MILTON BIRGE, APPELLANT,
v.
CAROLYN V. BIRGE SIMPSON, APPELLEE
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In this child support modification case, the Florida District Court of Appeal reversed the trial court's exclusion of evidence regarding the mother's new husband's income, holding that such income is material and relevant to determining the mother's ability to contribute to child support for their minor children.
The court held that while stepfathers have no legal duty to support stepchildren, the income and financial circumstances of a divorced mother's new husband are material and relevant to determining her ability to contribute to child support, particularly given the 1971 statutory amendment imposing equal support obligations on both parents.
[1] A trial court must consider the income of a divorced mother's new husband when determining child support obligations, as his financial circumstances are relevant to the m…
[2] The duty to support minor children can be imposed equally upon both parents, regardless of gender.
Previewing 2 of 5 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“the court may at any time order either or both parents owing a duty of support to a child of the marriage to pay such support as from the circumstances of the parties and the nature of the case is equitable.”
Establishes the 1971 statutory mandate placing equal support obligations on both divorced parents
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced in 1969 with the father earning $740/month (Air Force staff sergeant) and the mother earning $6,500 annually. The trial cour…
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By this appeal, appellant-father challenges the denial by the trial court of his petition for modification of child support payments for his two minor children. The justiciable point on appeal is: “That the Court erred in not allowing appellant’s attorney to make inquiry into the income of appellee’s husband.”
The parties were divorced on April 21, 1969. At that time, the father was a staff sergeant in the United States Air Force and earned a gross monthly salary of $740.00; the mother earned an annual salary of $6,500.00 in her employment. The trial court ordered the father to pay $52.50 per month per child for their support once he had terminated his military service.
On May 15, 1972, the father filed the instant petition to modify the existing child support order alleging therein that he was making less money than he was making at the time same was entered on April 29, 1969. At an evidentiary hearing, the father asserted that since the entry of the initial support order he had been severed from the Air Force, remarried, and his *483present combined income from working as a soft-drink truck driver and Air Force retirement was approximately $560.00 per month. The father’s testimony established that since the entry of the support order he sought to modify, his monthly income had decreased by $190.00. He further proffered for the court’s consideration an adverse current financial picture.
As to the mother’s ability to contribute to the support of the minor children the father proved that she had remarried and was individually earning an annual salary of $6,900.00, representing a small increase in her earnings subsequent to the entry of the instant support order. It was at this stage of the proceedings that the father sought to elicit from the mother the income of her present husband. The trial judge, in sustaining a timely objection, made the following observation:
“The Court doesn’t feel that would be material as to what her [the mother’s] new husband’s income is. It’s the responsibility of the natural parents to support their children. What is your theory on it ?”
The father’s attorney responded, viz: “His ability to support her, which is his obligation, would affect her ability to support the children, your Honor.” The trial court sustained the objection; hence this appeal.
At the time the initial support order was entered in 1969, the legislative and judicial pronouncements placed the primary burden of the support of minor children upon the father.1 In a sweeping reformation of the laws pertaining to severance of marriages, the legislature in 19712 specifically provided:
“ . . . the court may at any time order either or both parents owing a duty of support to a child of the marriage to pay such support as from the circumstances of the parties and the nature of the case is equitable.”
We construe this mandate of the legislature as placing upon the divorced wife an equal duty of contributing to the support of the parties’ minor children.
This brings us to the materiality of the income of a divorced mother’s new husband. Even in this era of women’s liberation and enlightened thinking,3 it is still the law of this State that a husband has the duty of supporting his wife.4 Although no legal duty is imposed upon a stepfather to support his stepchildren, the income he receives and his financial circumstances are necessarily material and relevant to the wife’s ability to contribute to the support of her children. Such evidence is essential for the trial court to determine the ability of either or both parents “ . . .to pay such support as the circumstances of the parties and the nature of the case is equitable.”
The order- appealed is reversed with directions to grant appellant a new hearing not inconsistent herewith.
WIGGINTON and CARROLL, DONALD K., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Variety Child's. Hosp., Inc. v. Vigliotti, 385 So. 2d 1052 (Fla. 3d DCA 1980)…Gates v. Foley, 247 So. 2d 40, 44 (Fla.1971). This trend was embodied in a sweeping reformation of the law which now places the mother and father on an equal footing in relation to their obligations to support their minor children. Birge v. Simpson, 280 So. 2d 482 (Fla. 1st DCA 1973); § 61.001, et seq., Fla.Stat. (1971). As stated in Kern v. Kern, 360 So. 2d 482, 484 (Fla. 4th DCA 1978): The duty to provide support for a minor child is based upon the child’s incapacity, both natural and legal, and its conseq…
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O'Brien v. O'Brien, 424 So. 2d 970 (Fla. 3d DCA 1983)…he wife did not relinquish her right to child support. A duty to support their minor children rests equally upon both parents, Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978); Condon v. Condon, 295 So. 2d 681 (Fla. 1st DCA 1974); Birge v. Simpson, 280 So. 2d 482 (Fla. 1st DCA 1973); § 61.13(1), Fla.Stat. (1979), although prior to the 1971 amendment to section 61.13, the obligation to support belonged to the father. See Issacs v. Deutsch, 80 So. 2d 657 (Fla.1955); Bezanilla v. Bezanilla, 65 So. 2d 754 (Fla.1…
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Siegel v. Zimmerman, 319 So. 2d 187 (Fla. 3d DCA 1975)…question upon this record, it is incumbent upon us to take into consideration Fla.Stat. § 61.13, which places “. . . upon the divorced wife an equal duty of contributing to the support of the parties’ minor children” (Birge v. Simpson, Fla.App.1973, 280 So. 2d 482). We hold that the record does show an abuse of discretion and, accordingly, we reverse the order denying relief and remand with directions. The appellant is Elaine Siegel. She is the mother of the two children for whom support was sought. She is n…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Solomon Pollack v. Pollack, 159 Fla. 224 (Fla. 1947)
- McRae v. McRae, 52 So. 2d 908 (Fla. 1951)
- Yordon v. Savage, 279 So. 2d 844 (Fla. 1973)
- State of Fla. Dep't OF Transp. v. Armer E. White, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Beard v. Beard, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Heckes v. Frieda C. Heckes, 129 Fla. 653 (Fla. 1937)