Morton F. Plant Hospital Ass'n v. McDaniel 425 So. 2d 1213

OTT, Chief Judge.

We reverse the final order which dismissed Morton F. Plant Hospital Association, Inc.’s complaint against Lavon McDaniel.

Morton F. Plant Hospital initiated this action against McDaniel, the noncustodial father, for services rendered his minor child. McDaniel moved to dismiss the complaint alleging that he had never agreed with the hospital to pay for these services, and that under a settlement agreement with the mother, approved in a foreign divorce action, he could not be held liable for such charges. The motion was granted and the trial court held that a noncustodial parent’s “general obligation of support” is not sufficient to justify a third party in maintaining an action directly against the noncustodial parent for medical expenses incurred on behalf of the party’s children.

Initially, we feel a reversal is mandated because the motion to dismiss was granted prematurely and without basis on the meager record before it. The motion was unverified. In addition, the trial judge did not have copies of the foreign divorce decree and property settlement before him. Thus, the trial judge was not fully apprised of the parents’ responsibilities and obligations pursuant to the agreement or judgment. We feel it would be more prudent to let the case progress through pleadings and discovery, if not a full evidentiary hearing. Perhaps somewhere on down the line the action might become susceptible to summary disposition.

While we have disposed of this appeal on procedural grounds, we find some comment warranted on the underlying substantive question. We harbor serious reservations concerning the trial judge’s blanket finding that a noncustodial parent can never be sued by a third party. We now recognize that both parents, rather than just the father, are obligated to support their children consistent with their financial circumstances and the child’s requirements. Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973); § 61.001, et seq., Fla.Stat. (1981); § 744.-301, Fla.Stat. (1981). Further, we note that in Variety Children’s Hospital, Inc. v. Jean Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980), the third district held this duty of support was visited upon both parents and that a third-party hospital supplying hospital services could bring a cause of action based upon quasi-contract against either parent — at least under the facts of that case.

We recoil from forever limiting parental liability to third parties for a child’s medical care to what the parents contract, or a court finds, under the circumstances upon divorce. Consideration of the child’s needs and best interest is still paramount. This together with the comparative circumstances of the parties, the facts surrounding the child’s hospital admission, etc., may justify a third-party action. At the same time, we recognize that without substantial changes1 or equitable consideration there should not be any open right of the third party to look to a noncustodial parent whose support obligation has been considered and determined by a court of competent jurisdiction and with whom the third party has no connection. Each case will have to stand on its peculiar facts.

REVERSED and REMANDED for further proceedings consistent with this opinion.

*1215HOBSON, J., concurs.

DANAHY, J., concurs specially with opinion.

DANAHY, Judge,

concurring specially.

I agree with the result but not the rationale of the majority. Rather than reversing on the basis that summary dismissal was inappropriate as a procedural matter because the foreign divorce decree and other facj,s and circumstances were not before the trial court, I would address the question posed by the complaint and its dismissal: Whether Morton F. Plant Hospital Association, Inc.’s complaint against McDaniel is subject to dismissal solely on the basis that McDaniel was obligated to pay child support under the foreign divorce decree. I would hold that it is not. In my view, the terms of the divorce decree are not relevant to the question whether the action is sustainable. The other facts and circumstances mentioned by the majority are relevant only to matters which McDaniel should raise by way of defense or denial.

Under Florida law, either or both parents of a minor child have a duty to provide reasonable and necessary medical attention for that child. Variety Children’s Hospital v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980). There is no legal basis for the conclusion that an award of child support against the noncustodial parent in a divorce action terminates that obligation as far as the child is concerned.

The Court of Appeals of Kentucky expressed well the legal aspects of this situation in Parks v. Parks, 209 Ky. 127, 272 S.W. 419 (1925):

Infant children are neither parties nor privies nor the subject of barter. Their custody is not awarded the mother as a consideration, but because it is to their interest that this be done. Acceptance of their custody under such decree makes her primarily liable for their support and maintenance, but it does not absolve the father from his parental obligations. It cannot be doubted that, if under such circumstances the mother was unable to support the child, and necessaries were furnished to it by a third person, the husband would be reasonably liable therefor.

For instance, in dangerous illness, if the mother could not pay its necessary physician or hospital bills, can it be doubted that the father would be liable therefor?

Accord, County of York v. Johnson, 206 Neb. 200, 292 N.W.2d 31 (1980); Lawrence v. Cox, 464 S.W.2d 674 (Tex.Civ.App.1971); Smith v. Smith, 136 Ga. 531, 71 S.E. 869 (1911).

In short, I would reverse on the basis that Morton F. Plant Hospital Association, Inc.’s complaint sets forth a cause of action under Florida law. McDaniel may, of course, contest the question whether the services rendered by Morton F. Plant Hospital were in fact reasonable and necessary, and assert any defenses available to him.