White v. Means, R--405
| Decision Date | 07 June 1973 |
| Docket Number | No. R--405,R--405 |
| Citation | 280 So.2d 20 |
| Parties | Mamie Farmer WHITE, Appellant, v. Timothy J. MEANS, Appellee. |
| Court | Florida District Court of Appeals |
Wayne E. Ripley, Jacksonville, for appellant.
Harry B. Mahon, Mahon & Mahon, Jacksonville, for appellee.
The plaintiff in a paternity action has appealed from an order entered by the Circuit Court for Duval County, denying her motion for attorney's fees and costs.
The sole question presented for our determination in this appeal is whether that court erred in denying her motion for an attorney's fee and costs 'in conformity with the provisions' of Section 742.031, Florida Statutes, F.S.A.
With reference to the attorney's fee, the ultimate question is whether the word 'shall' in the said statute should be construed as mandatory or as permissive only.
The mentioned statutory provision reads in pertinent part, that in a paternity action:
'The court shall determine the issues of paternity of the child, . . . and if the court shall find the defendant to be the father of the child He shall so order and shall further order the defendant to pay the complainant, . . ., such sum or sums as shall be sufficient To pay reasonable attorney's fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child.' (Emphasis supplied.)
Despite this provision the trial court entered the order appealed from, holding the following:
The plaintiff alleged in her complaint, and the jury found in its verdict, that the defendant was the father of twins born to the plaintiff, then an unmarried widow. In a separate order the court ordered the defendant to pay $50 a month for the support of each of the twins.
Focusing on the exact language used in the said statutory provision, we find that it provides that 'if the court shall find the defendant to be the father of the child,' the court 'shall further order the defendant to pay the complainant . . . such sum or sums as shall be sufficient to pay reasonable attorney's fee, hospital or medical expenses, cost of confinement and any other expenses incidental to the birth of the child.'
The pivotal question, then, is whether the word 'shall' in the just-quoted clause should be interpreted as mandatory or as permissive or discretionary only.
Decisions can be cited in support of either position as to the meaning of 'shall' in a statute, but the conflict is more apparent than real, for the interpretation of the word 'shall' depends upon the context in which it is found and upon the intention of the legislature as expressed in the statute.
Examining the word 'shall' in the above-quoted provision the light of the context in which it is placed and in the light of the legislature's intention as expressed in the statute, we hold that the word 'shall' should be given a mandatory meaning, so that, when the court held that the defendant was the father of the plaintiff's twins, it was incumbent upon the court to order the defendant to pay the plaintiff a sum sufficient to pay a reasonable attorney's fee.
Our holding is consistent with that of the Third District Court of Appeal in Smith v. Wise, 234 So.2d 145 (Fla.App.1970), in which our sister court said:
The normal meaning of the word 'shall' is mandatory by nature, as pointed out by the Supreme Court of Florida in Neal v. Bryant, 149 So.2d 529 (F...
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Kelly v. State
...depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973). S.R., 346 So.2d at 1019. Therefore, the word "shall" means the designation must be declared if the criteria are met and that th......
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Tascano v. State, KK-22
...State, 355 So.2d 857 (Fla. 3d D.C.A. 1978); In the Interest of J.W.H. v. State, 345 So.2d 871 (Fla. 1st D.C.A. 1977); White v. Means, 280 So.2d 20 (Fla. 1st D.C.A. 1973); Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla. 4th D.C.A. 1970); United Bonding Insurance Company v. Tuggle, 2......
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Montano v. Williams, 1970
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Allied Fidelity Ins. Co. v. State, s. 81-2052 and 81-2127
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