Fowhand v. Piper, 92-1740

• Decision Date: 31 December 1992
• Docket Number: No. 92-1740,92-1740
• Citation: 611 So.2d 1308
• Parties: 18 Fla. L. Week. D243 Clark FOWHAND, II, Appellant, v. Susan PIPER, Appellee.
• Court: Florida District Court of Appeals

Page 1308

611 So.2d 1308

18 Fla. L. Week. D243

Clark FOWHAND, II, Appellant, v. Susan PIPER, Appellee.

No. 92-1740.

District Court of Appeal of Florida First District.

Dec. 31, 1992.

Richard Smoak, Panama City, for appellant.

Robert B. Staats of Staats, White & Clarke, Panama City, for appellee.

KAHN, Judge.

Clark Fowhand, II appeals from a final judgment of paternity. At issue is whether the trial court erred in awarding retroactive child support from the date of birth. Fowhand contends that the award (1) was barred by laches; (2) should be limited by the statute of limitation found in section 95.11(3)(k); and (3) should not have been awarded since actual support was provided by third persons and there is no evidence of the amount of support provided by the mother or evidence of the past needs of the child. We find that the award of retroactive child support was proper and affirm the final judgment of paternity.

Clark Fowhand and Susan Piper dated from September 1981 to December 1981, engaging in a physical relationship during that time. In the spring of 1982, Ms. Piper, then nineteen years old, discovered that she was pregnant. Ms. Piper spoke with Mr. Fowhand, then twenty three years old, after she became pregnant and informed him of her pregnancy and later contacted him wanting to know if he would expect to see the child if he provided support. Mr. Fowhand replied in the affirmative, and Ms. Piper "decided that she probably didn't need him around." The child, C.S.P., was born on July 21, 1982. Ms. Piper retained counsel to contact Mr. Fowhand after the child was born, requesting Fowhand to acknowledge paternity, pay the birth expenses, provide health insurance, pay child support of $65.00 per week, and pay Ms. Piper's attorney's fees. Fowhand's lawyer responded by denying paternity.

On May 10, 1991, almost nine years after the child's birth, Ms. Piper filed a complaint against Mr. Fowhand to determine the paternity of her daughter. Mr. Fowhand's answer denied that he was the father of the child and raised three affirmative defenses to the claim for past child support: statute of limitation, laches and estoppel. Mr. Fowhand continued to deny paternity until the date of the final hearing. At the outset of the hearing, appellant acknowledged paternity, ¹ and announced he would allow the court to hear evidence on support, custody and visitation. In the final judgment, the trial court determined that Mr. Fowhand is the natural father of the child, ordered Mr. Fowhand to pay monthly child support computed under the child support guidelines, section 61.30, Florida Statutes, to Ms. Piper, assessed $200.00 a month since C.S.P.'s birth, a total of $22,600.00, for retroactive child support, and ordered Fowhand to pay Ms. Piper's court costs and attorney's fees.

Mr. Fowhand first argues that the defense of laches bars the claim for retroactive child support. Laches may be raised in the face of a claim for past child support, in some circumstances. The trial court determines the merit of a laches defense by considering whether the evidence brought forward by the proponent of laches shows:

1) conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which the complaint is made; 2) the plaintiff, having had knowledge of the defendant's conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit; 3) lack of knowledge on the defendant's part that the plaintiff will assert the right on which he bases his suit; and 4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff or the suit is held not to be barred.

Wing v. Wing, 464 So.2d 1342, 1344 (Fla. 1st DCA 1985) (citation omitted). "In all events the welfare of the child is paramount and in the absence of extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages." Armour v. Allen, 377 So.2d 798, 800 (Fla. 1st DCA 1979). We adopt the foregoing statement made by this court in Armour, finding that it applies equally to a paternity action as to a post-dissolution action to recover child support.

The element of injury or prejudice to the defendant is not present in this case. Mr. Fowhand claims that he reasonably believed that Ms. Piper abandoned her claim that he was the father of the child and therefore incurred obligations to other people in his life. This does not constitute strongly compelling circumstances in light of the facts that Mr. Fowhand had knowledge that Ms. Piper asserted Fowhand's paternity (such assertion being reasonably based upon matters well known to Fowhand), there was a distinct probability that the child was in fact his, and he failed to take any action to support his unfounded denial of paternity.

Engaging in conduct resulting in the birth of a baby places a burden on both partners. Mr. Fowhand's response to that burden was to deny responsibility and get on with his life. Ms. Piper found herself a teenage mother, dependent upon her parents. At the time of the hearing she worked as a waitress in Panama City. Mr. Fowhand is a manager and part owner of his family's furniture business. We find no abuse of discretion in the trial court's rejection of the laches defense.

Mr. Fowhand next argues that, irrespective of the application of the doctrine of laches, section 95.11(3)(k), Florida Statutes (1991), bars a claim which accrued more than four years prior to the institution of this action for child support. This statute requires the institution within four years of "a legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts." In arguing a limitations bar, appellant relies upon Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955), in which the supreme court referred to a child support obligation as quasi-contractual in nature. In Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979), the supreme court held unconstitutional section 95.11(3)(b), Florida Statutes (1975), which acted to bar claims of all support, past and prospective, unless the paternity action was filed within four years of birth. In dicta the court indicated that a statute of limitations might be applied to "child support claims ... that have accrued in the past but which are not adjudicated." 378 So.2d at 1228.

We decline to hold that the four year statute of limitations provided by section 95.11(3)(k), specifically addressing an action for the sale and delivery of goods, wares and merchandise, applies to limit the claim of a minor child for support from her unwed father. We note the following language from a recent decision:

Florida courts take the position that enforcement of periodic alimony and child support orders are equitable proceedings in nature and such obligations are not barred by the running of the statute of limitations. See Bloom v. Bloom, 414 So.2d 1153 (Fla. 3d DCA 1982); Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980), rev. denied, 399 So.2d 1144 (Fla.1981); Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979).

Popper v. Popper, 595 So.2d 100, 103-104 (Fla. 5th DCA 1992). In the present case the trial court properly refused to bar a portion of the child support under a...