YOUGRAJ BEHARRY, APPELLANT,
v.
JEAN MARIE DRAKE, APPELLEE

Fla. 5th DCA | 2010-12-30
No. 5D10-219
MONACO, C.J. and LAWSON, J., concur.
52 So. 3d 790 Florida District Court of Appeal, Fifth District (2010) Caution
Cited by 22 cases

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Synopsis

In a paternity case, the Florida appellate court affirmed the trial court's custody and time-sharing arrangement but reversed the requirement that the father secure $100,000 in life insurance to cover child support, finding the amount exceeded his total child support obligation of approximately $73,000.


Holding

The court affirmed that the trial court did not abuse its discretion regarding the time-sharing arrangement and did not improperly adopt the mother's proposed judgment. However, the court reversed the life insurance requirement, holding that the amount must be limited to the extent necessary to secure the actual child support obligation, which in this case was approximately $73,000, not $100,000.


Headnotes

[1] A trial court does not abuse its discretion by adopting a party's proposed final judgment verbatim when the court has considered proposals from both parties and has made…

[2] A trial court abuses its discretion by ordering a parent to secure child support obligations with a life insurance policy in an amount exceeding the total child support o…

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Key Quotes

“To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.”

Establishes the statutory authority and limiting principle that life insurance must be 'to the extent necessary' to protect the child support award

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Facts & Procedural History

The father filed a paternity petition regarding two children. After a non-jury trial, the trial court entered a final judgment ordering child support …

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Opinion of the Court
PALMER, J.

PALMER, J.

Yougraj Beharry (father) appeals the final judgment of paternity entered by the trial court. Concluding that the trial court abused its discretion by ordering the father to secure a life insurance policy in the amount of $100,000.00, and that the final judgment contains a typographical error, we affirm in part and reverse in part.

The father filed a petition seeking a determination of paternity for his two children and for other related relief. After *792conducting a non-jury trial, the trial court entered a final judgment which, among other things, provided for the payment of child support, shared parenting between the father and appellee, Jean Drake (mother), and ordered the father to secure his child support obligation with a life insurance policy in the amount of $100,000.00, with the mother as the named beneficiary.

The first argument presented by the father on appeal is that the trial court improperly delegated its decision-making authority to the mother’s attorney by adopting the mother’s proposed final judgment verbatim. To support his argument, the father relies on the Florida Supreme Court’s ruling in Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004) in which the Court held:

When [a] trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

875 So.2d at 390. We conclude that Per-low is factually distinguishable from the present case.

Here, the trial court received proposed final judgments from both parties and did not enter its final judgment until six days after the submission of the proposed judgments. The record reveals no facts to support any claim of impropriety on the part of the trial court, and the record supports the trial court’s factual findings as set forth in the final judgment.

The second argument presented by the father is that the trial court abused its discretion by ordering him to secure his child support obligation with a $100,000.00 life insurance policy. We agree.

Section 61.13(1)(c) of the Florida Statutes (2007) authorizes trial courts to order a parent to carry a life insurance policy:

Support of children; Parenting and time-sharing; Powers of Court
(c) To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.

However, the amount of life insurance required by the trial court must be related to the extent of the obligation being secured. Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009) (citing Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004)).

The father argues that the amount of the $100,000.00 life insurance policy ordered by the trial court was in excess of the amount necessary to secure his child support obligation.1 According to the fa*793ther, he is obligated to pay approximately $73,000.00 in child support payments. The mother does not dispute the father’s calculation of the total extent of his child support obligation, but, she argues that the difference between the amount of the policy and the father’s total child support obligation is minimal and, therefore, no reversible error has been demonstrated. We conclude that the trial court erred by requiring the father to purchase a life insurance policy in an amount which exceeds his child support obligation. Therefore, the final judgment is reversed and this matter is remanded with instructions to limit the amount of life insurance coverage required to the amount of the obligation it secures.2

The father’s third argument is that the trial court erred by limiting his access to his children to five days a month. We disagree. The father mischaracterizes the time sharing arrangement established in the final judgment. The father was given alternating weekends (Friday after-school until Monday morning) of each month. The father was also given a third Friday overnight until Saturday at 4 p.m. due to the mother’s work schedule. The father and mother were given shared/alternating holidays and school vacations, and the father was given a month during the children’s summer vacations. A trial court’s custody or time sharing determination is reviewed under the abuse of discretion standard of review. Smith v. Smith, 39 So.3d 458, 460 (Fla. 2d DCA 2010) (citing Burnett v. Burnett, 995 So.2d 519, 524 (Fla. 2d DCA 2008)). We find no abuse here.

Lastly, the parties agree that the final judgment contains a typographical error with regard to N.B.’s birth date. On remand the error must be corrected.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO, C.J. and LAWSON, J., concur.


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Citator

Cited By (11 total)

  • Empire World Towers, LLC v. CDR Créances, 89 So. 3d 1034 (Fla. 3d DCA 2012)
    …dopted the proposed order only two hours after its submission, the trial court in this case did not adopt the Bank’s proposed order until thirteen days after the defendants’ submission, and six days after the Bank’s submission. See Beharry v. Drake, 52 So. 3d 790, 792 (Fla. 5th DCA 2010) (distinguishing Berg-Perlow and finding no impropriety where the trial court received proposed final judgments from both parties and did not enter its final judgment until six days after submission of the proposed judgments)…
  • Lissette C. Schwieterman v. Schwieterman, 114 So. 3d 984 (Fla. 5th DCA 2012)
    …r wife contends the trial court erred in the application of law and thus review is de novo. See Wade v. Hirschman, 903 So. 2d 928, 932 (Fla.2005). Former husband contends the proper standard of review is an abuse of discretion. See Beharry v. Drake, 52 So. 3d 790, 793 (Fla. 5th DCA 2010). In large part, the answer to that question controls the disposition of this matter. Former wife argues the final judgment must be reversed as to the parenting plan and time-sharing schedule because the trial court presumed…
  • Foster v. Foster, 83 So. 3d 747 (Fla. 5th DCA 2011)
    …g Zangari v. Cunningham, 839 So. 2d 918, 920 (Fla. 2d DCA 2003)). It is error, for example, for a trial court to require the obligated spouse to purchase a life insurance policy in an amount that exceeds his support obligation. See Beharry v. Drake, 52 So. 3d 790, 793 (Fla. 5th DCA 2010). Accordingly, the trial court must specify whether the insurance is security for unpaid support obligations, in which case only a portion of the proceeds are to be distributed to the beneficiaries upon the spouse’s death to…

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