Lang v. LangLang v. Lang
This is an appeal from a modification of a final decree for divorce. On the basis of appellee-wife‘s petition for modification the court below increased child support payment; gave each party the right to declare one of their two children as a tax exemption; and awarded attorney‘s fees to appellee.
Prior to their divorce in Florida, the parties and their two minor children resided in the State of New York. In 1961 the рarties separated and entered into a separation agreement fixing their respective rights which included a provision for child custody and support. In 1962 the parties entered into a supplementary agreement which reduced the appellant‘s payments for the maintenance of the wife and support of the children. In 1963 the wife filed for divorce in Florida. After finding that the court had jurisdiction over the parties the cоurt, on May 14, 1963, entered a final decree of divorce for the appellee. The final decree directed that the parties carry out the provisions of the aforementioned separation agrеements; the order set forth the specific amounts that the appellant should pay to the appellee which amounts were those previously contained in the supplementary separation agrеement.
On September 21, 1970, based upon allegations of the needs of the minor children the court granted appellee‘s petition for modification increasing the support of each minor child from $100.00 per month to $150.00 per month.
The order of the court, therefore, not only modified the divorce decree entered in 1963 but had the effect of modifying the provisions of the separation agreement entered into prior tо the divorce.
It is the appellant‘s contention that the trial court was without authority to enter an order modifying the amounts contained in the separation agreement inasmuch as the rights of the parties were fixеd thereby; appellant further contends that the trial court erred in failing to construe the separation agreements in accordance with the laws of the State of New York. The separation agreemеnts contained provisions to the effect that the rights of the parties would be governed by the laws of the State of New York and that the agreements could not be modified “other than in writing signed by both parties“.
No citation is nеeded for the principle that the decree of the chancellor comes to this court on appeal with a presumption of correctness. A party who challenges the correctness of inсreased allowance of child support has the burden of demonstrating on record an abuse of discretion. McKenna v. McKenna, Fla. App. 1969, 220 So.2d 433. It is a fundamental proposition that the welfare of minor children is the concern of the state in whiсh the child may reside or be domiciled. State ex rel. Galen v. Kuhl, Fla. App. 1958, 103 So.2d 225. In furtherance of this proposition the legislature enacted
In Lee v. Lee, supra, the Supreme Court of Florida, in permitting a modification of a separation agreement, clearly stated that “we know of no rule of law by which a father may by contract obviate or impair his obligation to support his minor children“. The welfare of minor children is of such paramount importance as to constitute an integral part of any separation agreement; every separation agreement must be construed in light of this basic principle. Not only is this principle implicit in the separation agreement but additionally it transсends any contractural provision in derogation thereof. For this principle to be applicable it makes little difference whether such an agreement was executed in this state or any other state. Where the court has jurisdiction over the parties, as in the case sub judice, interpretation or modification of a separation agreement affecting the welfare of children is not only permissible but obligatоry where the circumstances so indicate.
If we were to accept the appellant‘s contention that the law of New York should govern we would still reach the same conclusion consistent with New York law. In MсMains v. McMains, Ct. of Appeals N.Y. 1965, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185, it was held that even where a separation agreement contains a nonmerger provision, i.e., the agreement being deemed to be independent of the divorce decree, the court is not prevented from later modifying the divorce decree (and separation agreement) where the circumstances justify such modification. The decision in McMains is particularly noteworthy in that the court‘s modification dealt solely with an increase in alimony for the wife and was not even concerned with the question of the welfare of minor children. In the very recent case of Kern v. Kern, 1970, 65 Misc.2d 765, 319 N.Y.S.2d 178, the Family Court of the City of New York clearly stated that the basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligation; “children are not chattels whose rights can be bargained away by pаrents“; such agreements will be evaluated with the best interests of the child as its criteria.
Therefore, even applying New York law, it is our opinion that it was within the discretion of the trial court to enter an order of modificаtion increasing child support payments. Cf. Posner v. Posner, Fla. 1970, 233 So.2d 381.
We are of the view, however, that the trial court exceeded its authority in granting the appellee the right to declare one of her two children as a tax exemption for the taxable year 1970 and each taxable year thereafter. Under the terms of the separation agreements heretofore mentioned, which the trial court in its final decree of divorce direсted the parties to carry out (except as modified by the order appealed herein), the appellant was entitled to claim the children as dependents on his income tax return unless the appеllee could demonstrate that she furnished more than one-half of the support of each child. At first blush it may seem that all the trial court undertook to do was merely to modify
Accordingly, whether either appellee or appellant “shall have the right to declare one child as a tax exemption” is to be determined by the applicable provisions of the Internal Revenue Code and not by the terms of the order for modification.
We are also of the opinion that the trial court erred in awarding attorney‘s fees to appellee in connection with appellant‘s motion to rehear the order of modification granted in favor of the appellee. The law is well established in Florida that costs, expenses and attorney‘s fees cannot be awarded by a court in a suit unless such award is authorized by statute or by agreement of the parties. Gullette v. Ochoa, Fla.App. 1958, 104 So.2d 799.
We further find no abuse of discretion by the trial court in denying appellant‘s petition for rehearing of the order of modification.
To the extent that the trial court‘s order increases child support payments and denies rehearing, it is affirmed. To the extent that the trial court‘s order determines the status of minor children for income tax exemption purposes and awards attorney‘s fees to appellee such order is quashed. The trial court is directed on remand to modify its orders consistent with this opinion.
Affirmed, in part; reversed, in part.
REED, C.J., and OWEN, J., concur.