Martinez v. Agostini, 90-1239

• Decision Date: 07 May 1991
• Docket Number: No. 90-1239,90-1239
• Citation: 16 Fla. L. Weekly 1241,579 So.2d 280
• Court: Florida District Court of Appeals
• Parties: Felix MARTINEZ, Appellant, v. Aida AGOSTINI and Department of Health & Rehabilitative Services, Appellees. 579 So.2d 280, 16 Fla. L. Week. 1241

Page 280

579 So.2d 280

Felix MARTINEZ, Appellant, v. Aida AGOSTINI and Department of Health & Rehabilitative

Services, Appellees.

No. 90-1239.

579 So.2d 280, 16 Fla. L. Week. 1241

District Court of Appeal of Florida,

Third District.

May 7, 1991.

Michael Lechtman, North Miami Beach, for appellant.

Melvin A. Rubin, Miami, for appellees.

Before HUBBART, NESBITT and JORGENSON, JJ.

PER CURIAM.

This case involves the issues of paternity and a father's obligation to pay support for his child born out-of-wedlock. The child's mother died of cancer after final judgment was entered. While we find no error in the trial court's finding of paternity, we reverse the child support award and remand for further proceedings based on the following analysis.

First, it was error for the trial judge to rely exclusively on the statutorily set child support guidelines, Sec. 61.30, Fla.Stat. (1989), in determining the amount of the support award because the guidelines were not yet in effect when the complaint was filed. See Trager v. Trager, 541 So.2d 148 (Fla. 4th DCA 1989); Reed v. Reed, 541 So.2d 755 (Fla. 1st DCA 1989). ¹ Upon remand the trial judge should utilize those standards applicable prior to the statutory change. As part of his reconsideration of how much the appellant father is obligated to pay in child support, the trial judge should consider the income of the appellant's wife (who is not the mother of the child) inasmuch as it impacts on the appellant's obligation to support the three children born to him and his wife. However, the court should recognize that the appellant's wife has assumed no obligation to support the out-of-wedlock child.

Second, we note that the child support awarded upon remand will go partly to the deceased mother's estate ² and partly to HRS due to the fact that the mother received state economic assistance to care for the child. See 409.2561(3), Fla.Stat. (1989). At oral argument, HRS clarified that support payments are sought from the date of the complaint's filing and not from the date of the child's birth, some seven months earlier. Consequently, based on the facts of this case, we need not address Valdes v. Lambert, 568 So.2d 117 (Fla. 5th DCA 1990), which held that child support can be awarded only from the date a paternity action is filed.

Finally, we affirm the trial court's order that the appellant secure health insurance for the child. We do not read section 742.031, Florida Statutes (1989), as prohibiting a trial judge from awarding any natural...