Trager v. Trager

• Decision Date: 05 April 1989
• Docket Number: No. 87-2722,87-2722
• Citation: Trager v. Trager, 541 So.2d 148, 14 Fla. L. Weekly 830 (Fla. App. 1989)
• Parties: 14 Fla. L. Weekly 830 Arthur TRAGER, Appellant/Cross Appellee, v. Barbara Joy TRAGER, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 148

541 So.2d 148

14 Fla. L. Weekly 830

Arthur TRAGER, Appellant/Cross Appellee, v. Barbara Joy TRAGER, Appellee/Cross Appellant.

No. 87-2722.

District Court of Appeal of Florida Fourth District.

April 5, 1989.

William I. Zimmerman of William I. Zimmerman, P.A., Pompano Beach, for appellant/cross appellee.

Andrew M. Chansen, Boca Raton, for appellee/cross appellant.

PER CURIAM.

We affirm both the main appeal and the cross appeal except for that issue of the main appeal dealing with the provision in the final judgment which reads:

7. The Husband shall maintain a term life insurance policy on his life in the sum of $50,000.00 with HOLLY JOY TRAGER as the beneficiary of said life insurance policy.

Section 61.13(1)(d), Florida Statutes (1987), provides that:

To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.

In Bosem v. Bosem, 279 So.2d 863 (Fla.1973), the Florida Supreme Court held that a trial judge has the power, pursuant to section 61.13, Florida Statutes, to require the maintenance of a life insurance policy insuring the life of the payor of child support payable to the minor children until the children reach majority or are emancipated. This court, in Eberly v. Eberly, 344 So.2d 886, 888 (Fla. 4th DCA 1977), stated:

We hold that the chancellor in a dissolution proceeding may not, absent the father's agreement, order him to maintain life insurance for the absolute benefit of his minor children. Insurance protection may be so required only for the benefit of children for whom money support is otherwise lawfully ordered, and only as security for the payment of that support during minority.

(Emphasis added).

In the instant case, the provision requiring the husband to maintain a life insurance policy for the benefit of the minor child fails to state that the insurance is to serve as security only to the extent of prospective child support in the event of the father's death. The subject provision requires clarification in this regard. Accordingly, we remand with direction to the trial court for clarification that the life insurance is to be maintained as security for the support of the minor child in the event of the husband's death.

With respect to the issue of the amount of child support ordered to be paid by the husband, we find no error. Section 61.30, Florida Statutes (1987), became effective after the date this case was filed and is not applicable to it.

For the information of the bench and bar, mention is made that section 467(b) of the Social Security Act, 42 U.S.C.A. § 667(b), read as follows in 1987:

§ 667. State guidelines for child support awards

(a) Establishment of guidelines; method.

Each State, as a condition for having its State plan approved under this part, must establish guidelines for child support award amounts within the State. The guidelines may be established by law or by judicial or administrative action.

(b) Availability of guidelines; binding nature

The guidelines established pursuant to subsection (a) of this section shall be made available to all judges and other officials who have the power to determine child support awards within such State, but need not be binding upon such judges or other officials.

(c) Technical assistance to States; State to furnish Secretary with copies.

The Secretary shall furnish technical assistance to the States for establishing the guidelines, and each State shall furnish the Secretary with copies of its guidelines.

However, Title 1 of the Family Support Act of 1988 made the following amendments:

Sec. 103. State Guidelines for Child Support Award Amounts.

(a) GUIDELINES TO CREATE REBUTTABLE PRESUMPTION.--Section 467(b) [42 U.S.C.A § 667(b) ] of the Social Security Act is amended--

(1) by inserting "(1)" after "(b)";

(2) by striking ", but need not be binding upon such judges or other officials"; and

(3) by adding at the end the following new paragraph:

"(2) There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case."

We further call to the attention of the bench and bar the article on this subject entitled Supporting Children After Divorce: The Influence of Custody on Support Levels and Payments, by Doctors Jessica Pearson and Nancy Thoennes of the Center for Policy Research in Denver, Colorado, which article appears in Family Law Quarterly, Fall 1988. The authors state:

It has been widely documented that many divorced fathers fail to comply with court-mandated child support and that the lack of child support payments from the noncustodial parent is a major cause of welfare dependency in female-headed households and the impoverishment of a growing number of children. For example, an analysis of women surveyed in the 1975 Survey of Income and Education and the 1979 Supplement to the Current Population Survey revealed that only 25 percent and 35 percent, respectively, of demographically eligible women received some child support payments; in cases where child support was ordered, the average order amounted to only about 70 percent of the poverty standard and only about one-fourth of the estimated normal level of expenditures on children within intact families.

What is less well understood are the causes of nonpayment and the impact of psychological and emotional factors on the payment of support following divorce. Although the evidence is sparse, the data suggest that the parent-child and spousal relationship factors are relevant. For example, in one of his Michigan county samples, Chambers found that fathers who had little or no contact with their children after the divorce paid only about 34 percent of their child support, while fathers in regular contact paid 85 percent. Based upon an assessment of sixty families, Wallerstein and Huntington concluded that there was a relationship between the frequency, regularity and flexibility of visitation and the payment of child support which emerged at eighteen months following separation and held over the five-year period of their study. In a national survey, Furstenberg and Zill found a positive relationship between the provision of child support and the frequency of contact with the child. And preliminary interviews with thirty-four noncustodial parents and one hundred twenty-five custodial parents led Braver to conclude that conflict between the parents was the best predictor of both child support payment performance and visitation behaviors.

Id. at 319-20 (footnotes omitted). The authors concluded:

Although our data do not support more aggressive joint custody policies, they do support policies calling for the provision of more widespread and effective information about the joint custody option to divorcing couples. We found that mothers with joint residential custody were generally satisfied with both the custody arrangement and the accompanying financial agreement. Child support payment among this population was significantly more regular and complete.

Id. at 336. They also said:

Moving beyond the issue of...