White v. White

• Decision Date: 20 June 1974
• Docket Number: No. U--273,U--273
• Citation: 296 So.2d 619
• Parties: Houston R. WHITE, Appellant, v. Mary S. WHITE, Appellee.
• Court: Florida District Court of Appeals

Page 619

296 So.2d 619

Houston R. WHITE, Appellant, v. Mary S. WHITE, Appellee.

No. U--273.

District Court of Appeal of Florida, First District.

June 20, 1974.

Carlton L. Welch, Jacksonville, for appellant.

William T. Kaler and Ralph Sistrunk, of Sistrunk & Kaler, Jacksonville, for appellee.

BOYER, Judge.

We are called upon to review an order of the trial court requiring a father to pay to the mother of a 'child' over 18 years of age support for that 'child.' Dates are important. On April 28, 1969 a final judgment of divorce was entered in a proceeding in which the appellant here was plaintiff and the appellee defendant. The final judgment awarded to the defendant mother custody of the party's son, then 15 years of age. The final judgment was unusual in that although it required the payment of child support in a specified sum there was no provision for termination upon attaining age 18, age 21, upon becoming sua juris, self-supporting or otherwise. On January 5, 1970 an order was entered modifying the final judgment by reducing 'child support' payments to $100 per month, which order provided that such payments should continue 'until further order of the court.' On August 31, 1971 another order modifying the final judgment was entered by which plaintiff father was required to pay to the defendant mother the sum of $115 'as and for support of the minor child of the parties.' That order is silent as to any termination date and contains no provision that the payment shall continue 'until further order of the court' as was provided in the previous order. On July 1, 1973 Chapter 73--21, removing the disability of non-age to persons 18 years of age became effective. That statute provides as follows:

'Section 1. Subsection (14) of section 1.01, Florida Statutes, is created to read:

'1.01 Definitions.--In construing these statutes and each and every word, phrase or part hereof, where the context will permit:

'(14) The word 'minor' includes any person who has not attained the age of 18 years.

'Section 2. 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 Constitution of the State of Florida immediately preceding the effective date of this act. Provided, however, this act shall not prohibit any court of competent jurisdiction from requiring support for a Dependent person beyond the age of 18 years; and provided further that any crippled child as defined in chapter 391, Florida Statutes, shall receive benefits under the provisions of said chapter until age 21, the provisions of this act to the contrary notwithstanding.

'Section 3. This act shall operate prospectively and not retrospectively and Shall not affect the rights and obligations existing prior to the effective date of this act.

'Section 4. Any law inconsistent herewith is hereby repealed to the extent of such inconsistency. In editing the manuscript for the next revision of the Florida Statutes, the statutory revision and indexing service is hereby directed to conform existing statutes to the provisions of this act.

'Section 5. In the event that any provision or application of this act is held to be invalid, it is the legislative intent that the other provisions and applications hereof shall not be thereby affected.

'Section 6. This act shall take effect July 1, 1973.

'Approved by the Governor May 9, 1973.' (Emphasis added)

The son of the parties became 18 years of age on February 6, 1972.

Following the effective date of the above mentioned statute plaintiff-father discontinued making payments, on advice of counsel, on the assumption that the 'child' was then legally an adult and that therefore 'child support payments' were not required. The defendant-mother procured the issuance of a rule to show cause and on October 5, 1973 the trial judge found the plaintiff to be in arrears in the total amount of $460 through the payment due August 2, 1973 and allowed 15 days for payment thereof. He further ordered the plaintiff to pay an attorney's fee of $50 for the defendant's attorney incident to the bringing of the rule to show cause.

Via some vehicle not quite clear in the record, a further hearing was held on October 7, 1973 at which hearing the evidence revealed that the son of the parties was a sophomore attending Florida Junior College; that he lived with his mother and stepfather who provided him with the necessities of life; that he had theretofore worked but had been injured on the job resulting in payment of $72 bi-weekly as workmen's compensation; that he had no permanent disability and since his injury had worked for a construction company as a laborer earning $3.80 per hour which job he had voluntarily quit to become a student. The son testified that he was enrolled taking prelaw courses with the anticipation of ultimately attending law school. The plaintiff did not contend that he was financially unable to make the payments but stated that he hadn't been 'treated like a father' and essentially had lost control of his son.

On October 23, 1973 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 plaintiff-father and further stating that the son 'in the court's opinion, is entitled to a college education at the expense of his parents.'

This appeal followed.

The Supreme Court of Florida, in Perla v. Perla, Sup.Ct.Fla.1952, 58 So.2d 689, had occasion to consider a court's order wherein the father of a 33 year old mentally retarded child was sought to be required in a divorce proceeding to pay support to the mother of the child. The court there stated:

'Generally, the obligation of a parent to support a child ceases when the child reaches majority, but an exception arises when the child is, from physical or mental deficiencies, unable to support himself. The overwhelming weight of authority supports the view, however, that a divorce suit is not the proper proceeding where the responsibility may be fixed and the burden imposed. Borchert v. Borchert, 185 Md. 586, 45 A.2d 463, 162 A.L.R. 1078.

'An action for divorce is statutory, and we can find nothing in our laws * * * warranting an order requiring a father to pay to his erstwhile wife money for the support of an adult child, even though the child is mentally and physically afflicted. The mother should not, in a divorce proceeding, be made a medium through which payments coerced from the father would reach an adult child.

'We do not hold that for all time the father, in the transaction with the mother, managed to shrug off any responsibility for supporting the child, but only that now, and by a decree in this suit, the court should not require him to compensate the mother for what the care and custody may be costing her.' (at page 690, of 58 So.2d)

Again, in Zalka v. Zalka, Sup.Ct.Fla.1958, 100 So.2d 157, that court, citing Perla v. Perla, supra, restated the proposition that a mother's right to receive support money 'would automatically terminate upon the son's attaining his majority.'

This Court, in Fincham v. Levin, Fla.App. (1st) 1963, 155 So.2d 883, held that a divorced father may be required to contribute to the support of his unmarried adult daughter who was congenatively mentally and physically unable to care for and support herself, saying however:

'* * * He (appellant) cites the annotation in 1 A.L.R.2d at page 914 in support of the proposition that the common law went no further than to impose on parents the duty of supporting their minor children, and that as a general rule there is no obligation on the part of a parent to support an adult child. This is unquestionably the rule with respect to able-bodied children. * * *' (at page 884) (Emphasis added)

In Carmody v. Carmody, Fla.App. (1st) 1970, 230 So.2d 40, this Court held that 'by operation of law' a son 20 years of age whose disabilities of non-age had been removed, a sophomore in college with approximately $3,000 in savings was 'not entitled to parental support as a matter of law.'

In a per curiam opinion this Court, in Register v. Register, Fla.App. (1st) 1970, 230 So.2d 684, said:

'It is discretionary with the trial court as to whether any allowance should be made to defray college expense, with many factors entering into the question, one being whether the child is college material or not. These factors as well as others will continue to exist Until a dependent child reaches his or her majority and must be determined by the court periodically when and if the needs arise and shall be dependent also upon the father's financial ability to supply such needs.' (at page 684) (Emphasis added)

In Bosem v. Bosem, Fla.App. (3d) 1972, 269 So.2d 758 the court, in considering an 'open ended' support order, said:

'* * * Of course, the provisions must be limited to the period of time before the children become twenty-one years old. * * *' (at page 763)

In Field v. Field, Fla.App. (2d) 1974, 291 So.2d 654, opinion filed March 22, 1974, our sister court of the Second District held that the trial court erred in modifying a final judgment by changing the termination date of child support payments from age 21, as provided in the final judgment of divorce, to age 18, saying:

'* * * This modification, apparently made by the trial court sua sponte, is a misinterpretation of the applicable law. Chapter 73--21, Laws of Florida, provides that the change in the minimum age of majority is to operate prospectively and not retrospectively and is not to affect pre-existing rights. The change in the instant case is not justified by the record and must be reversed.'

As noted, the final judgment in the Field case specifically provided that the child support payments continue until the child reached age 21. The final judgment in the case sub...