DENISE L. SERIO, APPELLANT,
v.
JACK G. SERIO, APPELLEE

Fla. 2d DCA | 2002-11-22
No. 01-1918
PARKER and CASANUEVA, JJ., Concur.
830 So. 2d 278 Florida District Court of Appeal, Second District (2002) Caution
Cited by 17 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A marital settlement agreement provision waiving child support is invalid because the right to child support belongs to the children, not the parents. However, this invalid provision can be severed from the rest of the agreement if the agreement's essential purpose can be achieved without it.


Headnotes

[1] Parents cannot waive their children's right to child support, as this right belongs to the children and is a dual obligation imposed by the state.

[2] A contract containing both legal and illegal terms may be enforced as to its legal portions if the illegal terms can be refused without nullifying the contract's essentia…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

During divorce proceedings, the parties entered into a prejudgment agreement that included a waiver of child support by the husband in exchange for th…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SILBERMAN, Judge.

SILBERMAN, Judge.

Denise L. Serio appeals the final judgment dissolving her marriage to Jack G. Serio. She raises three issues, one of which requires reversal of a portion of the final judgment. We affirm without comment the other issues raised by Mrs. Serio.

The Serios were married in 1983. They had three children, all of whom are still minors. Mr. Serio filed his petition, for dissolution of the marriage in 1999. During the dissolution proceedings, the Serios entered into a prejudgment agreement. The agreement provided for shared parental responsibility -for the children, but Mr. Serio was designated as the primary residential parent. The agreement also stated that Mr. Serio “waives any right to child support for the children in consideration of the Wife’s waiver of right to alimony.” Apart from the waivers of child support and alimony, the agreement addressed the disposition of marital and personal property, the parties’ rights and obligations as to assets and liabilities, child custody and visitation, and other issues relating to the children.

After the agreement was entered into, a dispute arose as to its validity. Mr. Serio filed motions to enforce the agreement, and Mrs. Serio filed an objection to enforcement. Mrs. Serio also filed motions challenging the validity of the agreement and seeking to set aside the agreement. Among other things, Mrs. Serio asserted that the agreement was void because it contained an improper waiver of child support.

Following a hearing on the objection and the motions directed to the agreement, the trial court found that the agreement was valid. After a trial, the court entered a final judgment dissolving the marriage. In accordance with the terms of the agreement, the final judgment provided that Mr. Serio shall not receive child support from Mrs. Serio and that Mrs. Serio shall not receive alimony from Mr. Serio. The final judgment contained no other findings as to child support.

In this appeal, Mrs. Serio argues that the trial court erred in concluding that the agreement was valid and enforceable. She asserts that the agreement is void because it contains an invalid waiver of the children’s right to child support and that the final judgment must be reversed because it is based on the void agreement.

It is well settled that parents may not waive their children’s right to support because that right belongs to the children. State Dep’t of Revenue v. Ortega, 682 So. 2d 589, 590 (Fla. 2d DCA 1996); see also Imami v. Imami, 584 So. 2d 596, 598 (Fla. 1st DCA 1991); Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979). While the parties to a marriage may contract between themselves as to who will assume particular obligations, they cannot contract away their children’s right to such support. McClish v. Lee, 633 So. 2d 56, 57-58 (Fla. 5th DCA 1994). Child support “is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.” Armour, 377 So. 2d at 800.

The Serios’ agreement contains no provision for child support but instead contains an express waiver by Mr. Serio of “any right to child support for the children.” Neither the agreement nor the final judgment addresses the children’s needs or the parents’ obligations to meet those needs. Because the children’s right to child support could not be waived by Mr. Serio, we conclude that portion of the agreement is invalid and the final judgment must, at least in part, be reversed.

Mrs. Serio also argues that the entire agreement must be declared void due to the improper waiver of child support. We disagree.

In considering whether the entire agreement is void, we must look to general contract principles. See Mott v. Mott, 800 So. 2d 331, 333 (Fla. 2d DCA 2001). In support of their respective positions, both parties cite to Title & Trust Co. of Florida v. Parker, 468 So. 2d 520 (Fl’a. 1st DCA 1985). There, the court noted that if a contract contains both legal and illegal terms, if “enforcement of the illegal terms can be refused without nullifying the contract’s essential purpose,” courts will ignore the illegal terms while giving effect to the valid portions of the agreement. Id. at 524.

Paragraphs one through six of the agreement set forth details relating to the children including custody, contact, and visitation. The remainder of the agreement addresses the financial aspects of the dissolution including the waivers of alimony and child support, property distribution, and related issues. While the various provisions of the agreement dealing with the financial aspects of the dissolution are interrelated, the record does not reflect that the custody and visitation provisions are interrelated with or dependent upon the financial provisions of the agreement.

As the waiver of child support is void and is interrelated with the other financial provisions of the agreement, we conclude that the financial provisions of the agreement are invalid. However, since the financial provisions are not interrelated with the child custody, contact, and visitation provisions, the latter provisions can be given effect and are valid and binding. See id. Because of our holding that the financial provisions of the agreement are invalid and because the final judgment relied on the agreement to resolve the financial issues between the parties, we reverse the final judgment solely as to the financial aspects of the dissolution and remand for further proceedings consistent with this opinion. In all other respects, the final judgment of dissolution is affirmed.

Affirmed in part, reversed in part, and remanded.

PARKER and CASANUEVA, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Wilcox v. Munoz, 35 So. 3d 136 (Fla. 2d DCA 2010)
    …d support. Simply put, child support is different than alimony or equitable distribution. “Child support ‘is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.’ ” Serio v. Serio, 830 So. 2d 278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979)). The right to child support belongs to the child, and it cannot be waived by parents. Id. We are thus disinclined to extend Esaw to cases involving child supp…
  • Taylor v. Terrie E. Bonsall, 875 So. 2d 705 (Fla. 5th DCA 2004)
    …was made on behalf of Devon. Thus, I fail to see how Devon’s mother’s signature on the stipulation can affect Devon’s right to collect support. Certainly, Devon’s mother could not barter away Devon’s substantive right to support. See Serio v. Serio, 830 So. 2d 278, 280 (Fla. 2d DCA 2002) (parents may not waive child support by agreement because the right belongs to the child). It logically follows, then, that Devon’s mother has no authority to waive her procedural remedy. Second, even if the stipulation is o…
  • Tinoco v. Savannah Leigh Lugo, 342 So. 3d 845 (Fla. 2d DCA 2022)
    …for further proceedings to ensure that the child's continuing support needs will be met. "Child support 'is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.' " Serio v. Serio, 830 So. 2d 278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979)). Because "child support is a right that belongs to the child," the trial court has a duty to ensure that child support obligations are appropriate and serve t…

Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw