HARRY J. GERSTEN, APPELLANT,
v.
FLORENCE GERSTEN, APPELLEE

Fla. 3d DCA | 1973-08-28
No. 73-34
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
281 So. 2d 607 Florida District Court of Appeal, Third District (1973) Caution
Cited by 20 cases

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Synopsis

This case concerns the enforcement of a divorce judgment's provisions for child support and college expenses. The appellate court affirmed the obligation to pay college expenses but reversed the contempt finding for accrued payments after the child reached majority.


Holding

1. Yes, a father's agreement to pay college expenses as part of a property settlement can be enforced even after the child reaches majority. 2. No, a contempt order cannot be used to enforce accrued child support payments after the child has attained majority.


Headnotes

[1] A father's agreement to pay a child's college expenses, made as part of a property settlement agreement, may be enforced by appropriate methods.

[2] A contempt order may not be used to enforce the payment of accrued child support payments after a child has attained majority.

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Key Quotes

“We hold that where a father has agreed as a part of a property settlement agreement that he will pay the college expenses of a child, the agreement may be enforced by appropriate methods.”

Establishes the enforceability of college expense provisions.

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Facts & Procedural History

A final judgment of divorce ordered the father to pay weekly support and all reasonable college expenses for his son, Robert. The father failed to mak…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

A final judgment of-divorce was entered between the appellant and the appellee on April 28, 1969. A paragraph in the final judgment reads in part as follows:

“Defendant be and he is hereby ordered and directed to pay the sum of $50.00 per week for support and maintenance of the said ROBERT GERSTEN. Additionally, the Defendant has agreed to pay all medical and dental expenses of the child and to pay his college tuition, all reasonable clothing expenses, transportation, books, laboratory fees, and all other reasonable expenses in connection with college, with the exception of room and board, and Defendant, HARRY J. GER-STEN, shall pay all of the above.”

On December 6, 1972, upon the conceded failure of the appellant to make the payments as directed, the court, after a contempt hearing, made the following findings:

* * * * * *
“This court in its order of 29th September, 1969 ordered the said HARRY J. GERSTEN, pursuant to the agreement between the parties, to provide $300.00 as reasonable clothing expenses for ROBERT GERSTEN, in open court, and that the said payment shall continue each year at the beginning of the school year until said ROBERT GERSTEN has completed his college education.
“This Court finds that the following unreimbursed college expenses were incurred before the said ROBERT GER-STEN became 21 years of age:
$307.00 for summer semester at University of Miami
$1211.45 for fall semester at University of Miami
$110.00 for books
$5.00 for parking
the said expenses are valid expenses and shall be paid by HARRY J. GERSTEN.
“The $300.00 clothing allowance was to be paid before ROBERT GERSTEN reached 21 years of age as the school semester began before his 21st birthday.”
* * * * * *

Based upon these findings, the trial court ruled as follows :

“1. That the said HARRY J. GER-STEN is in contempt of this Court for his failure to abide by the Orders of the Court; however, he may purge himself of said contempt by paying forthwith all of the amounts set forth in this Order to be paid.
“2. That the Defendant, HARRY J. GERSTEN, shall pay within 20 days to the Plaintiff, FLORENCE GERSTEN, now known as FLORENCE STEIN-BERG, the following sums of money for the benefit of ROBERT GERSTEN, the son of the parties:
$307.00 for summer semester at University of Miami
$1211.45 for fall semester at University of Miami
*609$110.00 for books
$5.00 parking
Being a total of $1,633.45.”

In addition, the trial court ordered the following :

* * * * * *
“5. The defendant, HARRY J. GER-STEN, shall pay reasonable college expenses for ROBERT GERSTEN during the remainder of the present school year, which shall include the second semester 1972-1973.”
* * * * * *

On this appeal, the appellant has presented two points. The first point urges that the court lacks jurisdiction to enforce a provision of a judgment of divorce ordering a father to pay tuition and college expenses after his son has reached his majority. At oral argument, appellant conceded that this point did not present reversible error in view of this court’s holding in Vineberg v. Vineberg, Fla.App.1965, 177 So.2d 367. We hold that where a father has agreed as a part of a property settlement agreement that he will pay the college expenses of a child, the agreement may be enforced by appropriate methods.

The second point presented urges that after a child has attained his majority, a court may not use a contempt order as a method of enforcing the payment of accrued child support payments. The rule suggested by appellant’s second point has been recently approved by the District Court of Appeal, First District, in Wilkes v. Revels, Fla.App.1970, 245 So.2d 896. See Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933), where it is intimated that contempt proceedings are applicable to divorce judgments for child support because of public necessity; moreover, this case holds that if the necessity has been accomplished, even though by the mother’s sacrifice, she has only a debt remaining to her. Also see Dawson v. Dawson, 71 Wash.2d 66, 426 P.2d 614, 32 A.L.R.3d 885 (1967); Lowry v. Lowry, 189 Okl. 650, 118 P.2d 1015 (1941). We think that the rule stated is applicable to the case at bar, and that the order holding appellant in contempt must be reversed.

Of course, there is no question but that provisions in a final judgment for child support may be enforced by contempt prior to the time the child reaches majority. Also, it should be noted that there are other remedies available to enforce payment in cases involving child support.

Affirmed in part, reversed in part, and remanded.


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Citator

Cited By

  • Gibson v. Bennett, 561 So. 2d 565 (Fla. 1990)
    …rity. For this proposition Gibson relies on two cases, Smith v. Morgan, 379 So. 2d 1052 (Fla. 1st DCA 1980), and Wilkes v. Revels, 245 So. 2d 896 (Fla. 1st DCA 1970). See also Schwarz v. Waddell, 422 So. 2d 61 (Fla. 3d DCA 1982); Gersten v. Gersten, 281 So. 2d 607 (Fla. 3d DCA 1973). In both first district cases, the court held that the trial court was without jurisdiction to enforce payment of support arrearages by contempt proceedings after a minor child has attained the age of majority.5 The district court…
  • Chapman v. Lamm, 388 So. 2d 1048 (Fla. 3d DCA 1980)
    …mony or child support is based upon the fact that such obligations arise out of the duty owed and that, in accordance with public necessity, dependents must be supported. See Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976); and Gersten v. Gersten, 281 So. 2d 607 (Fla.3d DCA 1973). When the obligation has been converted into a debt to a third person, it no longer carries the public necessity for enforcement by imprisonment. See Corbin v. Etheridge, 296 So. 2d 59 (Fla.lst DCA 1974); and State ex rel. Gillham…
  • Riera v. Riera, 86 So. 3d 1163 (Fla. 3d DCA 2012)
    …mply with a contractual obligation to pay college expenses. See Nicoletti v. Nicoletti, 901 So. 2d 290, 292 (Fla. 2d DCA 2005) (“A contractual duty to pay for a child’s college expenses cannot be enforced by contempt.”); see also Gersten v. Gersten, 281 So. 2d 607, 609 (Fla. 3d DCA 1973). However, I would affirm the decision of the [*1169] trial court that the former husband is required to pay his aliquot share of his son’s expenses to attend George Washington University. The former husband contends the agre…

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