Friday, March 7, 2014

Can a Florida Court Extend Child Support Beyond Age 18?

The duty to provide support for a minor child is based upon the child's incapacity, both natural and legal, and the child's need of protection and care.  See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).

Court have recognized that a parent's legal duty to support his children ordinarily ceases at the age of majority.  Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).  A parent, however, owes a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.  See Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978).

In 1973, the Florida legislature lowered the age of majority from 21 to 18.   See Fla. Stat. § 743.07.    More recently, the Florida child support statute was modified to require all family law judgments awarding child support to include the following provisions:
  1. That the child support for each child will terminate on the child’s 18th birthday unless the court finds that section 743.07(2) applies, or is otherwise agreed to by the parties; 
  2. A schedule stating the amount of the monthly child support obligation for all the minor children and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to support; and 
  3. The date that the reduction or termination of child support becomes effective. 
See Fla. Stat. § 61.13(1)(a).

In other words, section 61.13, Florida Statutes, requires that a payor's child support obligation automatically adjusts downward as each child reaches his or her 18th birthday.

The Florida legislature has also codified when a support obligation may be extended beyond 18 years of age. Specifically, section 743.07, Florida Statutes, states that child support may be extended beyond age 18 in two situations: (a) where a child is dependent due to mental or physical incapacity that began prior to age 18; and (b) where a child has reached the age of majority, is living at home, attending high school, and reasonably expects to graduate high school before age 19.  This language was added to the statute effective October 1, 1988.  See Penton v. Penton, 564 So. 2d 1114, 1115 (Fla. 1st DCA 1990).  Courts have recognized that these two situations are separate bases to extend child support beyond age 18.  See Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

The difficult question is under what circumstances might a mental or physical incapacity justify an extension of child support?  The statutory uses the word "dependent."  Obviously, the word dependent suggests that a parent will not owe support if the child is out working and self-supporting.  The answer is less clear where a child is moderately incapacitated and living at home.  A troubling example might be a child living at home and suffering from a mild physical disability or a moderate psychological disorder.   In Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978), Florida Fourth District Court of Appeal held that a dependent child must suffer from a "severe physical or mental incapacity."

Decisions subsequent to Kern that discuss whether an adult child is "dependent" within the meaning of section 743.07, Florida Statutes, have not used the words "suffering" or "severe" when describing the child's mental or physical incapacity.  See, e.g., Carres v. Good-Earnest, 838 So. 2d 577 (Fla. 4th DCA 2002)Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

In Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990), the court awarded child support beyond the age of majority due to the child's mental and emotional condition.  In Penton, the parties' son was a sophomore in high school at the time of the divorce. The first district concluded that the son suffered "psychological infirmities" due to the stress stemming from the divorce and was being treated by a mental health professional. The child's emotional condition constituted a dependency, which, when coupled with his economic incapacity, was sufficient to require support beyond the age of majority.

In Pitts v. Pitts, 566 So. 2d 12, 13 (Fla. 2d DCA 1990), the parties' child suffered from learning disabilities, which required him to devote most of his time to his studies.  The court found that the child could not work to support himself while he was in school due to his learning disability.  This decision is noteworthy because the child's disability appeared relatively modest.

Regardless of whether the physical or mental incapacity is "severe," under section 743.07, Florida Statutes, the incapacity must result in the child's "dependency."  Some practitioners and judges may equate "dependency" with "disability."  And, this would be a fair analogy given that the child must suffer from an incapacity that rises to the level of dependency.  Finally, the incapacity - whatever it might be - must have rendered the child dependent prior to his or her attaining the age of majority.  Any supplemental petition to extend child support must be filed before the support obligation terminates.