McClish v. Lee, 93-243
| Decision Date | 11 February 1994 |
| Docket Number | No. 93-243,93-243 |
| Citation | 633 So.2d 56 |
| Parties | 19 Fla. L. Weekly D291 Brenda K. McCLISH, etc., Appellant, v. Mark E. LEE, etc., Appellee. |
| Court | Florida District Court of Appeals |
After a short marriage and two children, Mark and Brenda Lee (now Brenda McClish) divorced in 1974. Pursuant to a property settlement agreement incorporated in the Final Judgment, Mark was required to pay Brenda twenty-five dollars per week as a contribution toward the child support for the children whose custody was awarded to her.
Mark has paid no support under the Final Judgment. However, in 1975, the parties entered into a new agreement under which Mark agreed to give up his visitation rights and, in consideration therefor, Brenda released Mark from any obligation to pay support in the future. This agreement was filed with the court on February 18, 1976. Neither party, at that time, petitioned the court to approve the agreement.
Brenda honored the agreement throughout the minority of the children. Both children were emancipated by July, 1991. One child is now deceased; the other has disclaimed any interest in delinquent child support payments.
In 1991, Mark inherited some money from his father. Soon thereafter Brenda, for the first time, filed a contempt action to collect $36,125.43 in child support arrearages accruing during the sixteen years she had remained silent. The trial court, instead of awarding the entire arrearage, awarded her only that portion of the court-ordered support that accrued from the date of the Final Judgment until the date of her agreement waiving any further support. She appeals; we affirm.
Brenda was not seeking the arrearages on behalf of the children, but rather for reimbursement to her to compensate her for moneys she may have expended in raising the children. In other words, she was seeking money owed to her. 1
Clearly, parties to a marriage cannot, as a matter of law and public policy, contract away the child's right to support. This principle is so well established that it needs no citation of authority. Just as clearly however, parties do have the right to contract as between themselves as to whom will assume particular obligations. For example, a mother who earns a high income and is well able to provide all necessary child support should be permitted, as between herself and her husband, to agree to provide the child support in exchange for the husband's interest in the marital home. Such an agreement cannot be interpreted as "contracting away the child's right of support." If the mother thereafter becomes unable or unwilling to provide the child support, as between the child and the father, the father would have an absolute obligation to provide the support. But if he does, he should have an action over against the wife, in contract, for a return of his interest in the home. 2
In our case, the wife is seeking money due her which she contracted away. The issue, therefore, is whether the contract is a valid basis for denying the mother's claim. The mother contends that there was a failure of consideration because, even though the father contractually gave up his right to visitation, he continued, with her consent, 3 to exercise some visitation. We see a distinction, however, between visitation as a matter of enforceable right and visitation based on the goodwill of the former wife. Mark clearly gave up something in exchange for the agreement. The question, then, is whether the mother who received the benefit of her bargain, can repudiate the agreement after the children reach majority.
Although we are concerned with the public policy implications of permitting a father to contract away his visitation rights (which quite obviously will also affect the child's right to the companionship of his father) and might hold such agreement invalid in a suit brought on the child's behalf to set it aside, we recognize, as did this court in Robinson v. State Dept. of Health & Rehab., 473 So.2d 228 (Fla. 5th DCA 1985), that under certain circumstances the absence of a parent's visitation may be beneficial to the family unit. For that reason we hold that such an agreement is, at most, voidable and not void.
Consistent with Robinson, we agree with the trial court's implicit finding that the mother's delay until the visitation issue is no longer relevant, constitutes laches which bars her now from challenging the agreement. 4
The final issue concerns the determination of attorney's fees. The trial judge indicated that he would bifurcate the proceedings and conduct a separate hearing on the issue of attorney's fees. As a result of his statement, neither McClish nor Lee placed evidence in the record as to Lee's ability to pay attorney's fees. Although it is within a trial court's discretion to grant or deny attorney's fees, Lester v. Lester, 547 So.2d 1241, 1243 (Fla. 4th DCA 1989), there has to be an evidentiary basis for the determination. See Sec. 61.16, Fla.Stat. (1991). The court did hear testimony that McClish could not afford an attorney unless she entered into a contingency fee arrangement with her trial counsel. The court also heard that Lee was able to pay her attorney's fees and child support arrearage based upon an admission he filed. The trial judge's order is not consistent with the testimony presented. We remand the issue to the trial court so evidence can be presented for a factual determination of this issue. Jones v. Jones, 606 So.2d 748, 749 (Fla. 5th DCA 1992), quashed on other grounds by 624 So.2d 263 (Fla.1993). Parenthetically, the trial judge raised the question of whether the Florida Rules of Professional Conduct, Rule 4-1.5(f), allows an attorney to take this case on a contingency arrangement. This issue should be fully argued by both counsel.
AFFIRMED in part, REVERSED in part, and REMANDED for determination of attorney's fees.
This court adopts the principle that parents can contract "as between themselves as to whom will assume particular obligations." Although this principle sounds benign, it is very malignant if one of the obligations being negotiated is child support compelled by a court order. If we accept this principle as valid, then court orders that compel child support can be revised or rewritten, not by judges or by courts of competent jurisdiction, but by the parties themselves. This principle is not the law nor should it be. Child support is a right belonging to the children, not to the custodial parent. Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979). It is a right the custodial parent cannot waive or contract away. Robinson v. State Department of Health and Rehabilitative Services, 473 So.2d 228, 229 (Fla. 5th DCA), appeal dismissed, 478 So.2d 53 (Fla.1985). Regardless of the income of the parents, once child support is court ordered, any modifications to reduce that level of support must be with court approval or the nonpaying parent can be sanctioned by the court. Public policy requires that parents obey court orders when it comes to the issue of support for their children. They have no choice. If they have the ability, they must pay court ordered child support. If they do not have the ability to pay, they must seek relief from the court. Self help is neither contemplated nor condoned.
In this case, the agreement was filed with the clerk of the court in the court file, but the agreement was never incorporated by order into an amended final judgment of dissolution. Therefore, the court order that compelled child support was valid up to and including the emancipation of the youngest child. See Smithwick v. Smithwick, 343 So.2d 945, 947 (Fla. 3d DCA 1977) (). If a court cannot modify court ordered child support, how can parents? I take the unusual position, it appears from this court's opinion, that lawfully entered court orders mean what they say and must be followed. Since the parents cannot contract away the children's right to child support, the agreement is not only voidable, but void ab initio.
Assuming arguendo that the agreement was binding, the parties agreed that each would forfeit a right as consideration for signing the agreement: McLish would give up the right to court ordered child support and Lee would give up the right to court ordered visitation. Lee never did give up visitation. He visited with the children as often as he wished and with no restrictions or interference from McLish. Not only did he visit with the children, they lived with him. The two boys, Mark...
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...(Fla. 2d DCA 1959). The lack of any express understanding or agreement between Pyne and Black distinguishes this case from McClish v. Lee, 633 So.2d 56 (Fla. 5th DCA), rev. denied, 640 So.2d 1107 (Fla.1994); Brock; Robinson v. Department of Health and Rehabilitative Services, 473 So.2d 228 ......
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...must be based on the need of the party seeking the fees and the ability of the other party to pay these fees. McClish v. Lee, 633 So.2d 56, 58 (Fla. 5th DCA 1994) (en banc). Statutory fees awarded pursuant to section 61.16 are not based upon a prevailing-party standard. Thornton v. Thornton......
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