FELIX MARTINEZ, APPELLANT,
v.
AIDA AGOSTINI AND DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, APPELLEES
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Martinez appeals a paternity finding and child support award in a case involving an out-of-wedlock child. The court affirms paternity but reverses the child support calculation, holding that the trial court erred by applying statutory guidelines that were not yet in effect when the complaint was filed.
The court affirmed the paternity finding but reversed the child support award. The guidelines applicable prior to the statutory change should have been used. On remand, the trial court should consider the father's wife's income insofar as it affects his ability to support his three children with his wife, while recognizing that his wife assumes no obligation to support the out-of-wedlock child. The court affirmed the order requiring the father to secure health insurance for the child.
[1] Child support guidelines enacted after a complaint is filed cannot be exclusively relied upon to determine child support awards.
[2] When recalculating child support, a court should consider the income of a parent's spouse, even if the spouse is not the parent of the child in question, to assess the pa…
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Join FLexlaw to unlock all legal intelligence“it was error for the trial judge to rely exclusively on the statutorily set child support guidelines, § 61.30, Fla.Stat. (1989), in determining the amount of the support award because the guidelines were not yet in effect when the complaint was filed”
Establishes the primary error requiring reversal of the child support calculation
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Join FLexlaw to unlock all legal intelligenceMartinez was determined to be the father of a child born out of wedlock. The child's mother died of cancer after final judgment was entered. The mothe…
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PER CURIAM.
This case involves the issues of paternity and a father’s obligation to pay support for his child born out-of-wedlock. The child’s mother died of cancer after final judgment was entered. While we find no error in the trial court’s finding of paternity, we reverse the child support award and remand for further proceedings based on the following analysis. First, it was error for the trial judge to rely exclusively on the statutorily set child support guidelines, § 61.30, Fla.Stat. (1989), in determining the amount of the support award because the guidelines were not yet in effect when the complaint was filed. See Trager v. Trager, 541 So. 2d 148 (Fla. 4th DCA 1989); Reed v. Reed, 541 So. 2d 755 (Fla. 1st DCA 1989).1 Upon remand the trial judge should utilize those standards applicable prior to the statutory change. As part of his reconsideration of how much the appellant father is obligated to pay in child support, the trial judge should consider the income of the appellant’s wife (who is not the mother of the child) inasmuch as it impacts on the appellant’s obligation to support the three children born to him and his wife. However, the court should recognize that the appellant’s wife has assumed no obligation to support the out-of-wedlock child.
Second, we note that the child support awarded upon remand will go partly to the deceased mother’s estate2 and partly to HRS due to the fact that the mother received state economic assistance to care for the child. See 409.2561(3), Fla.Stat. (1989). At oral argument, HRS clarified that support payments are sought from the date of the complaint’s filing and not from the date of the child’s birth, some seven months earlier. Consequently, based on the facts of this case, we need not address Valdes v. Lambert, 568 So. 2d 117 (Fla. 5th DCA 1990), which held that child support can be awarded only from the date a paternity action is filed.
Finally, we affirm the trial court’s order that the appellant secure health insurance for the child. We do not read section 742.031, Florida Statutes (1989), as prohibiting a trial judge from awarding any natural child health insurance benefits flowing from its natural parent. Moreover, the father admitted that he can add the child to his employer provided health insurance.
Consequently, we affirm the finding of paternity and remand for recalculation of the child support award in accordance with this opinion.
. In this regard, we note that if required to review this case applying the section 61.30 guidelines, we would be compelled to recognize and agree with Judge Zehmer’s special concurrence in Waldon v. Johnson, 561 So. 2d 1342 (Fla. 1st DCA 1990), inasmuch as it disapproves of the guidelines’ failure to recognize the cost of providing for the parent’s children other than those for whom the parent is making court ordered child support payments.
. Upon remand, the trial judge should ascertain whether or not the deceased mother's estate has or needs a personal representative to oversee collection and disbursement of the retroactive child support payments to which the mother’s estate is entitled. It should be pointed out that payments will accrue to the estate whether or not the appellant father gains custody of the child as he now seeks.
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Citator
Cited By
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Horn v. Fla. Dep't OF Revenue, 752 So. 2d 687 (Fla. 3d DCA 2000)…61.30(17) itself,or on the 1998 amendment to section 61.30(17), would be error. Florida courts have consistently held that section 61.30 cannot be applied retroactively to cases filed prior to the statute’s effective date. See Martinez v. Agostini, 579 So. 2d 280 (Fla. 3d DCA 1991); Trager v. Trager, 541 So. 2d 148 (Fla. 4th DCA 1989). This conclusion rests on the reasoning that the initial enactments of these subsections create new rights and liabilities, and, therefore, are appropriately applied only prosp…
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Reed v. Reed, 597 So. 2d 936 (Fla. 1st DCA 1992)…DCA 1983). We are aware of case law in which courts have held that the initial enactment of the child-support guidelines in 1987 created new rights and liabilities, therefore the guidelines were to be applied prospectively. See Martinez v. Agostini, 579 So. 2d 280 (Fla. 3d DCA 1991); Trager v. Trager, 541 So. 2d 148 (Fla. 4th DCA 1989). See also Reed v. Reed, 541 So. 2d 755 (Fla. 1st DCA 1989) (newly enacted guidelines did “not necessarily apply” to a petition for dissolution filed before the effective date…
Authorities Cited
- Trager v. Trager, 541 So. 2d 148 (Fla. 4th DCA 1989)
- Reed v. Reed, 541 So. 2d 755 (Fla. 1st DCA 1989)
- Valdes v. Lambert, 568 So. 2d 117 (Fla. 5th DCA 1990)
- Waldon v. Lisa Johnson & the State of Fla., 561 So. 2d 1342 (Fla. 1st DCA 1990)