Tarpon Springs, for Appellant.

No appearance for Appellee.

ALTENBERND, Judge.

Mary Kate Campagna appeals a final judgment of dissolution from her husband Douglas Arthur Cope. Following a default by the Husband, the trial court denied the Wife's undisputed claim for retroactive child support and unpaid children's medical expenses because the youngest child had become a legal adult shortly before the filing of the petition. The Wife filed a motion for rehearing, attempting to explain her legal right to this support. We conclude that the trial court abused its discretion in denying rehearing. Although the Wife waited until her youngest child was a legal adult to file for dissolution, she is entitled to seek retroactive child support for her youngest child for that portion of the twenty-four months preceding the filing of her petition when the child was a minor and the parties were separated.

The Husband and Wife married in 1979. They have two children—one born in 1985 and the other born in 1987. Although the parties separated in the late 1990s, the Wife filed her petition for dissolution of marriage on December 12, 2005, after both children had become legal adults. The younger child reached majority one month before filing; the older child turned eighteen in 2003, more than two years before the filing of the petition.

The Wife filed her petition pro se, using the standard Family Law Form 12.901(b)(1), entitled "Petition for Dissolution of Marriage With Dependent or Minor Child(ren)." The Wife did not seek alimony and claimed that there were no marital assets or liabilities to divide. Under item number 4 entitled "Dependent or Minor Child(ren)," she accurately marked "N/A" because there were no minor children. In the sections of the form regarding child custody and child support, however, she referred to an attached "Exhibit A." She specifically marked in section IV(1)(a) of the form that she was seeking child support retroactive to the date of separation, January 1, 1998.

In the attached Exhibit A, the Wife explained she was requesting retroactive child support and reimbursement for health care expenses. The couple's income was modest, and thus the estimated child support for the two years prior to filing the petition totaled approximately $7027, in light of a $2200 credit for support that the Wife admitted the Husband had paid voluntarily. She also requested reimbursement for $6668 she paid in health insurance premiums for the family, with no delineation between the amount paid for the Husband and the amount paid for the children, and for the Husband to be required to pay for one-half of the children's health insurance premiums until they turned twenty-one years old. Finally, she wanted the Husband to pay an outstanding medical bill of $550 for expenses incurred when the older child was hospitalized in 2004 at what appears to be the age of nineteen. In total, the Wife sought $14,265.

The Husband did not answer the petition or otherwise appear in the trial court. Accordingly, a clerk's default was entered against him.

The trial court held a final hearing in April 2006. Though the hearing was not transcribed, it appears the Husband was provided notice and did not attend. The court filed the Wife's exhibit, which detailed the amounts discussed above that she sought in the dissolution. According to the motion for rehearing, when the court asked whether a child support worksheet had been filed, the Wife offered to continue the hearing to obtain any additional documentation the court needed in support of the retroactive support.

On April 18, 2006, the trial court entered a final judgment dissolving the marriage, but denying the Wife's request for child support and unpaid medical expenses because the petition listed no minor children a completed Uniform Child-Custody Jurisdiction and Enforcement Act affidavit (UCCJEA) had not been filed, and there was no testimony provided concerning the names and dates of birth of the adult children.

The Wife retained counsel and moved for rehearing or new trial, arguing that retroactive support was appropriate and explaining that she had accurately filled in the standard form petition for dissolution, had provided information about the adult children, and did not realize that more evidence would be required when the case was in default status. With the motion for rehearing, she provided a UCCJEA affidavit for each child, using Florida Family Law Rule of Procedure form 12.902(d). She simply left blank the sentence: "The number of minor child(ren) subject to this proceeding is_______." Thereafter, she provided the names, dates of birth, and addresses for her two adult children.

The trial court held a hearing on the motion for rehearing and new trial, which was transcribed. At that hearing, the trial court focused primarily on whether the Wife had any right to receive retroactive child support when she had waited until the youngest child was an adult to file the dissolution proceeding. The trial judge opined that the court could not award child support if the petition was filed after the child had attained majority at the age of eighteen. The Wife disagreed, arguing that child support could be awarded for up to twenty-four months prior to the filing of the petition for dissolution pursuant to section 61.30(17), Florida Statutes (2005), because the parties were separated. The only legal authority discussed was Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA 1987), which the trial judge had located independently and believed was a case "right on point" requiring a denial of retroactive child support under these facts. As discussed later in this opinion, that case is not controlling.

When the trial court issued a written order denying rehearing, it expressly declined to decide whether the Wife had a right to retroactive child support. Instead, the trial court denied rehearing because the final judgment was based on the insufficiency of the evidence and the contradictory pleadings. The Wife appeals this ruling.

I. A PARENT MAINTAINS STANDING TO SEEK RETROACTIVE CHILD SUPPORT AFTER THE CHILD BECOMES A LEGAL ADULT

Because the Wife sought to proceed pro se, her request for monetary relief was perhaps not artfully drawn. As stated above, the Wife sought reimbursement for several expenses, including retroactive child support and medical expenses. To determine whether the Wife was entitled to reimbursement, the trial court was required to sort out these claims in light of the relief available under chapter 61.

Generally speaking, a dissolution of marriage action under chapter 61 permits claims of equitable distribution of assets and debts, alimony, child custody and visitation, child support, and attorneys' fees. Indeed, the form petition used by the Wife set forth these very categories, with the exception of attorneys' fees. Here, the Wife did not request alimony; there were no custody issues because the children were adults; and there were no attorneys' fees issues because the Wife initially proceeded pro se. The Wife's requests for financial relief must therefore be cast as either requests for equitable distribution or child support. Further, child support is only available to the Wife if she can seek retroactive support pursuant to section 61.30(17) because the children are adults.

The Wife claimed retroactive child support pursuant to section 61.30(17). That statute provides:

(17) In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:

(a) The court shall apply the guidelines in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor's income at the time of the hearing in computing child support for the retroactive period.

(b) All actual payments made by the noncustodial parent to the custodial parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.

(c) The court should consider an installment payment plan for the payment of retroactive child support.

This provision was added to section 61.30 in 1997 by chapter 97-170, section 11, Laws of Florida, in large part to eliminate the conflict and uncertainty that existed in the case law. See John W. Reis, Retroactive Child Support Awards: Reimbursement Versus Needs and Ability, 67 Fla. B.J. 71 (July 1993) (discussing pre-1993 conflict and uncertainty in the case law awarding retroactive child support).

At the hearing on the motion for rehearing, the trial court opined that a parent could not seek child support for a child, including retroactive child support, once a child turned eighteen and was no longer a minor. Such a ruling would have prohibited any claim by the Wife for monthly child support or assistance with the health insurance premiums for the children. In support of this proposition, the trial court cited Bridges, 506 So.2d 1047; yet Bridges is not authoritative on this issue because it was decided prior to the enactment of section 61.30(17) and merely notes that the issue of child support was "moot" because the child, although a minor when the action commenced, had become an adult before...