WILLIAM E. FAGAN, APPELLANT,
v.
MAUDE FAGAN, APPELLEE

Fla. 5th DCA | 1980-02-27
No. 78-2401/T4-280
DAUKSCH, C. J., and COBB, J., concur.
381 So. 2d 278 Florida District Court of Appeal, Fifth District (1980) Caution
Cited by 31 cases

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Synopsis

A former husband appeals an order requiring him to pay child support arrearages and continuing support for his adult son who, though over 21, remained dependent due to mental disabilities. The court affirmed, holding that dissolution courts have jurisdiction to order support for dependent adult children and that the original divorce judgment's language contemplated support beyond age 18.


Holding

The court held that dissolution courts have continuing jurisdiction and are the proper forum to order and enforce child support for dependent adult children beyond age 18 or 21; that the award was not retroactive because the original judgment expressly contemplated support beyond age 18; and that a child is 'dependent' if unable to be self-sustaining due to mental or other disabilities, a status broader than legal incompetency, with the former wife as the proper enforcement party.


Headnotes

[1] A court with jurisdiction over a dissolution of marriage proceeding has continuing jurisdiction to enforce child support orders for adult dependent children.

[2] A dissolution judgment can require child support for a child beyond the age of majority if the child is dependent.

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Key Quotes

“the reduction of the age of majority to 18 years shall not prohibit "any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years."”

Establishes statutory authority for courts to order support for dependent adults beyond age 18, directly addressing the jurisdiction question raised by the appellant.

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Facts & Procedural History

The Fagans divorced in August 1973 with custody of 17-year-old twins granted to the wife. The divorce judgment required the husband to pay $190/month …

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

The-former husband, William E. Fagan, appeals the lower court’s Order on Motion for Enforcement filed by Maude Fagan, the former wife, to collect arrearages and enforce continuing child support payments for a child of the parties, who was over twenty-one years of age at the time of the enforcement proceeding and at the time the arrear-ages accrued. The appellant argues that the award of arrearages is erroneous because it is retroactive; that the lower court lacks jurisdiction to order arrearages or continuing support for this child; and that the former wife and mother is not the proper party to enforce the support judgment for the adult child. For the reasons stated in this opinion we disagree; and we affirm the trial court’s order. The marriage of the Fagans was dissolved by a Final Judgment dated August 17, 1973. Custody of the seventeen year-old twins, Bill and Susan, was granted to the wife; and Mr. Fagan was required to pay to the wife child support in the amount of $190.00 per month per child “until such time as each of them becomes self-supporting, married or emancipated (by any other reason than by virtue of reaching the age of eighteen.)” (Emphasis supplied).1 In addition, the Judgment required the former husband to be responsible for all medical and related expenses for the care and treatment of the son, “occasioned by reason of his mental disorders, disabilities or impairments.” Mr. Fagan made the child support payments for both children until they attained the age of 21 years, when he ceased any further support payments. Mrs. Fagan then sought enforcement of the Judgment to require Mr. Fagan to pay child support for both children from August 1977. The court denied any child support for the daughter, but based on testimony that the son was not capable of being self-supporting, the court required Mr. Fagan to pay child support of $190.00 per month for Bill, and a total of $380.00 per month until the arrearages were paid, plus interest. The lower court required Mrs. Fagan to put the funds so received in a joint savings account in her and her son’s name. At the time of the hearing, the son was living with his mother, and all of the testimony before the Court indicated he would have to continue living in her home, indefinitely, because of mental problems.

Appellant first argues that the trial court erred because the award of arrearages was “retroactive”, relying on Warren v. Warren, 306 So. 2d 197 (Fla. 1st DCA 1974). Because of our view of the original Judgment, we do not consider the award of arrearages “retroactive” in this case. Further, the record does not demonstrate any error in the calculation of the arrearages.

Appellant argues that the dissolution court is an improper forum to enforce child-support payments for an adult child. He relies on Perla v. Perla, 58 So. 2d 689 (Fla.1952). However since that case was decided, the Florida Legislature passed Florida’s “No-Fault” Dissolution Law, Chapter 61, and many revisions thereto, and Chapter 743 relating to “Disability of Nonage.” Section 743.07(2) of the Florida Statutes provides that the reduction of the age of majority to 18 years shall not prohibit “any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years.” (Emphasis supplied). The statute does not define the term, “court of competent jurisdiction.” Section 61.13 empowers a court in a proceeding for dissolution of marriage to order a parent to pay child support. The court which enters such an order is expressly given “continuing jurisdiction” to modify the child support provisions when required by the best interest of the child, change of circumstances of the parties, or “when the child or any one of the children has reached the age of 18 years.” Sec. 61.13(1), Fla. Stat. (1978). Clearly, the dissolution court is empowered to order child support for a child beyond the age of 18, if he is dependant, and such court is the proper forum to determine whether the status of dependency has ended, after the child attains the age of 18 years. Finn v. Finn, 312 So. 2d 726 (Fla.1975); George v. George, 360 So. 2d 1107 (Fla. 3rd DCA 1978); Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978). It is also a proper forum in which to enforce child support orders for such adult dependant children.

In this case, we construe the original Judgment entered by the lower court as constituting an order of support for a dependant child beyond the age of “majority.” At the time of the Judgment the age of “majority” was eighteen years,2 but, the Judgment expressly provided this child’s becoming 18 would not terminate the child support obligation; and it required the appellant to pay all medical expenses for the son occasioned by his “mental disorders, disabilities, or impairments.” No appeal was taken from that order. We must give it full credence, if sustainable. E. J. Smith Co. v. Van Straaten, 106 So. 2d 226 (Fla. 3rd DCA 1958); Holiday, Inc. v. Glaser, 121 So. 2d 677 (Fla. 3rd DCA 1960).

The issue before this court is thus, whether the evidence was sufficient to sustain the trial court’s finding that the child, at the time of the hearing, continued to be a “dependent” child. Cook v. Cook, 305 So. 2d 12 (Fla. 1st DCA 1974); In Re Estate of Donner, 364 So. 2d 742 (Fla. 3rd DCA 1978). On this issue the trial court had before it the testimony of Bill’s treating psychiatrist, Dr. James Parsons, and an evaluation by another psychiatrist, Dr. Lloyd Wilder. Both indicated that Bill is not currently able to be self-sustaining because of his mental condition. Dr. Parsons felt his condition was improving; Dr. Wilder was more guarded in his prognosis. At the time of the hearing Bill was able to hold a part-time job, under close supervision at a nursery; and he was attending a local junior college. Both psychiatrists said he needed continuing therapy and a sheltered type of environment to be able to function; and that he was currently not capable of managing his own affairs. The appellant argues that “dependent” child should be equated with an “incompetent” person. We reject that view, and hold that the evidence in this case sustains the trial court’s finding that Bill is a “dependent” child for whom support past the age of 18 years can be required from either or both parents.3

Under the circumstances in this case, Mrs. Fagan was a proper party to bring the enforcement suit. She was the person to whom the child support payments were payable and she is the logical person to enforce the order. For these reasons, the order of the lower court under review is affirmed.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur. . At the time the Judgment was entered, the “disability of nonage” or age of majority had been changed from 21 years to 18 years. § 743.07(1), Fla.Stat. (1973).

. § 61.13(1), Fla.Stat. (1978).

. At the time of the hearing, Bill was living with his mother, and it appeared he would have to continue to live with her indefinitely, because of his condition. She was willing to continue to supply him with a home. The lower court required that the support funds from Mr. Fagan be segregated in a special savings account in Mrs. Fagan’s and Bill’s joint names. The funds were to be used for Bill’s support, care and benefit. Should there be any doubt or problem concerning use of the funds for Bill’s benefit, or should Bill no longer make his home with Mrs. Fagan, there are remedies available to Mr. Fagan. § 61.13(1), Fla.Stat. (1978).


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Citator

Cited By (15 total)

  • Ritz v. Fla. Patient's Comp. Fund, 436 So. 2d 987 (Fla. 5th DCA 1983)
    …Statutes (1981), provides that a court may require parental support for a dependent child after it attains the age of majority.1 Support obligations for adult children mentally or physically disabled have been imposed on parents. See Fagan v. Fagan, 381 So. 2d 278 (Fla. 5th DCA 1980); Fincham v. Levin, 155 So. 2d 883 (Fla. 1st DCA 1963). We agree with Farber v. Olkon, and hold that where an adult child is incompetent and has no legally appointed guardian, the right to consent to medical or surgical treatment…
  • Nicolay v. Jacquelyn Ann Nicolay, 387 So. 2d 500 (Fla. 2d DCA 1980)
    …57 (Fla. 3d DCA 1974). . It might be said that Krogen conflicts with the Third District’s Finn decision. However, the latter opinion like the supreme court’s Finn opinion mentioned the dependency question only in dictum. . Accord, Fagan v. Fagan, 381 So. 2d 278 (Fla. 5th DCA 1980). . One might reasonably ask why a court could not order support for college for a child beyond the age of twenty-one since that age no longer [*506] has any statutory significance. The answer, we submit, is that while the legisl…
  • Treva D. Brown v. Brown, 714 So. 2d 475 (Fla. 5th DCA 1998)
    …court is a proper forum to enforce or modify a child support order for an adult dependent child where the dissolution court, in the original divorce decree, adjudicated support for the child to extend beyond the age of majority. See Fagan v. Fagan, 381 So. 2d 278 (Fla. 5th DCA 1980); George v. George, 360 So. 2d 1107 (Fla. 3d DCA 1978). That is not what occurred in this case.…

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