NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JORGE LOZA, )
)
Appellant, )
)
v. ) Case No. 2D15-3235
)
GEORGINA MARIN, )
)
Appellee. )
)
Opinion filed August 12, 2016.
Appeal from the Circuit Court for Polk
County; Andrea Teves Smith, Judge.
Javier D. Alvarez, Kissimmee, for Appellant.
Jean Marie Henne of Jean M. Henne, P.A.,
Winter Haven, for Appellee.
BADALAMENTI, Judge.
This is an appeal from a final judgment denying the petition of Jorge Loza
(Husband) to modify child support and granting the counter-petition of Georgina Marin
(Wife) to modify child support. The dispositive issue on appeal is whether the trial court
had subject matter jurisdiction to modify Husband's child support obligation pursuant to
section 743.07, Florida Statutes (2013), where Wife's counter-petition for modification of
child support was filed after the dependent child reached the age of majority. We hold
that Wife's counter-petition for modification of child support was untimely. The trial court
lacked jurisdiction to extend Husband's child support obligation beyond the dependent
child's eighteenth birthday. We therefore reverse the trial court's modification order and
remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL BACKGROUND
Husband and Wife married and subsequently had two children: an older
son and a younger daughter. On May 19, 2009, when the son was approximately
fifteen years old, he suffered a head injury during exercises for the Junior Reserve
Officers' Training Corps (JROTC) in his high school. Approximately three months after
the injury, the son suffered his first epileptic seizure, apparently caused by a
"calcification" in the frontal lobe of his brain. He was prescribed medication to help
control any future seizures.
Approximately one year after the son's head injury, Wife filed a petition for
dissolution of marriage. In Section IV of her petition, Wife requested that the trial court
award her child support, to be paid beyond the son's eighteenth birthday "[b]ecause he
has epilepsy, seizures and requires medication." On October 15, 2010, the dissolution
court issued a final judgment of dissolution. This judgment incorporated by reference a
Mediated Settlement Agreement (MSA) between Husband and Wife. Paragraph 13 of
the MSA provides, "The husband shall pay guideline child support starting September
1st and there shall be no retroactive child support." In addition, a document entitled
"Schedule A" was attached to the judgment of dissolution. Schedule A obliges Husband
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to pay child support for his two children in the aggregate amount of $580 per month.1
The first paragraph of Schedule A provides, "Child Support payments shall continue
[until] the child becomes self-supporting, marries, dies, reaches the age of eighteen
(18), or if enrolled in high school and expected to graduate before the nineteenth (19)
birthday, then through the date of graduation or until further order of the Court." Neither
the MSA nor Schedule A mentioned the son's medical condition in any way.
Toward the end of the son's senior year of high school, he was admitted to
Tampa General Hospital for surgery to remove the "calcification" in his brain, which was
determined to be a benign tumor. Despite undergoing surgery to remove the tumor, the
son laudably graduated from high school in May 2012. On December 7, 2012, the son
turned eighteen years old.
Approximately five months after the son turned eighteen, Husband filed a
"Supplemental Petition for Modification," arguing that because the son graduated high
school and turned eighteen, Husband's obligation to pay child support for his son should
be terminated. On August 6, 2013, Wife filed a pro se response to Husband's petition in
the form of a letter. The letter explained that the son suffered a serious injury while in
high school and Husband's child support payments are crucial in paying for the son's
continuing treatment. Shortly after filing this pro se response, Wife rehired the counsel
who represented her during the initial marital dissolution.
The trial court construed Wife's pro se letter as a counter-petition to
extend child support due to the son's mental or physical incapacitation pursuant to
1Schedule A does not parcel out the child support amounts owed for each
of the two children. Instead, it merely orders the payment of the aggregate monthly sum
of $580 per month.
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section 743.07. Husband thereafter filed a motion to dismiss Wife's counter-petition for
modification, arguing that Wife's counter-petition was untimely because the son had
already graduated from high school and turned eighteen. Therefore, Husband argued
that the trial court had no jurisdiction to modify his child support obligation to his son
because that obligation had already lapsed.
The trial court issued an order denying Husband's motion to dismiss. The
order was grounded in the trial court's understanding that it retained continuing
jurisdiction to modify the child support obligation, based on the phrase "until further
order of the Court" contained in Schedule A, as well as the statutory language
concerning continuing jurisdiction in section 61.13(1)(a)(2), Florida Statutes (2010).
Husband moved for the trial court to reconsider its denial of his motion to
dismiss. Husband argued that continuing jurisdiction to modify an order is irrelevant
when the order has already lapsed. In other words, he contended that Schedule A and
section 61.13(1)(a)(2) allowed the trial court to extend a child support obligation only
while the obligation was still in force pursuant to the underlying child support order.
And, because Husband's obligation to pay child support for his son ceased when the
son graduated from high school and turned eighteen, the trial court's jurisdiction to
extend that obligation also ended.
The trial court heard testimony and argument as to Wife's petition to
modify and Husband's motion for reconsideration. During the hearing, Wife testified that
the tumor which was removed from the son's brain in 2012 regrew and became
cancerous in 2014. The reappearance of the tumor required the son to undergo
additional surgery in May 2014, followed by a course of chemotherapy. Wife testified
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that, as of the time of the hearing, the son was unable to maintain a full workload at his
community college because chemotherapy exhausted him. Wife further testified that
the son is unable to drive due to trembling in his left hand (caused by his brain
problems) as well as his continued risk of seizures, even though he was licensed to
drive. Wife also testified that the son is unable to hold a job. However, Wife
acknowledged that chemotherapy and medication had mitigated the frequency of the
son's seizures to approximately two per year and that he had not suffered a seizure
since his second surgery in May 2014.
Husband testified that he was aware of the son suffering a head injury
prior to the divorce. However, Husband denied that the son was "disabled" at the time
of his injury, or indeed that the son had ever been "disabled." Husband testified that he
did not help Wife pay any of the son's medical bills, even before the son's eighteenth
birthday, and admitted that he did not have a good understanding of his son's medical
condition.
The trial court subsequently denied Husband's motion for reconsideration
and issued a final judgment denying Husband's supplemental petition and granting
Wife's counter-petition. The text of the final judgment quotes the first paragraph of
Schedule A, but with the following bolded emphasis: "Child Support payments shall
continue [until] the child becomes self-supporting, marries, dies, reaches the age of
eighteen (18), or if enrolled in high school and expected to graduate before the
nineteenth (19) birthday, then through the date of graduation or until further order of
the Court." Paragraph six of the final judgment highlights that, although the son
suffered his initial injury prior to the marital dissolution, the "extent of [the son's] medical
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problems were not known until on or about February 28, 2012." The final judgment
orders Husband to continue paying child support for his son until further order of the
court, and to split the medical expenses of his minor children with Wife on a pro rata
basis. Husband now appeals, arguing that the trial court did not have jurisdiction to
extend child support beyond the age of majority. We agree and reverse.
II. ANALYSIS
A. The Textual Framework of Sections 61.13(1)(a) and 743.07
Section 61.13(1)(a)(1)(a) states that "[a]ll child support orders entered on
or after October 1, 2010, must provide . . . for child support to terminate on a child's
eighteenth birthday, unless the court finds or previously found that s. 743.07(2) applies,
or is otherwise agreed to by the parties." In similar fashion, section 61.13(1)(a)(2)
provides:
The court initially entering an order requiring one or both
parents to make child support payments has continuing
jurisdiction after the entry of the initial order to modify the
amount and terms and conditions of the child support
payments if the modification is found by the court to be in the
best interests of the child; when the child reaches majority; if
there is a substantial change in the circumstances of the
parties; if s. 743.07(2) applies; or when a child is
emancipated, marries, joins the armed services, or dies. The
court initially entering a child support order has continuing
jurisdiction to require the obligee to report to the court on
terms prescribed by the court regarding the disposition of the
child support payments.
(Emphasis added.) Finally, section 743.07 reads, in pertinent part:
(1) The disability of nonage is hereby removed for all
persons in this state who are 18 years of age or older, and
they shall enjoy and suffer the rights, privileges, and
obligations of all persons 21 years of age or older . . . .
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(2) This section shall not prohibit any court of competent
jurisdiction from requiring support for a dependent person
beyond the age of 18 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 18 and 19, and is
still in high school, performing in good faith with a
reasonable expectation of graduation before the age of 19.
Working in concert, these statutes provide clear directives for the
termination and modification of support orders. Child support orders are required pro
forma to terminate upon a child reaching majority, unless section 743.07(2) applies or
the parties agree otherwise. § 61.13(1)(a)(1)(a). While a child support order is in force,
a court has continuing jurisdiction to modify the order under a variety of circumstances.
§ 61.13(1)(a)(2). Although "[t]he disability of nonage" disappears for all Floridians who
are eighteen years or older, a trial court may still modify an operative child support order
to require support "beyond the age of 18 years" for a dependent person if: (1) the
dependency is due to mental or physical incapacity which began prior to the person
reaching majority; or (2) "the person is dependent in fact, is between the ages of 18 and
19, has not graduated high school, and is expected to graduate some time "before the
age of 19." § 743.07(1)-(2).
B. The Presumption of Independence Upon Reaching the Age of Majority
"As a general rule, the legal duty of a parent to support his child ceases at
the age of majority." Willens v. Garcia,
53 So. 3d 1113, 1116 (Fla. 3d DCA 2011) (citing
Kern v. Kern,
360 So. 2d 482, 484 (Fla. 4th DCA 1978)); see also Perla v. Perla,
58 So.
2d 689, 690 (Fla. 1952). This rule does not conflict with the previously discussed
statutory authority. In fact, it is contemplated by the plain language of section
743.07(1), which merely lowered the age of majority from twenty-one to eighteen. See
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Finn v. Finn,
312 So. 2d 726, 727-28 (Fla. 1975); see also Hastings v. Hastings,
841
So. 2d 484, 485 (Fla. 3d DCA 2003) (explaining that the legislature did not seek to
create a new right with section 743.07(1), but rather to save a preexisting common law
right).
The concept of continuing jurisdiction also abides by this rule. A court
possesses continuing jurisdiction to modify a support award, but only during the period
provided for support. See Mouton v. Mouton,
590 So. 2d 40, 41 (Fla. 2d DCA 1991) (en
banc) (demonstrating this principle in the context of an alimony award); Kelsey v.
Kelsey,
636 So. 2d 77, 78 (Fla. 4th DCA 1994) (en banc) (same). Unless otherwise
agreed to by the parties, or unless section 743.07(2) applies, the period for providing
support to a dependent child continues only until the child reaches the age of majority.
§ 61.13(1)(a)(1)(a). Accordingly, a "final judgment's silence on the continuing obligation
of support after the child's eighteenth birthday results in the Former Husband's [support]
obligation . . . also terminating upon the child's eighteenth birthday." Phillips v. Phillips,
83 So. 3d 903, 905 (Fla. 2d DCA 2012) (citing Taylor v. Bonsall,
875 So. 2d 705, 709
(Fla. 5th DCA 2004)).
C. The Jurisdictional Limits of Section 743.02(2)
Florida courts have long grappled with whether or not a petition under
section 743.07(2) may be used to extend support for an incapacitated child beyond the
age of majority even if the petition has been filed after the support obligation has
terminated. In Brown v. Brown,
714 So. 2d 475, 476 (Fla. 5th DCA 1998), a husband
and wife divorced and entered into a settlement agreement. The settlement agreement
provided that the husband would pay the wife child support for their only daughter until
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the daughter married, reached the age of twenty-one, or became self-sufficient.
Id. In
1995, when the daughter was twenty-six years old, the wife petitioned to extend child
support because the daughter was "diagnosed with cerebral palsy and mental
retardation" prior to the final judgment of divorce.
Id. The trial court dismissed the
petition, holding that it did not have jurisdiction because the child had already reached
the age of twenty-one several years earlier.
Id. at 476-77. The Fifth District affirmed,
reasoning that the husband's obligation had expired and that an independent action
must be brought by the adult dependent child pursuant to Florida Rule of Civil
Procedure 1.210(b).
Id. at 477.
In Ruiz v. Ruiz,
783 So. 2d 361, 362 (Fla. 5th DCA 2001), the husband
and wife entered into a dissolution agreement which recognized that one of their
daughters "is a handicapped child and is totally non-communicative." Husband was
required to pay $1248 for the affected daughter's support.
Id. However, the final
judgment of dissolution did not mention postmajority child support.
Id. Before the
affected daughter reached the age of majority, the husband petitioned to modify his
support obligation, but the trial court's order granting the husband's petition was not
entered until the daughter was older than eighteen.
Id. The wife appealed, relying on
the Fifth District's previous decision in Brown. Ruiz, 783 So. 2d at 362. However, the
Fifth District held that it was proper to allow for extension of child support, where: (1) the
husband petitioned for such modification before the child reached majority, but the order
was not rendered until after; and (2) the marital settlement agreement expressly
recognized that the child was handicapped, which "effectively adjudicated" the issue.
Id. at 362-63.
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In Taylor, a husband and wife executed a dissolution agreement which
specifically recognized that the husband's child support obligation would terminate "as
each child attains the age of eighteen (18), marries, becomes self-supporting, enters the
military service or departs this life, whichever event shall occur first."
875 So. 2d at 706.
Prior to the dissolution, one of the couple's daughters had suffered "irreversible
impairment of her brain function."
Id. Some years later, husband and wife added a
stipulation to their settlement agreement, which reiterated that the husband's child
support obligation will terminate upon the children's eighteenth birthday, unless wife is
able to "obtain an order of the court prior to those dates [the children's eighteenth
birthdays] to extend the child support obligation."
Id. Before the affected daughter
turned eighteen, the wife petitioned to extend child support but the order was not
rendered until nearly a year after the daughter had turned eighteen.
Id. at 707. The trial
court, relying on Ruiz, ruled that the couple's stipulation did not preclude an extension of
child support. Taylor, 875 So. 2d. at 706. On appeal, the Fifth District reversed. Even
though the wife in Taylor had filed a petition for modification prior to the child turning
eighteen, the Fifth District stated that this was irrelevant because: (1) the portion of the
Ruiz opinion stating that untimely modification orders related back to otherwise timely
petitions was dicta; and (2) the dispositive factor in Ruiz was that the child had been
"effectively adjudicated dependent" prior to reaching majority. Taylor, 875 So. 2d. at
709 & n.3 (emphasis added). In other words, according to the Taylor court, the crucial
issue is whether a child's continuing dependence after majority was adjudicated before
the child reached the age of majority.
D. Subject Matter Jurisdiction in the Present Case
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Here, Wife did not file a petition to modify child support for the son
pursuant to section 743.07(2) until her letter of August 6, 2013. This means that Wife's
petition was filed approximately seven months after the son turned eighteen. Using the
trial court's charitable timeline, the "full extent" of the son's medical problems was not
known until February 28, 2012. But the relevant date is not February 28, 2012—the
relevant date is December 7, 2012, when the son reached the age of eighteen. Prior to
that date, there was no "effective adjudication" of the son's continuing incapacity in any
order awarding child support. There was no mention of the son's incapacitation in the
MSA, even though he had already sustained a head injury prior to Wife's petition for
dissolution.
Furthermore, Schedule A explicitly provided that the son's child support
would terminate when he turned eighteen. And even if Schedule A had not so provided,
we would be compelled by both common law and legislative directive to conclude that
the child support award terminated upon the son reaching majority anyway. See §
61.13(1)(a)(1)(a); Willens,
53 So. 3d at 1116 (citing Kern,
360 So. 2d at 484).2
Accordingly, we hold the trial court did not have subject matter jurisdiction to modify the
child support relating to the son, and reverse the order of the trial court. See Larwa v.
Dep't of Revenue ex rel. Roush,
169 So. 3d 1285, 1285 (Fla. 5th DCA 2015) (per
2Section 743.07(2) contains another provision, which allows for a court to
extend a support obligation beyond majority where a child is "dependent in fact, is
between the ages of 18 and 19, and is still in high school, performing in good faith with
a reasonable expectation of graduation before the age of 19." Here, because the son
graduated from high school prior to his eighteenth birthday, this provision does not
apply. See, e.g., D.J.S. v. W.R.R.,
99 So. 3d 991, 993 (Fla. 2d DCA 2012) (holding that
trial court had jurisdiction to consider mother's supplemental petition seeking
modification of child support filed when the child was "eighteen years old and in high
school with a reasonable expectation of graduating before his nineteenth birthday").
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curiam); cf. Gamache v. Gamache,
14 So. 3d 1236, 1238 (Fla. 2d DCA 2009) (holding
that a trial court lacked subject matter jurisdiction over child custody issues, where the
adult dependent child was over eighteen years of age and had never been declared
incapacitated or incompetent).3
III. CONCLUSION
The trial court did not have jurisdiction to modify Husband's child support
obligation to his son after the son reached the age of majority. Accordingly, we reverse
the trial court's final judgment as to Husband's petition to modify child support and
Wife's counter-petition as to same. Upon remand, the trial court shall recalculate
Husband's child support responsibility relating to Husband and Wife's daughter.
LaROSE and KHOUZAM, JJ., concur.
3The son, however, is not without potential relief to seek financial support
from his father. Although the trial court had no jurisdiction to modify the previous award
of child support for the son, the son's right to parental support cannot be destroyed so
easily. "The rights of support and meaningful relationship belong to the child, not the
parent; therefore, neither parent can bargain away those rights." Budnick v. Silverman,
805 So. 2d 1112, 1113 (Fla. 4th DCA 2002). The son may be able to bring an
independent action for financial support against his parents. See Phillips,
83 So. 3d at
905 n.1 (citing Hastings,
841 So. 2d at 486); Brown,
714 So. 2d at 477.
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