Owens v. Owens, 81-940

• Decision Date: 23 June 1982
• Docket Number: No. 81-940,81-940
• Citation: 415 So.2d 855
• Parties: John Everett OWENS, Sr., Appellant, v. Jewell D. OWENS, Appellee.
• Court: Florida District Court of Appeals

Page 855

415 So.2d 855

John Everett OWENS, Sr., Appellant, v. Jewell D. OWENS, Appellee.

No. 81-940.

District Court of Appeal of Florida,

Fifth District.

June 23, 1982.

John W. Rodgers of Rodgers, Wagner & Satava, Orlando, for appellant.

James N. Powers, P. A., Orlando, for appellee.

DAUKSCH, Chief Judge.

This is an appeal from an order in a marriage dissolution case which modified a final judgment and increased the father's contribution toward the support of his children. We find no error in any respect and affirm the order but we deem it necessary to establish a point of law which has not been decided by this court and is of some confusion in the state. Because the point of law is not well settled and we deem it to be of great public importance we certify the following question:

UNDER WHAT CIRCUMSTANCES, IF ANY, DOES A COURT HAVE JURISDICTION AND AUTHORITY TO ORDER A PARENT OF A PERSON OVER THE AGE OF EIGHTEEN TO PAY CHILD SUPPORT PAYMENTS?

The father in this case was ordered to contribute Thirty Dollars a week toward the support of his eighteen year old son until the son's graduation from high school in June, 1982. The evidence shows the son had to repeat his third grade of elementary school and thus was one year behind in finishing high school. Evidently he is healthy, intelligent, employed part-time and dependent upon his parents for support during this final year of high school. There is ample evidence the father is financially capable, although unwilling, to provide the needed financial assistance for this son and his other children.

Before the change in the law regarding the age of majority of a person in Florida this problem would hardly have arisen because it is rare that a healthy, intelligent not otherwise dependent child would not complete his high school education by age 21. The pertinent statute is section 743.07, Florida Statutes (1981):

Rights, privileges, and obligations of persons 18 years of age or older.

(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 and except as otherwise provided in the Beverage Law.

(2) This section 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.

This statute is applicable to this case in two ways. First, it says the court can require support for a dependent child over eighteen. Second, it says it does not affect rights and obligations existing before July 1, 1973. For at least one statutory definition of "dependent child" see section 409.2554(2), Florida Statutes (1982), which says:

(2) "Dependent child" means any person under the age of 18, or under the age of 21 and still in school, who has been deprived of parental support or care by reason of death, continued absence from the home, or physical or mental incapacity of a parent.

(Emphasis supplied).

As to the first point, we have determined the child in this case to be dependent and entitled to support because he cannot fully support himself and properly attend to his high school studies at the same time and because we deem it essential that a person who is able to do so, complete his high school education. We quite agree with the dicta in Finn v. Finn, 312 So.2d 726 (Fla.1975), where our Supreme Court, speaking through Circuit Judge Ben Willis, said In this age of sophisticated technology and economic complexity with the necessity of development of special skills to qualify for pursuit of a trade, profession or to obtain employment, a person over 18 and less than 21 may indeed be dependent on the help of others to obtain what education and training is needed to be competitive in the economic system in which he must make his way. He and society have a right to expect his parents to meet that need to the reasonable extent of their ability to do so, and nothing in Chapter 73-21 says otherwise.

As to the second point, the final judgment of dissolution, which was modified by the order appealed here, was rendered in 1972. Thus the rights and obligations concerning support first came into an adjudicated existence before July 1, 1973. In that final judgment it was held that the support would continue until each child reaches eighteen, marries, dies, becomes self-supporting or enters the armed forces, whichever first occurs. It also held, somewhat ambiguously, that the support would continue "during the minority of the children or until they are emancipated or self-supporting." We say ambiguously because the judgment on the one hand terminates the support at age eighteen and on the other hand orders its continuance until emancipation, which at that time was twenty-one. Parenthetically, it could be argued that since the child became eighteen when the age of emancipation is eighteen that there is no longer any ambiguity. Be that as it may, we agree with the dicta in Finn and the dicta in Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980), both of which say dependency can be established by proof that a child is necessarily and diligently pursuing his education and thus unable to support himself completely. We recognize this decision is in...