CARL WAYNE SPURLOCK, APPELLANT,
v.
NORMA JEAN SPURLOCK, APPELLEE
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In this child support modification appeal, the court affirmed an award of attorney's fees to the wife but reversed the trial court's order extending child support beyond the child's eighteenth birthday based solely on high school attendance, holding that post-majority support requires a finding of dependency.
The court held that support cannot be mandated after a child's eighteenth birthday without a finding of dependency, even if the child is still attending high school. The court affirmed the attorney's fees award but reversed the post-majority support order and remanded for further proceedings to allow the trial court to consider the applicability of the 1988 statutory amendment.
[1] Child support may not be mandated after a child's eighteenth birthday solely on the basis of the child attending high school without a finding of dependency.
[2] A court may require support for a dependent person beyond the age of 18 if the dependency is due to a mental or physical incapacity that began prior to the person reachin…
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Join FLexlaw to unlock all legal intelligence“support may not be mandated after a child's eighteenth birthday absent the finding of dependency, even if the child is still attending high school”
States the controlling legal principle that dependency is a prerequisite for post-majority child support, regardless of high school enrollment status
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Join FLexlaw to unlock all legal intelligenceThe husband and wife were parties to a child support modification proceeding regarding their eldest child. The trial court ordered child support to co…
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WIGGINTON, Judge.
In this appeal, the appellant husband challenges the trial court’s order entered pursuant to the Amended Petition for Modification of Child Support filed by the appel-lee wife and the husband’s Counterpetition. Among other things, the order directs that child support shall continue for the parties’ eldest child beyond his eighteenth birthday if he is still attending high school, in which event the support shall continue until the child graduates from high school or drops out of high school, whichever shall occur first. The order also directs the husband to pay the wife’s attorney’s fees.
We affirm the award of attorney’s fees to the wife, finding the trial court did not abuse its discretion; however, we must reverse the order insofar as it directs that child support shall continue after the child’s eighteenth birthday solely on the basis of his being in high school without a finding that the child would be dependent following his eighteenth birthday. This court has ruled that “support may not be mandated after a child’s eighteenth birthday absent the finding of dependency, even if the child is still attending high school.” See Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988); and Gelman v. Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987).
Under Point I in his brief, the husband argues that post-majority child support may not be awarded under Section 743.- 07(2), Florida Statutes (Supp.1988), unless the child is mentally or physically dependent, neither of which categories applies to his son. That subsection as amended in 1988 provides that the removal of the disability of nonage for all persons who are 18 years of age or older
... shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority....
Nonetheless, section 743.07(2) as amended was not argued before the trial court even though the hearing took place on February 8, 1989. Since the trial court did not have the benefit of argument concerning this statutory section in considering the award of post-majority child support, we reverse the order and remand the cause to the trial court for further hearing and the taking of testimony. The questions of whether or not the amendment has any applicability in this case, and if so then what effect should be accorded its terms, are both questions which remain entirely open for the court’s future disposition.
AFFIRMED, in part, REVERSED, in part, and REMANDED for further consideration consistent with this opinion.
SHIVERS, C.J., and WENTWORTH, J., concur.
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Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990)…court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority....” Spurlock v. Spurlock, 552 So. 2d 326 (Fla. 1st DCA 1989), indicates that the effect to be accorded the terms of this amendment remained an open question. According to the testimony of the wife in the present case, the parties’ son suffered psychological infirmities because of stress su…
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Reeves v. Reeves, 554 So. 2d 560 (Fla. 1st DCA 1989)…la. 4th DCA 1982); Krogen v. Krogen, 320 So. 2d 483 (Fla. 3d DCA 1975). A parent’s legal obligation is to continue support of his or her child, absent a finding of dependency, only to majority upon reaching the age of 18 years. Spurlock v. Spurlock, 552 So. 2d 326 (Fla. 1st DCA 1989); Gelman v. Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987); Broche v. Broche, 489 So. 2d 841 (Fla. 1st DCA 1986); Peeples v. Peeples, 516 So. 2d 1103 (Fla. 2d DCA 1987); Goldsmith v. Goldsmith, 487 So. 2d 332 (Fla. 1st DCA 1986); Wilk…
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Pitts v. Pitts, 566 So. 2d 12 (Fla. 2d DCA 1990)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988)
- Gelman v. Roslyn Uditsy Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987)