In a recent opinion, the First District Court of Appeal overturned a trial court order that upwardly modified child support payments because, in calculating the modification, the trial court improperly considered as income state adoption assistance payments received by the mother. Nabinger v Nabinger, 37 Fla. L. Weekly D61, Case No. 1D11-2616 (Fla. 1st DCA December 30, 2011). In an apparent case of first impression in Florida, the First District determined that including adoption financial assistance received from the State of Florida as income for purposes of calculating child support is contrary to public policy.
To facilitate and encourage the adoption of special needs children, the State of Florida makes financial assistance, including financial aid, available to difficult-to-place special needs children in state foster care system. Under § 409.166, Florida Statutes, the Florida Department of Children and Family Services is authorized to provide adoption assistance, including a maintenance subsidy, medical assistance, Medicaid assistance, adoption expense reimbursement, and tuition exemption for postsecondary education. Under § 409.166(4)(b), adoption assistance includes support and maintenance payments of $5,000 per year, or other amount set by agreement of the Department and adoptive parents, until the child reaches 18 years of age.
In the Nabinger case, the parties adopted a child from the foster care system, and later divorced. In the final judgment of dissolution of marriage, the father was ordered to pay $800 per month in child support, and the mother was awarded the adoption subsidy. The mother later petitioned for an upward modification based upon the father’s increased income and his decreased parental involvement. The trial court granted the upward modification, but in arriving at the guideline amount set by § 61.30, Florida Statutes, allowed a credit for the mother’s adoption subsidy against the father’s child support obligation. The First District found this to be clearly erroneous, and reversed the trial court’s order.
In addition to the fact that neither party had requested that the adoption subsidy be considered in re-calculating child support, the appellate court found that the trial court’s application of the credit violated public policy. Citing Interest of T.S., 511 So.2d 435 (Fla. 2d DCA 1987), the court acknowledged that “‘no provision of section 409.166 absolves adoptive parents of the financial responsibility incurred in the care of special needs children.” The court found guidance from Arizona and Colorado case law in reaching its holding that state-funded adoption incentives are supplemental to, and not a substitute for a parent’s obligation of financial support. See Hamblen v. Hamblen, 54 P.3d 371 (Ariz. Ct. App. 2002); In re Marriage of Bolding-Roberts, 113 P.3d 1265 (Colo. App. 2005).