Support Appeal Reply for Child with Disabilities

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT

Case No.:  2D11-2862

    L.T. No.:  91-3036-CA

DEBORAH J. SPOOR and MAXWELL SPOOR

    Appellants,

v.

WILLIAM R. RATCLIFF
    
    Appellee.

_____________________________________________________________

APPELLANTS’ REPLY BRIEF

On Review from the Twentieth Judicial Circuit Court in and for Collier County, Florida
Case No. 91-3036-CA

_____________________________________________________________

NIKKI A. URI, LLC
FBN 0670367  
P.O. Box 770356
Naples, FL 34107
Office: 239.287.1753
Fax: 239.593.0437
Counsel for Appellants

TABLE OF CONTENTS

CITATIONS OF AUTHORITIES………………………………………..ii-ii

I.    ARGUMENT…………………………………………………………..1-5

    A.    The plain language of Section 743.07(2) requires that the                     “disability exist” prior to the child reaching the age of                     majority, not that the disability be judicially recognized                     prior to the child reaching the age of majority………………….1

    B    The issue with regard to propriety of an award of child
        support for an adult dependent child is dependency, not                     competency.  …………………………………………………………………..2

C.    It Is Impermissible Discrimination to Require an Adult
Dependent Child, Who Suffers from a Physical or Mental
Disability, to File an Independent Cause of Action for Child
Support, Where a Similarly Situated Adult Dependent Child
is not Subject to the Same  Requirement ……………………………..3  

    D.    MAXWELL SPOOR Will Suffer Extreme Legal Prejudice if                 this Case is Dismissed.……………………………………………..5  

II.    CONCLUSION………………………………………………………..6

III.    CERTIFICATE OF SERVICE……………………………………6

IV.    CERTIFICATE OF COMPLIANCE…………………………….7

CITATIONS OF AUTHORITIES
STATE CASES

CASE LAW

Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994)     1

Florida Dep’t of Environmental Protection v. Contractpoint Florida Parks, LLC., 986 So. 2d 1260, 1264 (Fla. 2008)    1, 2

Ruiz v. Ruiz, 783 So. 2d 361 (Fla. 5th DCA 2001)    2

Smith v. Smith, 495 So. 2d 886 (Fla. 2nd DCA 1986),     3

STATUTES AND CONSTITUTIONS

Fla. Stat. 743.07(2)    1

The United States Constitution, Fourteenth Amendment, Section. 1.    4

Fla. Const. Art. 1. Sec. 2 (2011)    4

The American Disabilities Act, Title II.    4

I.    ARGUMENT:
    A.    The plain language of Section 743.07(2) requires that the                 “disability exist” prior to the child reaching the age of                 majority, not that the disability be judicially recognized                 prior to the child reaching the age of majority.      

    Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994), held that Section 743.07(2) creates two separate situations upon which child support may be extended beyond the age of 18. First, where a child is dependent due to mental or physical incapacity that began prior to age 18 and second, where a child is, in fact, dependent but still in high school and attempting to graduate before age 19.  The Appellee is misconstruing the language of the statute, to require that a court be aware of the child’s disability, prior to the child reaching the age of majority.  The plain language of the statute requires that the “disability exist” prior to the child reaching the age of majority, not that the disability be judicially recognized prior to the child reaching the age of majority.  
    A statute must be given its plain and obvious meaning, if the language of the statute is clear and unambiguous and conveys a clear and definite meaning there is no need to resort to statutory construction.  Florida Dep’t of Environmental Protection v. Contractpoint Florida Parks, LLC., 986 So. 2d 1260, 1264 (Fla. 2008).  Legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.  When considered as a whole, with the express indication of the “evil to be corrected.”  Id. at 1266.  The relevant case law, with regard to the existence of a disability prior to the child reaching the age of majority is Ruiz v. Ruiz, 783 So. 2d 361 (Fla. 5th DCA 2001), a case in which the court never recognized the disability of the child, prior to the child’s reaching the age of majority, but found the child dependent in fact and awarded child support, even though the child did not bring an independent cause of action.  The evil sought to be corrected in this case is to protect an adult dependent child from wrongfully being deprived of necessary support, because of the selfishness of a parent that refuses to help a defenseless disabled child.  “A nations’s greatness is measured by how it treats its weakest members.”~ Mahatma Ghandi.
    In the instant case, it is undisputed that MAXWELL SPOOR suffers from Cystic Fibrosis, which is a genetic condition.  Genetic conditions are present at birth, and both parties became aware of this condition when MAXWELL was an infant.  This obviously satisfies the requirement that the disability “exist” prior to MAXWELL’S obtaining the age of majority.  
    B.    The issue with regard to propriety of an award of child
        support for an adult dependent child is dependency, not                 competency.  
     
    WILLIAM RATCLIFF also makes the false assumption that because MAXWELL SPOOR is legally competent that his Mother is not the proper party to bring a cause of action for child support.  However, the case of  Smith v. Smith, 495 So. 2d 886 (Fla. 2nd DCA 1986), rejected the argument that the mother lacked legal standing to sue for child support, because her son was legally competent and over the age of majority.  This Court held that “The issue with regard to propriety of an award of child support for an adult dependent child is dependency, not competency. “  This Court further held that “the parent of an adult dependent child is the proper party to seek support for that child.”  Id.  In the instant case, MAXWELL SPOOR is legally competent, but dependent on his parents for support, due to the Cystic Fibrosis.  
    C.    It Is Impermissible Discrimination to Require an Adult                 Dependent Child, Who Suffers from a Physical or Mental                 Disability, to File an Independent Cause of Action for                     Child Support, Where a Similarly Situated Adult                     Dependent Child is not Subject to the Same Requirement.  

    WILLIAM RATCLIFF argues that because of MAXWELL’S disability, the trial court lost jurisdiction when MAXWELL turned eighteen.  This argument discriminates against MAXWELL, based on his disability, which is a violation of the Equal Protection Clause of the United States Constitution, the Florida Constitution and the Americans with Disabilities Act.  It is impermissible discrimination to require an adult dependent child, who suffers from a physical or mental disability, to file an independent cause of action for child support, where a similarly situated Adult dependent child is not subject to the same requirement.  
The United States Constitution, Fourteenth Amendment, Section. 1. Provides that:
All persons born or naturalized in the United States and subject to the jurisdiction, thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fla. Const. Art. 1 Sec. 2 (2011), provides:
All natural persons, female and male alike, are equal under the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness be rewarded for industry, and to acquire, possess and protect property, except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be requested or prohibited by law.  No person shall be deprived of any right because of race, religion, national origin, or physical disability.

Title II, of The Americans with Disabilities Act, provides:
Title II prohibits disability discrimination by all public entities at the local (i.e. school district, municipal, city, county) and state level. Public entities must comply with Title II regulations by the U.S. Department of Justice. These regulations cover access to all programs and services offered by the entity. Access includes physical access described in the ADA Standards for Accessible Design and programmatic access that might be obstructed by discriminatory policies or procedures of the entity.

No legitimate governmental purpose is served, by requiring a disabled adult dependent child to file an independent cause of action for child support.  This policy, if implemented, would create a barrier to access to the courts for the disabled.  
D.    MAXWELL SPOOR will suffer extreme legal prejudice if this case is dismissed.  

    WILLIAM RATCLIFF argues that MAXWELL SPOOR would suffer no legal prejudice, if this case were to be dismissed and he was required to file an independent cause of action for child support.  However, this statement is wrong.  Unlike all the cases cited, by both parties, MAXWELL SPOOR is terminally ill.  His health is deteriorating so severely that the doctor wants to place a feeding tube in his stomach, so that he does not starve to death.  DEBORAH SPOOR is recently unemployed and cannot afford to buy the nutritional supplements and medication that are necessary to save her son’s life.  To make matters worse, DEBORAH SPOOR and MAXWELL SPOOR were just evicted from their home.  The only reason WILLIAM RATCLIFF wishes to have this case dismissed is to avoid his obligation to pay child support.  If this case is dismissed, it is very likely that MAXWELL SPOOR will not survive the two years it would take to refile and proceed to trial.  Therefore, MAXWELL SPOOR will suffer extreme legal prejudice if this case is dismissed.  

II.    CONCLUSION:
    Jurisdiction was proper with the trial court.  DEBORAH SPOOR is entitled to sue on MAXWELL’S behalf, and it is permissible that MAXWELL SPOOR is joined as a party.  The legal standard is dependency, not legal competency.  MAXWELL SPOOR will always be dependent on his parents for financial support.  Cystic Fibrosis is a genetic condition, that is present at birth.  Therefore, MAXWELL SPOOR satisfies the requirement that his disability exist, prior to him reaching the age of majority.  It is inpermissible discrimination to require a disabled adult dependent child to file an independent cause of action, while not having the same requirement for similarly situated adult dependent children.  This type of discrimination serves no legitimate purpose and constitutes a barrier to access to the courts for the disabled.  Finally, if this case is dismissed, MAXWELL SPOOR will suffer extreme legal prejudice, because he will most likely not survive, in the time it takes to start a new petition and get to trial.  
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document was mailed by prepaid United States postage to the Following:

PHILLIP A. ROACH, ESQUIRE
28179 Vanderbilt Dr., Suite 1
Bonita Springs, FL 34134

Dated: September 16, 2011

_________________________                                    NIKKI A. URI, LLC
FBN 0670367  
P.O. Box 770356
Naples, FL 34107
Office: 239.287.1753
Fax: 239.593.0437

CERTIFICATE OF COMPLIANCE

    Counsel for Appellants, MAXWELL SPOOR and DEBORAH J. SPOOR, certifies that this brief has been prepared in Times New Roman14 point font, in compliance with the requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2).

                                                                                                         ____________________________
NIKKI A. URI, LLC
Attorney for Appellants