Department of Revenue Ex Rel. Tisdale v. Jackson , 2017 Fla. App. LEXIS 5104 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DEPARTMENT OF REVENUE
O/B/O WILLETTE TISDALE,
Appellant,
v. Case No. 5D16-2750
OTHA L. JACKSON,
Appellee.
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Opinion filed April 13, 2017
Appeal from the Circuit Court
for Orange County,
Mike Murphy, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Toni C. Bernstein, Senior
Assistant Attorney General, Tallahassee,
for Appellant.
No Appearance for Appellee.
EDWARDS, J.
The Department of Revenue (“DOR”), on behalf of Willette Tisdale (“Tisdale”),
appeals the trial court’s order dismissing its petition that sought to extend child support
payments being made by Otha Jackson (“Jackson”) beyond the dependent child’s
eighteenth birthday. The hearing officer determined that DOR lacked standing to seek
this relief because the petition was not filed until after the child’s eighteenth birthday; the
trial court adopted the reasoning and dismissed the petition for lack of subject matter
jurisdiction. We reverse and remand for further proceedings for the reasons set forth
below.
In 1999, the trial court adjudicated Jackson to be the legal father of the child born
to Tisdale and ordered Jackson to pay child support. The undisputed evidence presented
to the hearing officer and trial court was that: (i) the child turned eighteen on December
17, 2015; (ii) he was still living with Tisdale; (iii) he was financially dependent on his
parents; (iv) he was still enrolled in high school; (v) he was a successful student; and (vi)
he was on track to graduate in June 2016, before his nineteenth birthday. DOR filed its
petition for modification on January 6, 2016, seeking to extend the previously ordered
child support until the child graduated from high school. Jackson objected at the hearing
on the petition, arguing that his obligation for child support ended on December 17, 2015.
Section 61.13(1)(a)1.a., Florida Statutes (2016), provides that child support
terminates “on a child’s [eighteenth] birthday unless the court finds or previously found
that [section] 743.07(2) applies, or is otherwise agreed to by the parties.” §
61.13(1)(a)1.a., Fla. Stat. (2015); see also § 61.14(9), Fla. Stat. (2016) (“Unless otherwise
ordered by the court or agreed to by the parties, the obligation to pay the current child
support for that child is terminated when the child reaches 18 years of age or the disability
of nonage is removed.”). Section 743.07(2), Florida Statutes (2016), provides:
This section shall not prohibit any court of competent
jurisdiction from requiring support for a dependent person
beyond the age of [eighteen] years when such dependency is
because of a mental or physical incapacity which began prior
to such person reaching majority or if the person is dependent
in fact, is between the ages of [eighteen] and [nineteen], and
is still in high school, performing in good faith with a
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reasonable expectation of graduation before the age of
[nineteen].
§ 743.07(2), Fla. Stat. (2016).
A parent, or, as in this case DOR,1 has standing to file for modification of the child
support obligation to extend it beyond the child’s eighteenth birthday, based on the high
school provision of section 743.07(2), even though the dependent child turned eighteen
before the petition for modification was filed. See Fla. Dep’t of Rev. ex rel. Hobbs v.
Lockmiller, 791 So. 2d 552, 553 (Fla. 2d DCA 2001) (finding that DOR had standing to
file petition for continuing support for a dependent child pursuant to the high school
provision section 743.07(2) although petition filed four months after the child turned
eighteen); see also Bloom v. Panchyshyn, 200 So. 3d 272, 273 (Fla. 1st DCA 2016)
(describing the argument that parent lacked standing to seek extended child support
under high school provision because petition was filed two weeks after child turned
eighteen as “meritless”); Campagna v. Cope, 971 So. 2d 243, 249 (Fla. 2d DCA 2008)
(permitting parent to seek retroactive child support by petition filed after the dependent
child turned eighteen pursuant to the high school provision of section 743.07(2));
Henderson v. Henderson, 882 So. 2d 499, 499-500 (Fla. 1st DCA 2004) (same).
The hearing officer’s and trial court’s reliance upon Larwa v. Department of
Revenue ex rel. Roush, 169 So. 3d 1285, 1285 (Fla. 5th DCA 2015), is misplaced
because the extension of child support in that case was “based not on the son’s [high]
school attendance, but on his mental incapacity.” On rehearing, this court held that under
those circumstances, an independent action must be brought by the emancipated, but
1 DOR serves as Florida’s child support enforcement agency pursuant to Title IV-
D of the Social Security Act.
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dependent, child rather than by a parent seeking modification of child support. Roush,
169 So. 3d at 1285.
For the reasons discussed above, it is clear that DOR had standing and the circuit
court had subject matter jurisdiction regarding DOR’s petition to extend Jackson’s child
support obligations based upon the undisputed facts that the child was eighteen, in high
school, performing in good faith, with reasonable expectation of graduation before the
age of nineteen. See § 743.07(2), Fla. Stat. (2016). Accordingly, we reverse and remand
for the trial court to reconsider DOR’s petition to extend Jackson’s obligation for child
support for the period of time between the child’s eighteenth birthday and his graduation
from high school, which according to the record before this court, occurred in May 2016.
On remand, the circuit court shall also entertain any appropriate petitions DOR has filed
or may file for child support arrearages.
REVERSED and REMANDED.
PALMER, J., and JACOBUS, B.W., Senior Judge, concur.
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