636 So. 2d 741 | Fla. Dist. Ct. App. | 1993
Lead Opinion
This is another domestic ease infected with more heat than light. The index to the record on appeal reflects over 100 entries since the 1989 final judgment of dissolution of marriage. One wonders if the parties should have their own division in the Fifteenth Judicial Circuit. Unfortunately, while this is only the second time this court has dealt with their family controversies,
As for the merits, we must reverse and remand for more judicial effort at the trial level, primarily because of a change in the law which occurred after the hearing in question. In Miller v. Schou, 616 So.2d 436, 438 (Fla.1993), the Florida Supreme Court held that an increase in ability to pay is itself sufficient to warrant an increase in child support. In her petition for modification of child support, appellant alleged that appel-lee’s financial circumstances had improved. Upon appellee’s refusal to provide appellant with his financial records, the trial court entered an order deeming appellee “able to meet any reasonable child support obligation.” Nevertheless, the trial court failed to consider appellee’s financial circumstances in determining that no change in circumstances had occurred. We direct the trial court on remand to inquire as to appellee’s increased ability to pay child support for the three children who were under eighteen years of age when appellant sought relief.
The trial court’s primary focus on remand should be the best interests of the children in accordance with section 61.13(l)(a), Florida Statutes (1991), not the inability of the mother to manage the funds allocated for the support of her children. See Hendry v. Hendry, 340 So.2d 942 (Fla. 4th DCA 1976). The latter concern can be rectified by practical implementing orders on the part of the trial court, which must also address the applicability of the child support guidelines when the necessary financial information is sorted out. Although the marital settlement agreement recognized that the guidelines were “totally inapplicable” to the parties’ then existing circumstances, the agreement did not address the application of the guidelines to any posb-1989 dispute. Moreover, the minor children’s part-time earnings are not relevant to the instant dispute.
We also reverse the trial court’s denial of appellant’s attorney’s fees. Section 61.-16, Florida Statutes (1991), authorizes a fee award in modification proceedings after consideration of the financial resources of both parties. “While the purpose of considering the parties’ finances in awarding attorney’s fees is to insure that both parties are not limited in their ability to receive adequate representation due to disparate financial status, this equitable principle must be flexible enough to permit the courts to consider cases with special circumstances.” Mettler v. Mettler, 669 So.2d 496, 498 (Fla. 4th DCA 1990). Appellee urges this court to affirm
. See Pariser v. Pariser, 601 So.2d 291 (Fla. 4th DCA 1992).
Rehearing
ON APPELLANT’S MOTION FOR CLARIFICATION OR REHEARING
In our opinion herein, we “direct[ed] the trial court on remand to inquire as to appel-lee’s increased ability to pay child support for the three children who were under eighteen years of age when appellant sought relief.” Sadly, there was a fourth child, found to be dependent albeit an adult, who was ill with
Although the general rule in Florida is that a parent has no duty to support a child who has attained the age of majority, there is a clear exception when a child is found to be statutorily dependent. See § 743.07, Fla.Stat. (1993); Perla v. Perla, 58 So.2d 689, 690 (Fla.1952); Privett v. Privett, 535 So.2d 663, 665 (Fla. 4th DCA 1988); Carter v. Carter, 511 So.2d 404, 406 (Fla. 4th DCA 1987). In the instant case, the trial court determined in its modification order that the child at issue was indeed dependent due to her tragic illness. Thus, there was a continuing duty to care for this child. See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).
Furthermore, appellant’s request for clarification on this issue is not defeated by the fact that the child at issue is now deceased. “[T]he effective date of a modification of child support payments is the date the petition is filed where it appears, as it does here, that the needs of the child existed as of that date.” Shufflebarger by Oktavec v. Shufflebarger, 460 So.2d 982, 984 (Fla. 3d DCA 1984). See also Meltzer v. Meltzer, 356 So.2d 1263, 1265-66 (Fla. 3d DCA 1978), cert denied, 370 So.2d 460 (Fla.1979). Any change in the child support obligations would be properly applied retroactively back to the date of the petition for modification. Meltzer, 356 So.2d at 1265-66.
Based on the foregoing, we grant appel-' lant’s motion for clarification of our opinion and further direct the trial judge to inquire into appellee’s increased ability to pay child support for four children. Support for the child now deceased should be assessed from the filing date of the petition for modification until the child’s death. Having clarified our opinion we deny that portion of the motion which seeks rehearing.
Concurrence Opinion
concurring specially.
I agree with the majority’s conclusion that this domestic strife must be remanded to the trial court for further proceedings. This is mandated by the supreme court’s decree in Miller v. Schou, 616 So.2d 436 (Fla.1993), that a paying spouse’s stipulation, or as in Mr. Pariser’s ease, a trial court’s sanction for failing to make financial discovery — that the paying spouse be deemed able to pay any reasonable increase in child support — is not enough. In fairness, the trial judge did not have the benefit of Miller when she entered the order regarding modification now on appeal.
I write separately out of concern that the majority opinion may be interpreted as mandating an increase in child support on remand. To be sure, there is much in Judge Glickstein’s majority with which I agree. Unquestionably, the best interests of the children, as always, is the polestar by which the trial court must be guided. Further, I agree that the parties’ stipulation at the time of the original dissolution of marriage, that the child support guidelines did not apply, may no longer be controlling. Not only have the guidelines been amended upward by the legislature, but until Mr. Pariser makes the required financial disclosure, no court can assess whether or not the guidelines may apply. Finally, the supreme court in Miller v. Schou noted “all five district courts of appeal have recognized that a substantial change in the paying parent’s income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need.” Id. at 437 (citations omitted).
This case, however, presents an additional element not present in Miller or the other cases on which it relies. Here there is ample record support for the trial court’s findings regarding Mrs. Pariser’s irresponsible, perhaps vindictive, wasting of substantial assets she received via the original property settlement agreement. Further, the record demonstrates that while the minor children have gone from living in a $1 million dollar house, to living in a $390,000 house, their needs (and wants?) are still being met by the parents. The trial court, on remand, must undertake the difficult “balancing act” of not punishing the children by precluding them from participating in the father’s good fortune
Lastly, I agree it was error not to award Mrs. Pariser some portion of her attorney’s fees, depending on what Mr. Pariser’s financial disclosure reveals. While the trial court can consider the equitable implications of the former wife having run through over $1 million in settlement assets, it must still take into account her ability to afford counsel at the time the modification petition is heard.
. Justice Grimes was careful to point out in Miller that the paying parent’s extreme good fortune did not dictate that "the child of a wealthy parent will own a Rolls Royce_" Id. at 438.