JANE GIBBONS CARROLL, APPELLANT,
v.
IRA GREENE BRIGGS CARROLL, SR., APPELLEE
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A former wife appealed a trial court's suspension of child support after their sixteen-year-old son refused to visit his father. The appellate court reversed, holding that a noncustodial parent's child support obligation does not cease merely because the child refuses visitation, and that child support and visitation rights are independent obligations under Florida law.
The court reversed the suspension of child support, holding that a noncustodial parent's child support obligation does not cease upon the child refusing to visit, and that child support and visitation are independent obligations under Florida law. The court remanded with directions to order payment of all suspended child support payments.
[1] A noncustodial parent's child support obligation does not cease upon the child refusing to visit the noncustodial parent.
[2] Child support cannot generally be conditioned upon visitation.
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States the core holding that child support obligations are independent of visitation rights
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Join FLexlaw to unlock all legal intelligenceJane and Ira Carroll divorced and had three children together. For six years after the divorce, there was ongoing conflict over visitation rights. The…
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PARKER, Judge.
Jane Carroll, the former wife of Ira Carroll, Sr., appeals a supplemental final judgment which temporarily suspended child support based upon her sixteen-year-old son, Hunter Carroll, refusing to visit his father, Mr. Carroll. Although we sympathize with a trial judge dealing with an almost impossible situation, we reverse that portion of the judgment suspending the father’s child support obligation, concluding that the noncustodial parent’s child support obligation does not cease upon the child refusing to visit the noncustodial parent.
A review of this court file reflects that for six years following a final judgment of dissolution of marriage, there has been bitter strife between Mr. and Mrs. Carroll over Mr. Carroll’s rights of visitation with their three children. Two things happened to involve this court. The first was that the parties’ sixteen-year-old child filed a motion through his mother’s attorney to have the trial judge terminate the requirement that he visit his father. The trial court granted the son’s motion. The next thing to occur was that the trial court, on its own motion, terminated Mr. Carroll’s child support obligation for that child on a temporary basis until visitation was reinsti-tuted.
We recognize the dilemma of the trial judge and quote from his order denying Mrs. Carroll’s motion for rehearing:
The Former Wife’s position is that the Court erred in tying a child support obligation to a visitation issue. Ordinarily, the Former Wife would be correct, and as a general rule it is clear that both Chapter 61 and the apposite case law provide that child support cannot be conditioned upon visitation. However, the instant case defies, in many ways, the general rule.
It would serve no useful purpose, except for appellate review, to expend the labor necessary to fully lay out the post judgment etiology of this case. The file speaks for itself. By the time the temporary visitation order was entered in the fall of last year, the parties and the child in question had reached a point justifying not only a temporary cessation of visitation, but also support for that child. Hunter Carroll and his father had become adversaries in about every sense of the word. They had escalated their enmity to the point of a physical confrontation. Hunter referred to his father as “Mr. Carroll,” and indicated no respect whatsoever for him. Hunter actively resisted visitation with his father and in fact was the movant himself in the motion to terminate visitation. Hunter Carroll is a very sophisticated, bright, articulate sixteen year old boy who has, as he so forcefully points out, reached an age of discretion which all but insures that if he doesn’t want to have meaningful visitation, it simply will not occur. He believes he has been driven to this emotional juncture by his father’s behavior; the father believes his son’s attitude is a byproduct of the poisonous relationship between him and his former wife who is the custodial parent. Whatever the truth, it appears to the Court that where a child of sufficient maturity and intellect and discretion moves to terminate visitation, and where the motion is granted, this conduct justifies the suspension of support on a temporary basis. Of course support will be automatically and immediately re-instated once visitation re-commences.
We first note that this record contains no findings by the trial judge that Mrs. Carroll orchestrated her son’s motion to terminate visitation. We do not have to address today what this court’s position would be if that were the case. Although Mr. Carroll feels strongly that the wife and maternal grandparents have caused these problems, the trial judge made no such findings. Florida Statutes do provide a remedy for a noncustodial parent who is denied his or her visitation rights by the custodial parent. See § 61.13(4)(c), Fla.Stat. (1989).
Both natural parents share a duty to support a minor child, even though the trial court, under section 61.13(l)(a), may order either or both parents to pay child support upon dissolution of the marriage. Martin v. Martin, 480 So. 2d 683 (Fla. 5th DCA 1985), review denied, 491 So. 2d 279 (Fla.1986); O’Brien v. O’Brien, 424 So. 2d 970 (Fla. 3d DCA 1983); Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978); Condon v. Condon, 295 So. 2d 681 (Fla. 1st DCA 1974). Thus if this animosity had developed between the father and child while the parents were still married, the father still would have a duty of support of his family, including Hunter. This court has recognized that ordinarily, if a parent supports his child, he has the right to visit the child. However, this court has further recognized that there are instances where a former spouse has a duty of support when visitation would not be advisable for various “sociological, psychiatric and other reasons.” Cortina v. Cortina, 108 So. 2d 63, 64 (Fla. 2d DCA 1958). The Third District court has recognized that the trial court cannot condition visitation upon the payment of support, but can limit or prevent visitation in the best interest of the child. Hechler v. Heckler, 351 So. 2d 1122 (Fla. 3d DCA 1977).
The trial court relied upon two cases in entering its order. We recognize that in Putnam v. Putnam, 136 Fla. 220, 186 So. 517 (1939), the supreme court affirmed a trial court’s order suspending support where a sixteen-year-old child refused to comply with the terms of visitation. However, we believe subsequent changes enacted in Chapter 61, Florida Statutes have overruled the holding in Putnam.1 We also recognize that there is language in Riley v. Connor, 509 So. 2d 1177, 1177 (Fla. 5th DCA 1987), which states that “there may be conduct, on the part of a child who has reached an age of discretion of such disrespectful and contumacious character, directed toward the obligor parent,” which justifies the temporary suspension of the duty of support. Unlike the Fifth District court, we are unwilling to say that conduct by a child, not shown to be orchestrated by one of the parents, should relieve a parent of his or her duty to support the child. This seems to punish only the other parent’s ability to pay for that child’s needs.
The all too familiar tragedy in this case is, as stated by the guardian ad litem, that “[tjhis appears to be a classic case of parental strife affecting the dependent children; the children are always the losers.” Instead of two parents working with one another and their child to deal with his concerns regarding visitation, we have instead the young man employing an attorney to file motions which require court resolution. And throughout this scenario, quality time between a child and his father is being lost which can never be replaced. The parents also should consider the effect this may have upon the other children.
While fully understanding the trial court’s attempt to do equity in this case, we reverse and remand with directions for the trial court to order the payment of all of the suspended child support payments.
LEHAN, A.C.J., and ALTENBERND, J., concur. . The current statutes reflect that the legislature recognizes that both parents owe a duty of support to a child and that the support is not dependent upon visitation rights. See §§ 61, 13(l)(a), (4)(b) and (c), Fla.Stat. (1989).
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McCARTNEY v. McCARTNEY, 659 So. 2d 371 (Fla. 2d DCA 1995)…mean that the trial court may not suspend child support as a sanction for a custodial parent’s violation of visitation orders. See State, Dep’t of Health and Rehabilitative Servs. v. Sandidge, 651 So. 2d 1261 (Fla. 1st DCA 1995); Carroll v. Carroll, 593 So. 2d 1131 (Fla. 2d DCA 1992). Underlying the holding in these cases is the legislative directive that the obligation to support a minor child should not be dependent upon visitation rights. By including “alimony” in the provisions of section 61.13(4)(b), the…
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Spalding v. Spalding, 907 So. 2d 1270 (Fla. 5th DCA 2005)…ontractual, the trial court was unable to modify the agreement if it was unambiguous. The Former Wife also advised the trial court that the language in Riley was dictum. She argued that the Second District had criticized Riley in Carroll v. Carroll, 593 So. 2d 1131, 1133 (Fla. 2d DCA 1992), where the court declared that it was “unwilling to say that conduct by a child, not shown to be orchestrated by one of the parents, should relieve a parent of his or her duty to support the child.” Id. Here, despite the For…
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Stanley v. Stanley, 756 So. 2d 210 (Fla. 4th DCA 2000)…dered child support payments “until further order of court”) was clearly wrong. See McCartney v. McCartney, 659 So. 2d 371 (Fla. 2d DCA 1995); Department of Health & Rehab. Servs. v. Sandidge, 651 So. 2d 1261 (Fla. 1st DCA 1995); Carroll v. Carroll, 593 So. 2d 1131 (Fla. 2d DCA 1992). Nonetheless, we think it clear that appellant may not be found in willful contempt for failure'to pay court-ordered child support payments when the court itself has said he need not do so “until further order of court.” Thus, we…
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 (11 total)
- O'Brien v. O'Brien, 424 So. 2d 970 (Fla. 3d DCA 1983)
- Haddox v. Lumbermens Mut. Cas. Co. & Renette Rousseau, 360 So. 2d 482 (Fla. 3d DCA 1978)
- Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978)
- Cortina v. Cortina, 108 So. 2d 63 (Fla. 2d DCA 1958)
- Daewid Hechler v. Marita Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977)
- Putnam v. Webster F. Putnam, Jr., 136 Fla. 220 (Fla. 1939)
- Tolbert Enters., Inc. v. Sonnenblick-Goldmansoutheast Corp., 295 So. 2d 681 (Fla. 3d DCA 1974)
- Condon v. Condon, 295 So. 2d 681 (Fla. 1st DCA 1974)
- Martin v. Martin, 480 So. 2d 683 (Fla. 5th DCA 1985)
- Heilman v. Anchor Sav. Bank, 509 So. 2d 1177 (Fla. 4th DCA 1987)