Nicolay v. Nicolay, 79-656

• Decision Date: 27 August 1980
• Docket Number: No. 79-656,79-656
• Parties: William R. NICOLAY, Appellant, v. Jacquelyn Ann NICOLAY, Appellee.
• Court: Florida District Court of Appeals

Page 500

387 So.2d 500

William R. NICOLAY, Appellant, v. Jacquelyn Ann NICOLAY, Appellee.

No. 79-656.

District Court of Appeal of Florida, Second District.

Aug. 27, 1980.

Douglas H. Smith, Lake Alfred, for appellant.

Robin Gibson, of Gibson & Connor, Lake Wales, for appellee.

GRIMES, Judge.

This is an appeal from an order which modified alimony award so as to provide Mrs. Nicolay with funds to send her children to college.

In November, 1973, Dr. Nicolay filed a petition for dissolution of marriage. The following April, the court entered a final judgment of dissolution in which it awarded custody of the parties' two minor daughters to Mrs. Nicolay. The judgment provided $500 a month support for the children until the youngest reached age eighteen and awarded Mrs. Nicolay $500 a month permanent alimony. The court noted that the alimony would be subject to modification, and it reserved jurisdiction to modify child support, particularly with reference to the children's needs for higher education.

Following the dissolution proceedings, Dr. Nicolay remarried and moved to Missouri. He later moved to North Carolina to become chief of nuclear medicine at a Veteran's Administration hospital. Mrs. Nicolay has not remarried and is presently working as a nurse in Winter Haven. In the spring of 1977, the oldest child graduated from high school with an excellent scholastic record and prepared to enter college. Mrs. Nicolay requested assistance with college expenses from Dr. Nicolay, but he refused. She then filed a petition for modification of child support seeking help with those expenses, in which she alleged that all applications for grants and scholarships had been denied because of Dr. Nicolay's income. Dr. Nicolay thereafter agreed to pay $3,500 toward the girl's college education for the 1977-1978 school year, and Mrs. Nicolay voluntarily dismissed the modification petition.

In February, 1978, Dr. Nicolay filed a petition for modification of child support and alimony, alleging that his income had fallen since the entry of the final judgment. Mrs. Nicolay answered and counterpetitioned for modification of support, seeking assistance to meet college expenses for both girls since the younger one, like her sister, had now completed high school with an excellent record and wished to further pursue her education. After a hearing, the court entered an order in which it terminated child support because both daughters had reached age eighteen, denied Dr. Nicolay's petition for modification of alimony, and denied Mrs. Nicolay's counterpetition without prejudice for her petition for increase in alimony. In so doing, the court stated that it felt Dr. Nicolay should assist his daughters with their college expenses but that it doubted its power to force him to do so through the medium of child support because the girls were no longer minors.

In response to the court's invitation, Mrs. Nicolay filed a petition for modification of alimony, alleging a change in circumstances owing to her need to fund her daughters' college education. After a hearing, the court entered an order on March 16, 1979, in which it increased the periodic alimony by $585 a month retroactive to September 1, 1978, for two years from that date or until further order of the court. ¹ It is from that order that Dr. Nicolay now appeals.

Dr. Nicolay does not challenge the court's finding that he has the ability to pay the increased alimony award. Therefore, we have before us only the question of whether the court had the power to order an increase in Mrs. Nicolay's alimony award solely for the purpose of allowing her to furnish her daughters who had turned eighteen and thus were no longer minors with a college education.

Dr. Nicolay argues that the court did indirectly what it could not do directly, namely force a divorced parent to provide a college education to a child who has reached the age of eighteen. There are cases, including some from our court, which have laid down such a rule. E.g., Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975). Yet this rule has not been universally accepted and, in fact, appears to rest on a tenuous foundation.

Prior to July 1, 1973, the question of whether a court could order a parent who had the ability to do so to provide his child with a college education was seldom if ever raised. Section 61.13, Florida Statutes (1979), then provided, as it does now, that in a dissolution proceeding a court could require a parent who owed a duty of support to a child to pay such support as was necessary and equitable. Parents owed a duty of support to their minor children, and children did not reach their majority until age twenty-one. Heckes v. Heckes, 129 Fla. 653, 176 So. 541 (1937); Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907). Thus, since a child following a normal educational pattern would usually have almost finished the requirements for a college degree by the time he reached age twenty-one, the courts could clearly order his parents to support him through college. Of course, today a parent's duty of support to the minor child remains unchanged. However, the age of majority has changed. On July 1, 1973, Chapter 73-21, Laws of Florida, went into effect. It lowered the age of majority from twenty-one to eighteen. § 1.01(14), Fla.Stat. (1979). It also created Section 743.07, Florida Statutes (1979), which reads as follows:

(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the state constitution immediately preceding the effective date of this section.

(2) This act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.

(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

What Chapter 73-21 has done to a divorce court's power to order support for a child between the ages of eighteen and twenty-one in order to allow him to go to college has been the subject of much discussion in the appellate courts of this state. One of the first cases to deal with the issue after the lowering of the age of majority was White v. White, 296 So.2d 619 (Fla. 1st DCA 1974). In that case, the trial court entered a final judgment of divorce on April 28, 1969, which required payment of child support to the wife but contained no provision for termination of that support. On January 5, 1970, the court entered an order reducing child support payments to $100 a month which provided for the payments to continue until further order of the court. On August 31, 1971, the court entered another order raising the support to $115 a month. That order was silent as to a termination date. Following the effective date of Chapter 73-21, the father discontinued making payments for the support of the son who by that time had become eighteen years old and was a sophomore attending Florida Junior College. The mother thereafter asked the court to require the father to continue making payments and the trial judge entered an order finding that since the son was attending junior college and was not employed he was entitled to the support of $115 per month from his father. The judge observed that he believed the boy to be entitled to a college education at the expense of his parents.

On these facts, the appellate court reversed and held that the provisions of Section 743.07(1) which emancipated eighteen years old prevented a court from ordering a parent to provide support for the college education of his eighteen year old children. The court also ruled that Section 743.07(2) which allowed a court to order support for dependent adult children referred only to adult children who were mentally or physically handicapped and not to those who simply were without independent means of support. Finally, the court held that Section 743.07(3) which provided that the other provisions of Section 743.07 would not affect rights and obligations existing prior to July 1, 1973, was not applicable because the orders of the trial court had set no termination date and thus had not obligated the father to pay support until age twenty-one.

Judge McCord dissented from the majority opinion in White. He expressed the view that Section 743.07(3) was applicable to the case and that in any event, Section 743.07 did not automatically cut off the responsibility of a parent to provide a college education for a child eighteen years of age. He said:

It is my view that since the operation of the new statute is prospective rather than retroactive, and under the previous order at the time it was entered the father was obligated to make support payments until his son reached age 21, and since the new statute further authorizes the court to require support for a dependent person beyond the age of 18 years, the statute did not nullify the court's previous support order upon the son reaching age 18. If appellant desired at that time to have the support modified or terminated on the ground that the former minor was self-supporting, he should have filed a petition seeking such relief. Upon the filing of such petition, it then would become the duty of the trial judge under the evidence presented at a hearing thereon to determine the question of dependency in the exercise of his sound discretion considering the circumstances of the parents and the needs of their offspring. The question of whether or not the offspring is satisfactorily pursuing an education to become better equipped for life and the reasonableness of such pursuit would be relevant...