M.J.I., APPELLANT,
v.
A.J.K., APPELLEE
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Affirmed.
*733WHATLEY and NORTHCUTT, JJ., Concur.
ALTENBERND, J., Concurs specially with opinion.
Concurring.
I fully concur in this decision that affirms a final judgment of paternity in an action filed by the father, A.J.K. The primary issue in this ease concerns child custody. I write only to explain that my vote to deny attorney’s fees to the father is not based on the reasoning in Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999), and Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). Both of those cases hold that attorney’s fees cannot be awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly authorize fees on appeal.
It is true that both section 742.045 and section 742.031 authorize an award of attorney’s fees in paternity actions but make no reference to fees for an appeal. Neither statute limits attorney’s fees to a prevailing party and, thus, the provision in section 59.46, Florida Statutes (2008), interpreting statutes that award prevailing party attorney’s fees to include an award of appellate attorney’s fees does not apply in this case.
My concern is that section 61.16, Florida Statutes (2008), would allow for an award of fees in this type of custody dispute if the child were legitimate. Statutes that do not provide rights and remedies to illegitimate children and their parents that are comparable to the rights and remedies given to legitimate children and their parents can violate Equal Protection. See Brown v. Dykes, 601 So.2d 568, 570 (Fla. 2d DCA 1992) (holding section 742.031 unconstitutional to the extent that it prohibited attorney’s fees to a father in a paternity action). Under any level of scrutiny, it is not obvious to me that parents of illegitimate children should be treated differently than parents of legitimate children when it comes to the rules for awarding attorney’s fees on appeal in custody disputes.
The parties have not briefed the constitutional issue, and I conclude that attorney’s fees would be inappropriate under the circumstances of this case even if section 61.16 were the applicable law. Accordingly, I join in the order denying fees.
ALTENBERND, Judge,
Concurring.
I fully concur in this decision that affirms a final judgment of paternity in an action filed by the father, A.J.K. The primary issue in this ease concerns child custody. I write only to explain that my vote to deny attorney’s fees to the father is not based on the reasoning in Starkey v. Linn, 727 So. 2d 386 (Fla. 5th DCA 1999), and Gilbertson v. Boggs, 743 So. 2d 123 (Fla. 4th DCA 1999). Both of those cases hold that attorney’s fees cannot be awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly authorize fees on appeal.
It is true that both section 742.045 and section 742.031 authorize an award of attorney’s fees in paternity actions but make no reference to fees for an appeal. Neither statute limits attorney’s fees to a prevailing party and, thus, the provision in section 59.46, Florida Statutes (2008), interpreting statutes that award prevailing party attorney’s fees to include an award of appellate attorney’s fees does not apply in this case.
My concern is that section 61.16, Florida Statutes (2008), would allow for an award of fees in this type of custody dispute if the child were legitimate. Statutes that do not provide rights and remedies to illegitimate children and their parents that are comparable to the rights and remedies given to legitimate children and their parents can violate Equal Protection. See Brown v. Dykes, 601 So. 2d 568, 570 (Fla. 2d DCA 1992) (holding section 742.031 unconstitutional to the extent that it prohibited attorney’s fees to a father in a paternity action). Under any level of scrutiny, it is not obvious to me that parents of illegitimate children should be treated differently than parents of legitimate children when it comes to the rules for awarding attorney’s fees on appeal in custody disputes.
The parties have not briefed the constitutional issue, and I conclude that attorney’s fees would be inappropriate under the circumstances of this case even if section 61.16 were the applicable law. Accordingly, I join in the order denying fees.
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B.K. v. S.D.C., 122 So. 3d 980 (Fla. 2d DCA 2013)…parent to us that this same case law, for the sake of consistency and logic, should be applied to allow appellate fees under section 742.045, and we now so hold. Not to do so would likely run afoul of equal protection concerns. See M.J.I. v. A.J.K., 55 So. 3d 732, 733 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) (“Under any level of scrutiny, it is not obvious to me that parents of illegitimate children should be treated differently than parents of legitimate children when it comes to the rules for awardi…
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Nishman v. Stein (Fla. 2d DCA 2020)…caselaw regarding the support of minor children were revised to be gender neutral. See Lashkajani, 911 So. 2d at 1157 n.2. 4 See Rogers v. Wiggins, 198 So. 3d 1119, 1121 n.1 (Fla. 2d DCA 2016); B.K. v. S.D.C., 122 So. 3d at 982; M.J.I. v. A.J.K., 55 So. 3d 732, 733 (Fla. 2d DCA 2011). 5 Dep't of Health & Rehab. Servs. v. Privette, 617 So. 2d 305, 307 (Fla. 1993) (citing Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972)). - 8 - action, the subject waiver did not accomplish this. Subparagraph "E"—"Settlement of P…
Authorities Cited
- Gilbertson v. Boggs, 743 So. 2d 123 (Fla. 4th DCA 1999)
- Starkey v. Linn, 727 So. 2d 386 (Fla. 5th DCA 1999)
- Brown v. Dykes, 601 So. 2d 568 (Fla. 2d DCA 1992)