Zolonz v. Zolonz, 93-1270

• Decision Date: 16 August 1995
• Docket Number: No. 93-1270,93-1270
• Citation: 659 So.2d 451
• Parties: 20 Fla. L. Weekly D1842 S. Donald ZOLONZ, Appellant, v. Lorraine ZOLONZ, Appellee.
• Court: Florida District Court of Appeals

Page 451

659 So.2d 451

20 Fla. L. Weekly D1842

S. Donald ZOLONZ, Appellant, v. Lorraine ZOLONZ, Appellee.

No. 93-1270.

District Court of Appeal of Florida Fourth District.

Aug. 16, 1995.

J. Steven Reynolds, West Palm Beach, for appellant.

Philip J. Gouze of Philip J. Gouze, P.A., Fort Lauderdale, for appellee.

FARMER, Judge.

The principal issue arousing our attention in this appeal from an order holding the father in contempt for failing to pay child support is whether after the child has reached the age of majority the court can modify agreed child support payments for the child's higher education. We answer in the negative and reverse that part of the order under review.

The parties signed a property settlement agreement and were divorced in 1974. The document, which was adopted by the court, contained the following provision on the subject of child support "3. SUPPORT FOR CHILD: The Husband agrees to pay to the Wife the sum of $35.00 per week as child support for the minor child of the parties, this sum to be payable through the Office of the Court Trustee of the Circuit Court of Broward County, Florida, in addition to any fees charged by the Court Trustee for this service. * * * Such payments shall continue until the said child dies, or terminates his formal education and becomes gainfully employed which shall include entry into the military service. Payments to be made in accordance with this provision shall be made on Friday of each week beginning with the first Friday following execution of this Agreement." [e.s.]

In another paragraph, they agreed:

"9. MODIFICATION: No modification or waiver of any of the terms hereof shall be valid unless in writing and executed by both parties with the same formality as this Agreement. No waiver of any breach hereof or default hereunder shall be deemed a wavier of any subsequent breach or default of the same or similar or dissimilar nature."

The final judgment ordered compliance with the agreement and reserved jurisdiction to enforce the provisions of the judgment and the incorporated agreement. The parties never agreed to any modification. The father paid the mother $140 per month, rather than $35 per week, until the child's 18th birthday on January 30, 1991, when he stopped all payments. At that time the child was a full time student at a university in Illinois.

In April 1992, the mother moved to modify the final judgment's provision for child support. She also moved to hold the father in contempt for unpaid arrearages accruing both before and after the child's majority and for failing to comply with provisions relating to the health care of the child and insurance. A general master heard the evidence and recommended that the father be found in contempt for failing to pay 4 weeks of support for each calendar year since 1974, for failing to pay any support since the child's majority, and for failing to comply with the health care cost and insurance provisions. The master also recommended that the amount of support be modified from $35 weekly to $563 monthly effective from the date of the motion for modification (April 1992). The judge accepted the recommendation and entered a final order accordingly. The father appeals.

We are unable to agree with the mother's position that the court has the power to modify the amount of agreed child support payments after the child has passed the age of majority. As the fifth district recognized in Department of Health & Rehabilitative Services v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992), there are two separate and distinct legal sources for the obligation of child support. Until the child reaches majority, the law of the state of Florida imposes on a parent the obligation to support his or her minor children. See Sec. 61.13(1)(a), Fla.Stat. (1993) (court may order any parent who owes duty of support to a child to pay support in accordance with guidelines in Sec. 61.30); and Sec. 743.07(2), Fla.Stat. (1993) (court may require support of person beyond age of 18 who is dependent because of physical or mental incapacity).

Contracts between the parents regarding the support of their minor children are subject to the plenary power of the state to control, regulate and discretion to enforce:

"Agreements that merely recognize a legal (statutory or common law) duty and contract as to an amount cannot limit the duty imposed by law and the legal duty of parental support is always subject to contract enforcement, any contract provision to the contrary...