Department of Health and Rehabilitative Services, Child Support Enforcement v. Holland

• Decision Date: 10 July 1992
• Docket Number: No. 91-2148,91-2148
• Citation: 602 So.2d 652
• Parties: 17 Fla. L. Weekly D1660 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, CHILD SUPPORT ENFORCEMENT, etc., Appellant, v. Robert Lee HOLLAND, Appellee.
• Court: Florida District Court of Appeals

Page 652

602 So.2d 652

17 Fla. L. Weekly D1660

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, CHILD SUPPORT ENFORCEMENT, etc., Appellant, v. Robert Lee HOLLAND, Appellee.

No. 91-2148.

District Court of Appeal of Florida,

Fifth District.

July 10, 1992.

Amanda Traweek of Carlton & Carlton, P.A., Lakeland, for appellant.

Peter A. Collins of Law Offices of Peter A. Collins, Coral Gables, for appellee.

COWART, Judge.

The Department of Health and Rehabilitative Services, Child Support Enforcement (HRS) filed a motion on behalf of a mother (former wife) against a father (former husband) seeking to recover alleged child support arrearages. The trial court found and held that the child support in question related to arrearages accruing after the children Blue involved post-majority enforcement of pre-majority arrearages. This instant case involves post-majority enforcement of post-majority arrearages and is controlled by Cronebaugh. See also Turner v. Turner, 553 So.2d 1385 (Fla. 5th DCA 1990) and Friedman v. Friedman, 508 So.2d 781 (Fla. 4th DCA 1987).

reached 18 years of age, and held that under those circumstances and under Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982), rev. denied, 426 So.2d 25 (Fla.1983), the cause of action to enforce the father's child support obligations and to collect those arrearages belonged to the children and that their mother, as such, did not have standing to enforce the children's rights and to collect from their father the money due the children. Accordingly, because the mother did not have the right or standing to collect the support due the children from their father, neither did HRS have the right or standing to collect those sums on behalf of the former wife. HRS appeals citing H.R.S. v. Blue, 564 So.2d 243 (Fla. 5th DCA 1990). We affirm.

There are several sources for the duty to pay child support. The duty can be strictly legal based on common law or statute (Sec. 61.13(1), Fla.Stat.) or it can be strictly contractual, or it can be a confusion of both. See, Simpson v. Simpson, 108 So.2d 632 (Fla. 2d DCA 1959); Ciociola v. Ciociola, 302 So.2d 462 (Fla. 3d DCA 1974). Separation agreements appurtenant to dissolution actions are often of the last category. The distinction between purely law-imposed duties and purely contractually-assumed duties should be more meaningful but they are blurred by two practices. The first practice is of using agreements to contract as to the amount satisfactory to discharge a duty imposed by statute or common law. The other practice is that of having a court approve and order payment of purely contract based duties. Agreements that merely recognize a legal (statutory or common law) duty and contract as to an amount cannot limit the duty imposed by law and the legal duty of parental support is always subject to court enforcement, any contract provision to the contrary notwithstanding. However, purely contract-based duties cannot be impaired by "modifications" by the court and are enforceable in the same manner as any other contract obligation. Confusion results from the practice of having a trial court approve an agreement relative to child support, and ordering payment, without distinctions as to, or appreciation for the difference between, support agreements merely quantifying the amount correctly necessary to discharge a legal (statutory or common law) duty and agreements establishing a purely contractual duty to pay an agreed amount of child support. Agreements to pay support after the children's legal majority, as for college costs, are examples of the latter type. Regardless of the basis for the support duty, legal or contractual, the child is the beneficiary and the real party in interest (see Florida Rule of Civil Procedure 1.210(a)) and the proper person to enforce the obligation except only when it is under the legal disability of non-age which is, of course, the common case, and it is only then that some other person, such as guardian, trustee, next of friend, or a party with whom or in whose name a contract has been made for the benefit of the child, or a party expressly authorized by statute, may sue without joining the child for whose benefit the action to collect child support is brought. See especially Florida Rule of Civil Procedure 1.210(b).

We are aware that others have sometimes questioned or disagreed with Cronebaugh ¹ and have shown inclinations to prefer a contrary view. However, the supreme court denied review in Cronebaugh and we continue to believe and to hold that (1) under law only one cause of action exists in one entity or person at one time; (2) that a child for whom child support is due from a parent is the equitable and legal beneficiary and the real party in interest and in legal contemplation owns the cause of action to recover monies due A parent seeking to enforce the obligation of the other parent to pay support for a minor child, even when acting in a proper capacity as custodian, guardian, next of friend, etc., is in a peculiar predicament because both parents owe the minor child a duty of support. Martin v. Martin, 480 So.2d 683 (Fla. 5th DCA 1985), rev. denied, 491 So.2d 279 (Fla.1986). Normally A does not have a right to sue B to enforce B's legal duty to do an act which A has the same legal duty to perform. In such cases A must perform the duty and is relegated to an action to seek contribution from the joint obligor B.

for its support; ² (3) when a child is under legal disability of non-age or otherwise, the mother, or anyone else, who is the lawful custodial or legal guardian for the child or even a next of friend, is entitled to collect child support money owed by the parent to discharge a legal duty for child support (Fla.R.Civ.P. 1.210(b)). In such cases, the guardian or trustee, next of friend, etc., (whether or not also a parent) holds the money in trust for the cestui que trust, who is the child, and has a fiduciary obligation to expend it only for the child's benefit--the money does not belong to the next of friend, custodian or guardian, Thompson v. Korupp, 440 So.2d 68 (Fla. 1st DCA 1983), nor may the next of friend, custodian or guardian contract away the child's right to support. Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979); Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955); (4) any non-volunteer stranger has a common law cause of action against either parent for the cost of necessities provided a child because of the parent's neglect to meet his or her legal parental duties to support that minor child. See generally In re S.M.G., 313 So.2d 761 (Fla.1975); Weinstein v. Weinstein, 148 So.2d 737 (Fla. 3d DCA 1963); (5) a child of lawful age and under no legal disability has the legal right to make the decision to enforce, and when to enforce, or not to enforce, its own legal rights; and (6) one parent of a child, as such, does not have the legal right or standing to enforce the child's cause of action or to collect support money from the other parent after the child is of age and is under no other legal disability. ³

In cases, such as this one, the mother is not alleging and seeking a contribution from the father for sums advanced by her beyond her own legal responsibility and out of necessity and used for the actual support of a minor during the period for which the father owes a legal duty of child support. One parent, in her own right and merely because she is a parent, has no standing to collect support money due sua juris children from the other parent. In this case neither the mother, nor HRS on her behalf, has alleged a cause of action based on the theory of seeking from the father a contribution for support provided by the mother to a dependent minor child out of necessity and beyond the mother's own legal duty; nor is a cause of action pleaded for reimbursement for a non-obligated non-volunteer third party (such as HRS) for discharging a parent's legal obligation for support. The mother in this case, through HRS, is merely attempting to collect delinquent child support due a sua juris child from its father.

Appellee father's motion for attorney's fees on appeal under section 61.16, Florida Statutes, is granted. If the mother had brought this action and prevailed, she could have received attorney's fees under this statute, and conversely in the same setting, if the father prevailed, he would be entitled to attorney's fees. When HRS under statutory authority steps into the mother's shoes in the place and stead of, and as the surrogate and advocate of, the mother, institutes an action against a father, in fairness to the father, when the father prevails, the result should be the same. As statutory assignee-subrogee of the mother,

HRS should assume the responsibilities that go with an assertion of the rights and remedies. See Judge Farmer's explanation in H.R.S. v. Crossdale, 585 So.2d 481, 482-83 (Fla. 4th DCA 1991). The attorney's fees aspect of this cause alone is remanded for the trial court to consider the evidence adduced by the parties as to financial resources of both parties and the reasonable value of the legal services performed by the attorney for the father in defending this action, and to order payment of a reasonable amount of attorney's fees, suit money and the cost to the father of defending this action and appeal. Rogers v. Cooper, 575 So.2d 266 (Fla. 1st DCA 1991); H.R.S. v. Crossdale, 585 So.2d 481 (Fla. 4th DCA 1991). But see, H.R.S. v. Harvey, 593 So.2d 611 (Fla. 2d DCA 1992).

AFFIRMED.

GOSHORN, C.J., concurs.

W. SHARP, J., dissents with opinion.

W. SHARP, J., dissenting.

I respectfully dissent from the majority opinion's continued adherence to Cronebaugh v. VanDyke, 415 So.2d 738 (Fla. 5th DCA 1982), rev. denied, 426 So.2d 25 (Fla.1983), and its award of attorney's fees pursuant to section 61.16 to Holland, the appellee, against the Florida Department of Health and Rehabilitative Services.

In this case, HRS, acting pursuant to ...