Cronebaugh v. Van Dyke

• Decision Date: 12 May 1982
• Docket Number: No. 80-1267,80-1267
• Parties: Beverly CRONEBAUGH, Appellant, v. Rufus Oscar VAN DYKE, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 738

415 So.2d 738

Beverly CRONEBAUGH, Appellant, v. Rufus Oscar VAN DYKE, Jr., Appellee.

No. 80-1267.

District Court of Appeal of Florida,

Fifth District.

May 12, 1982.

Rehearing Denied June 23, 1982.

Robert L. Thomas, Apopka, for appellant.

Hubert W. Williams of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P.A., Orlando, for appellee.

COWART, Judge.

Appellant, the former wife, sued appellee, her former husband, for alleged arrearages in child support. The trial court entered summary judgment for the father and dismissed the cause, ruling the mother did not have standing to enforce the alleged arrearage because, at the time the child support payments were supposedly not paid, the "children" were over eighteen years of age and able to sue in their own right. We affirm.

The parties were divorced in 1964. The dissolution decree incorporated an agreement which provided that the father would pay child support for the parties' three children in the mother's custody until each child attained majority, died, married or became self-supporting. The final decree also provided that the father would pay the costs and expenses incurred by each child in attending a college or university.

The appellee father paid to the appellant custodial mother the stipulated child support for each child until the particular child reached 18 years of age and even thereafter until the particular child moved away from the mother's home and into his own apartment or fraternity house in September following his 18th birthday. ¹ Thereafter the father paid the required support amount and costs and expenses of college directly to the child. The mother waited until after the two oldest children had each received directly from their father "monies far in excess" of the father's formally adjudicated support obligation and were both over 21 years of age; then the mother sued the father for the amount of support due under the support judgment for the three years she did not receive the support payments, saying that by the terms of the final judgment her right to receive the child support accruing after the child was 18 years of age was vested in her. The father maintained that he had satisfied his obligation by his payments directly to the children, rather than through their mother. The mother moved for summary judgment, admitting the father had paid the support directly to each child, but asserting that the support obligation was due her. The father filed a motion for judgment on the pleadings or alternatively a motion to dismiss for failure to state a cause of action, arguing that, with regard to support obligations admittedly due a "child" between the ages of 18 and 21, enforcement rests with the child and therefore the mother did not have standing to sue. On these facts and procedural setting the trial court granted summary judgment for the father. ²

The trial court's order can be affirmed on either of two grounds. First, the trial court correctly determined that the wife lacks standing to enforce any support obligation due the child after the child turns 18. A minor child has a legal right to support from both parents in keeping with its needs and the parents' ability. This parental duty to support a minor child is created by law, exists before ³ and after dissolution of the marriage to which the children were born, and is independent of any settlement agreement made attendant upon dissolution. The parents' obligation of support cannot be bargained or stipulated away by parents so as to deprive the minor of the benefit thereof. ⁴ However, a minor is under a disability of nonage that prevents the minor from suing to enforce its own rights. While it is under the disability of minority, the child's right to support must be enforced by a legal representative, such as a guardian or other like fiduciary, a guardian ad litem or a next friend, ⁵ but more commonly it is enforced against one parent by an opposing parent, as natural guardian, or by a governmental agency. ⁶ In each event, the recipient of the child support receives the support monies, not in his own right or for his own benefit, but in trust for the cestui que trust, who is the child. Child support is a right that belongs to the child. ⁷

The same event that removes the child's disability--its arrival at the age of majority--is usually the same event that terminates the parents' duty to support. Hence, the problem of an emancipated child suing his or her parent for nonsupport would normally never arise. However, the enactment of section 743.07(3), Florida Statutes (1973), allows such a result. Section 743.07(3) does not affect rights and obligations existing prior to July 1, 1973, and the father's prior duty of support is therefore not affected. However, the effect of section 743.07(1), Florida Statutes (1973), is to remove the disability of nonage of persons who are 18 years of age ⁸ and enables them to enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older. This means a person 18 years of age or older has the right to receive, and to assume the management of, his own estate, to contract and to be contracted with and to sue and to be sued. This effectively gives such person a new remedy --the right to sue in his own name to enforce his own legal rights. By virtue of this statute, young adults become legally emancipated, sui juris and can no longer accurately be said to be in the custody of either parent.

Provisions in dissolution settlement agreements relating to payment of child support, even when incorporated by reference in final judgments, serve only to formalize and document the promisor's pre-existing legal duty of support, to state the frequency and amount of periodic payments, theretofore unliquidated, which at that time the relevant parties agree will discharge the promisor's support duty and to recognize who is to receive the support on behalf of the minor. The recipient receives the sums as trustee for the children. That such agreements are not the basis for the right to child support is demonstrated by the fact that they are subject to modification by the court as to these provisions. ⁹ If support orders, whether based on settlement agreements or not, were personal to the minor's custodian, who is the usual recipient, the obligation would not survive the death of the designated payee and this is not true. The trustee nature of the recipient of child support is also illustrated by the last sentence in section 61.13(1), Florida Statutes (1979), which provides that the court entering the support can require "the person or persons awarded custody of the child or children to make a report to the court on terms prescribed by the court as to the expenditure or other disposition of said child support payments." The law does not require one to account for his own personal funds.

To the extent that in an agreement a parent may, as here, agree to pay sums for the benefit of a child which are in excess of the duty imposed by law, such as the cost of higher education, the child, who is a third party donee beneficiary of any such executory contract, has a vested pecuniary interest in performance. In cases of this sort, as in contract law generally, it is the beneficiary, not the promisee, who is entitled to performance and who, subject to defenses and conditions, has a cause of action against the promisor and who is entitled to receive the performance which discharges the obligation. ¹⁰ Since child support is truly a right of the child and can be enforced by the child once he or she turns eighteen, the wife in the present case does not have standing to sue. ¹¹

In relying on Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978), the trial court relied on the following passage:

The award of child support, although made to the mother as the child's natural guardian, is solely for the benefit of the child, who, because of the disability of non-age, lacks the legal status to bring suit directly against his parent for support. Under Florida law, when a child reaches eighteen years of age, this disability of non-age is removed, and if an obligation of support exists, the child may proceed in his own right in a court of competent jurisdiction to establish such obligation. See Rudnick v. Solomon, 311 So.2d 385 (Fla. 3d DCA 1975). The parent who formerly had legal custody of the child has no pecuniary interest in such litigation. Thus, once a normal child reaches majority, a parent has no standing to seek support money for that child in the courts of this state.

360 So.2d at 485.

This appears to be a good and applicable statement of law. A person who has reached the age of 18 can no longer accurately be called a child. Instead, he or she is a young adult who can remove himself from the custody of his mother. Although the supreme court has interpreted agreements to pay support until majority to mean until 21, ¹² once the child reaches 18 he can enforce this support obligation himself.

Notwithstanding the standing issue, the trial court's summary judgment can be affirmed on the issue of payment. In this case there is no issue but that the father had paid the sums due after the children reached 18 years of age directly to the children when they moved away from home. ¹³ This payment satisfied and discharged the father's duty. This was sufficient alone to justify the summary judgment entered by the trial court. However, realizing that the children were not parties to the cause, the able trial judge carefully provided that the dismissal of the mother's cause was "without prejudice to the recipient of the obligation to seek enforcement in a separate action."

The trial court was correct in granting the father's motion for summary judgment and the order is hereby

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

SHARP, J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge, specially concurring:

I do not interpret the...