author: BENTON, J.

text:
    STATE of Florida, Florida Department of Health, Robert Brooks M.D., in his official capacity as Secretary of the Florida Department of Health, The Agency for Health Care Administration, and Ruben J. King-Shaw, Jr., in his official capacity as Director of the Agency for Health Care Administration, Appellants, v. NORTH FLORIDA WOMEN’S HEALTH AND COUNSELING SERVICES, INC., et al., Appellees. Florida Board of Medicine, John W. Glotfelty, in his official capacity as Chairperson of the Florida Board of Medicine, and the Florida Board of Osteopathic Medicine, Bill Buckhalt, in his official capacity as Director of the Florida Board of Osteopathic Medicine, Appellants, v. North Florida Women’s Health and Counseling Services, Inc., et al., Appellees.
    Nos. 1D00-1983, 1D00-2106.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2001.

      Kenneth W. Sukhia, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tallahassee, for Appellants State of Florida, Department of Health, Robert Brooks, M.D., The Agency for Health Care Administration, and Ruben J. King-Shaw, Jr.
    Robert A. Butterworth, Attorney General; John J. Rimes, III, Assistant Attorney General, Tallahassee, for Appellants Florida Board of Medicine, John W. Glotfelty, and the Florida Board of Osteopathic Medicine, Bill Buckhalt.
    Bebe J. Anderson and Julie Rikelman of The Center for Reproductive Law & Policy, and Charlene Miller Carres, Tallahassee, for all Appellees; and Dara Klassel of Planned Parenthood Federation of America, Inc, New York, NY, for Appellees Planned Parenthood of Southwest and Central Florida and Planned Parenthood of Northeast Florida.
    Stephen C. Emmanuel and John R. Ber-anek of Ausley & McMullen, Tallahassee, and Thomas A. Horkan, Jr., and Victoria H. Pflug, Tallahassee, for Amicus Curiae Florida Catholic Conference.
   BENTON, J.

The Department of Health, the Board of Medicine, the Board of Osteopathic Medicine and the Agency for Health Care Administration (the State) appeal a final judgment granting permanent injunction. The injunction reflects the circuit court’s view that, however applied, the Parental Notice of Abortion Act, section 390.01115, Florida Statutes (1999) (the Act), violates the Right to Privacy secured by the Florida Constitution. See Art. I, § 23, Fla. Const. While we do not question the premise that “freedom of choice concerning abortion extends to minors,” In re T.W., 551 So.2d 1186, 1193 (Fla.1989), we conclude that the Act’s requirement that a reasonable effort be made to inform at least one parent or legal guardian that a minor child will undergo surgical procedures to terminate a pregnancy does not render the Act unconstitutional on its face. Accordingly, we reverse.

I.

The Act provides that a physician must, in most circumstances, notify a parent or legal guardian at least forty-eight hours before terminating a minor’s pregnancy.

(a) A termination of pregnancy may not be performed or induced upon a minor unless the physician performing or inducing the termination of pregnancy has given at least 48 hours’ actual notice to one parent or to the legal guardian of the pregnant minor of his or her intention to perform or induce the termination of pregnancy. The notice may be given by a referring physician. The physician who performs the termination of pregnancy must receive the written statement of the referring physician certifying that the referring physician has given notice. If actual notice is not possible after a reasonable effort has been made, the physician or his or her agent must give 48 hours’ constructive notice.
(b) Notice is not required if:
1. A medical emergency exists and there is insufficient time for the attending physician to comply with the notification requirements. If a medical emergency exists, the physician may proceed but must document reasons for the medical necessity in the patient’s medical records;
2. Notice is waived in writing by the person who is entitled to notice;
3. Notice is waived by the minor who is or has been married or has had the disability of nonage removed under s. 743.015 or a similar statute of another state;
4. Notice is waived by the patient because the patient has a minor child dependent on her; or
5. Notice is waived under subsection (4).

§ 390.01115(3), Fla. Stat. (1999). Subsection 4 of the Act creates an expedited judicial bypass procedure under which notice to a parent or guardian may be dispensed with in specified circumstances:

(a) A minor may petition any circuit court for a waiver of the notice requirements of subsection (3) and may participate in proceedings on her own behalf. The petition must include a statement that the petitioner is pregnant and notice has not been waived. The court may appoint a guardian ad litem for her. A guardian ad litem appointed under this subsection shall act to maintain the confidentiality of the proceedings. The circuit court shall advise the minor that she has a right to court-appointed counsel and shall provide her with counsel upon her request.
(b) Court proceedings under this subsection must be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court shall rule, and issue written findings of fact and conclusions of law, within 48 hours after the petition is filed, except that the 48-hour limitation may be extended at the request of the minor. If the court fails to rule within the 48-hour period and an extension has not been requested, the petition is granted, and the notice requirement is waived.
(c) If the court finds, by clear evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. If the court does not make the finding specified in this paragraph or paragraph (d), it must dismiss the petition.
(d) If the court finds, by clear evidence, that there is evidence of child abuse or sexual abuse of the petitioner by one or both of her parents or her guardian, or that the notification of a parent or guardian is not in the best interest of the petitioner, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. If the court does not make the finding specified in this paragraph or paragraph (c), it must dismiss the petition.
(e) A court that conducts proceedings under this section shall provide for a written transcript of all testimony and proceedings and issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence and the judge’s findings and conclusions be maintained. At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor.
(f) An expedited confidential appeal shall be available, as the Supreme Court provides by rule, to any minor to whom the circuit court denies a waiver of notice. An order authorizing a termination of pregnancy without notice is not subject to appeal.
(g) No filing fees or court costs shall be required of any pregnant minor who petitions a court for a waiver of parental notification under this subsection at either the trial or the appellate level.
(h) No county shall be obligated to pay the salaries, costs, or expenses of any counsel appointed by the court under this subsection.

§ 390.01115(4), Fla.Stat. (1999). The Act was signed into law on June 11,1999. But for the present litigation, the Act would have been in effect since July 1, 1999. See Ch. 99-822, § 3, at 3422, Laws of Fla. See also Amendments to the Fla. Rules of Civil Procedure, 756 So.2d 27, 27 (Fla.1999).

II.

Seeking to enjoin enforcement of the Act, physicians who perform abortions, clinics providing abortion services, and women’s rights organizations with minor female members filed a complaint (since amended) in circuit court even before the Act was slated to take effect. The plaintiffs also sought a declaratory judgment that the Act was unconstitutional because it violated pregnant minors’ constitutional rights to privacy, of equal protection, and of due process, and because it violated abortion providers’ due process rights. After a hearing, the circuit court granted the plaintiffs’ motion for a temporary injunction on July 27, 1999. The temporary injunction remained in place until the permanent injunction now before us superseded it.

The State appealed first the temporary, then the permanent, injunction. During the pendency of the appeal of the temporary injunction, we relinquished jurisdiction, once the trial on the merits had concluded, so the circuit court could enter final judgment. See generally Fla.R.App.P. 9.130(f). On May 12, 2000, entry of the final judgment granting permanent injunction mooted the State’s then pending appeal of the temporary injunction. In the final judgment granting permanent injunction, which we now have for review, the circuit court concluded that, while the Act did not violate equal protection or due process guarantees, state or federal, it did impermissibly infringe on the Right to Privacy guaranteed by the Florida Constitution. See Art. I, § 23, Fla. Const.

III.

Ordinarily only a person or family whose privacy rights are infringed or threatened has standing to assert the rights. See Sieniarecki v. State, 756 So.2d 68, 76 (Fla.2000). But a “recognized exception to [the rule against parties asserting the privacy rights of others] applies where enforcement of a challenged restriction would adversely affect the rights of non-parties, and there is no effective avenue for them to preserve their rights themselves.” Sieniarecki, 756 So.2d at 76 n. 3. See Eisenstadt v. Baird, 405 U.S. 438, 446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (assigning as a reason for considering third parties’ rights the fact that the third parties were “denied a forum in which to assert their own rights”).

Pregnant minors could, in theory, challenge the constitutionality of the Act. But experience has taught that they cannot count on being able to litigate the question to a final resolution. Compare In re T.W., 551 So.2d at 1189-90 (addressing the constitutionality of the parental consent act despite the fact that the minor raising the claim had already obtained an abortion), with State, Dep’t of Health and Rehabilitative Servs. v. Alice P., 367 So.2d 1045, 1048-49, 1053 (Fla. 1st DCA 1979) (holding administrative rule challenge moot after petitioners obtained abortions). A minor seeking an abortion has, as a practical matter, no assurance of being able to litigate fully a challenge to the Act’s constitutionality.

“The concept of vicarious standing has been applied specifically in the right of privacy area to permit a party to assert the constitutional rights of another.” State v. Long, 544 So.2d 219, 221 (Fla. 2d DCA 1989), affirmed sub. nom, Stall v. State, 570 So.2d 257 (Fla.1990), cert. denied, 501 U.S. 1250, 111 S.Ct. 2888, 115 L.Ed.2d 1054 (1991); see also Jones v. State, 640 So.2d 1084, 1085 (Fla.1994). No plaintiff seeks damages here. The relief for which the complaint prays is injunctive and declaratory only.

Physicians especially have been granted standing to invoke rights of privacy on behalf of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The rule barring third parties from asserting privacy rights is relaxed in part because of the nature of the physician-patient relationship. See Eisenstadt, 405 U.S. at 444-45, 92 S.Ct. 1029. In the present case, moreover, plaintiffs maintain that the Act compels physicians to violate patient-physician confidentiality by requiring them to notify a parent or guardian when a minor intends to have an abortion.

Physicians’ own interests are at stake here, too. They are subject to discipline if they violate the notice provisions of the Act. See §§ 390.01115(3)(c), 458.331(l)(z), Fla. Stat. (1999); see also Sieniarecki, 756 So.2d at 76 n. 3 (noting the propriety of asserting privacy rights of third parties when “it is the petitioners who ‘stand to lose from the outcome of this case and yet they have no other effective avenue for preserving their rights’ than by raising the constitutional rights of non-parties”); Jones v. State, 619 So.2d 418, 419 (Fla. 5th DCA 1993), affirmed, 640 So.2d 1084 (Fla.1994). Only physicians, indeed, are subject to any penalty under the Act. A physician who violates the terms of the Act faces possible loss of his or her license to practice medicine. See § 458.331(2), Fla. Stat. (1999); see also Jones, 640 So.2d at 1085.

Because the physicians who are plaintiffs here have standing to assert the rights of their minor patients, the circuit court properly reached the merits of the complaint that these physicians (albeit together with other plaintiffs) filed. “While [the State] questions] the standing of the [entire] coalition [of plaintiffs], we need not discuss that issue [further] because of the standing of the [physician] plaintiffs.” Coalition for Adequacy and Fairness in Sch. Funding v. Chiles, 680 So.2d 400, 403 n. 4 (Fla.1996). At issue are minor patients’ privacy rights and concomitant equal protection and due process rights. We reject the state’s contention that none of the plaintiffs has standing to raise the rights of pregnant minors.

IV.

On the merits, “[i]n keeping with principles of federalism - enunciated by the Florida Supreme Court,” State v. Stanley, 754 So.2d 869, 872 (Fla. 1st DCA 2000), we first examine the challengers’ claims that the Act is repugnant to the Florida Constitution. See Traylor v. State, 596 So.2d 957, 962 (Fla.1992) (“When called upon to decide matters of fundamental rights, Florida’s state courts are bound under federalist principles to give primacy to our state Constitution.... ”); TA Operating Corp. v. State, Dep’t of Revenue, 767 So.2d 1270, 1277 (Fla. 1st DCA 2000); Hoggins v, State, 689 So.2d 383, 385 (Fla. 4th DCA 1997); Silver Rose Entertainment, Inc. v. Clay County, 646 So.2d 246, 249 (Fla. 1st DCA 1994).

A.

The Declaration of Rights provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life.... ” Art. I, § 23, Fla. Const. The Florida constitutional Right to Privacy has been construed more broadly than any right to privacy guaranteed under the federal constitution. See Saul v. Brunetti, 753 So.2d 26, 28 (Fla.2000) (holding father’s right to privacy trumped any rights dead mother’s parents might have to visit their grandchild); Krischer v. McIver, 697 So.2d 97, 100 (Fla.1997) (holding right of privacy did not render statute outlawing assisted suicide unconstitutional); Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 547-48 (Fla.1985) (“The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy.”).

1.

Our supreme court has specifically held that the Right to Privacy is implicated when the Legislature imposes restrictions on the ability, even of minors, to obtain abortions. See In re T.W., 551 So.2d at 1192-93. At issue in the T.W. case was whether a statute could require parental consent as a precondition to a minor’s obtaining medical assistance with an abortion. The court held that, because the parental consent statute impinged upon minors’ privacy rights, the “state must prove that the statute furthers a compelling state interest through the least intrusive means,” In re T.W., 551 So.2d at 1193, and that the statutory provision purporting to impose the consent requirement was unconstitutional for failure to vindicate a compelling state interest by the least intrusive means.

The plurality opinion in In re T.W. (as well as Chief Justice Ehrlich) concluded that, because the right to privacy under the Florida Constitution applied to “[e]very natural person,” Art. I, § 28, Fla. Const., minors also enjoy rights to privacy under the Florida Constitution. See 551 So.2d at 1193, 551 So.2d at 1197 (Ehrlich, C.J., concurring specially). The plurality opinion also concluded, however, that, as to minors, “society has recognized additional state interests-protection of the immature minor and preservation of the family unit.” 551 So.2d. at 1194; see 551 So.2d at 1198-99 (Ehrlich, C.J., concurring specially). The plurality opinion made clear that minors’ rights to privacy, while including “freedom of choice concerning abortion,” were not coextensive with adults’ rights to privacy and “that a minor’s rights are not absolute.” In re T.W., 551 So.2d at 1193.

2.

By requiring that a minor’s parent or guardian be notified that she intends to undergo an abortion, the Act plainly interferes with “the right to be let alone and free from governmental intrusion into the person’s private life.” Art. I, § 23, Fla. Const. In order to withstand a constitutional challenge, therefore, the Act must serve a compelling state interest and do so by the least intrusive means practicable. See, e.g., Shaktman v. State, 553 So.2d 148, 151-52 (Fla.1989); Winfield, 477 So.2d at 547. It is the State’s burden to show that a compelling state interest exists. See Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1033-34 (Fla.1999); State v. Presidential Women’s Ctr., 707 So.2d 1145, 1149 (Fla. 4th DCA 1998) (“The State is going to have to recognize, on remand, that it has the burden of demonstrating that legislation infringing on the right to privacy serves a compelling state interest and does so through the least intrusive means.”).

In a statement of legislative purpose, the Legislature has asserted that several state interests served by the Act are “important and compelling”:

[ T]he Legislature’s purpose in enacting parental notice legislation is to further the important and compelling state interests of protecting minors against their own immaturity, fostering family unity and preserving the family as a viable social unit, protecting the constitutional rights of parents to rear children who are members of their household, and reducing teenage pregnancy and unnecessary abortion ...
... [F]urther legislative purposes are to ensure that parents are able to meet their high duty to seek out and follow medical advice pertaining to their children, stay apprised of the medical needs and physical condition of their children, and recognize complications that might arise following medical procedures or services, to preserve the right of parents to pursue a civil action on behalf of their child before expiration of the statute of limitations period, if a facility or physician commits medical malpractice that results in injury to a child, and to prevent, detect, and prosecute batteries, rapes, and other crimes committed upon minors ...

Ch. 99-322, at 3419, Laws of Fla. This statement of legislative purpose does not, however, “obviate the need for judicial scrutiny.” State Employees Attorneys Guild, 734 So.2d at 1034.

Appellees argue persuasively that many of these asserted interests ought not be deemed compelling under the rationale of In re T.W. or otherwise, and that the Act does not vindicate all these asserted interests by the least intrusive means. But if the State has established that even one of these interests is a compelling state interest and that the Act furthers that interest by means that are no more intrusive than necessary, no court has authority to strike down the Act as facially violating article I, section 23 of the Florida Constitution.

3.

At least one such interest has been established here. By facilitating the ability of parents and guardians to fulfill their duty to provide appropriate medical care for their daughters or wards, the Act serves a compelling state interest. Parents are legally responsible for their minor children’s health insofar as it is in their power to foster it. They have a duty to stay alert to their minor children’s medical needs, and to secure appropriate medical assistance if they are able to do so. See § 827.03(3)(a)l., Fla.Stat. (1999) (defining neglect as including the failure to provide necessary medicine and medical services); see also Finn v. Finn, 312 So.2d 726, 730 (Fla.1975) (“[A] parent has the obligation to nurture, support, educate, and protect his minor children and the child has the right to call on him for the discharge of this duty.”).

When the disabilities of nonage disappear, of course, these paternalistic responsibilities disappear along with them. But until a child is emancipated, she depends on her parent(s) or guardian, legally if not always as a practical matter, to arrange for her healthcare, including medical treatment necessitated by post-abortion complications.

The State proved that appropriate aftercare is critical in avoiding or responding to post-abortion complications. Abortion is ordinarily an invasive surgical procedure attended by many of the risks accompanying surgical procedures generally. If post-abortion nausea, tenderness, swelling, bleeding, or cramping persists or suddenly worsens, a minor (like an adult) may need medical attention. A guardian unaware that her ward or a parent unaware that his minor daughter has undergone an abortion will be at a serious disadvantage in caring for her if complications develop.

An adult who has been kept in the dark cannot, moreover, assist the minor in following the abortion provider’s instructions for post-surgical care. Failure to follow such instructions can increase the risk of complications. As the plaintiffs’ medical experts conceded, the risks are significant in the best of circumstances. While abortion is less risky than some surgical procedures, abortion complications can result in serious injury, infertility, and even death.

4.

An important step in gauging whether an interest should be deemed compelling is ascertaining whether the Legislature has acted consistently in protecting the interest. Specifically with respect to the State’s “interest in protecting minors,” In re T.W., 551 So.2d at 1195, our supreme court has said that a “ ‘selective approach employed by the legislature evidences the limited nature of the ... interest being furthered....’” Id. (quoting Ivey v. Bacardi Imports Co., 541 So.2d 1129, 1139 (Fla.1989)).

In general, before a minor child can obtain medical treatment — unless an emergency renders obtaining consent impractical — her parent or guardian must consent to the treatment. See §§ 743.064(2), 743.0645(2), Fla.Stat. (1999). This legislatively mandated requirement naturally entails notice to the parent or guardian. Such notice serves the same general purpose and vindicates the same general interest in facilitating adult assistance in managing medical problems as the Act does, with respect to medical problems related to abortions.

The Legislature has made exceptions, both for other pregnancy-related treatment, see § 743.065(1), Fla.Stat. (1999), and for treatment for sexually transmitted diseases, see § 384.30(1), Fla.Stat. (1999), to the general rule that a parent or guardian must consent to (and therefore have notice of) a minor child’s medical treatment. And it has done so without substituting a parental notification requirement. But we reject the contention that these statutes evince a legislative discounting of the importance of adult assistance in managing minors’ post-surgical care. There are obvious and important differences between sexually transmitted diseases, pregnancies that go to term, and abortions. These differences logically account for the differential statutory treatment.

a.

Sexually transmitted diseases are by definition contagious. See § 384.22, Fla. Stat. (1999) (“The Legislature finds and declares that sexually transmissible diseases constitute a serious and sometimes fatal threat to the public ... health.... [T]he incidence of sexually transmissible diseases is rising at an alarming rate.... ”). Rather than risk a (larger) epidemic, the Legislature has made a clearly rational decision to minimize barriers to treatment for sexually transmissible diseases. Not requiring minors to notify their parents or guardians in order to obtain medical treatment for sexually transmissible diseases evinces a public policy which in no way undermines or discredits the state’s interest in trying to assure the adequacy of minors’ care while they are recovering from surgery, including abortions. Treatment for sexually transmissible diseases does not ordinarily involve surgery.

b.

For parental notification purposes, the Legislature also has a legitimate basis for distinguishing between abortion and other pregnancy-related medical treatment. But see Planned Parenthood v. Farmer, 165 N.J. 609, 762 A.2d 620, 631-38 (2000). Absent abortion, pregnancy-related treatment includes general checkups as a matter of course, perhaps ultrasound studies or x-rays, but by no means always surgery. Such surgery as is necessary commonly occurs at the time of birth. By then most minors’ pregnancies are likely to be known to a parent or guardian so that a formal, legal requirement to give notice would not meaningfully advance any state purpose.

B.

Legislative consistency is also the command made “by the Florida Constitution’s Equal Protection Clause[,] Article I, section 2, Florida Constitution.” Advisory Opinion to the Attorney General, 778 So.2d 888, 903 (Fla.2000) (Shaw, J., concurring in result). “It is well settled under ... Florida law that all similarly situated persons are equal under the law and must be treated alike.” St. Mary’s Hosp. v. Phillipe, 769 So.2d 961, 971 (Fla.2000). See Vildibill v. Johnson, 492 So.2d 1047, 1050 (Fla.1986).

“For a statutory classification to satisfy the equal protection clauses found in our organic documents, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed.” Rollins v. State, 354 So.2d 61, 63 (Fla.1978).

Department of Health and Rehabilitative Servs. v. Heffler, 382 So.2d 301, 301-02 (Fla.1980) (relying on article I, section 2 of the Florida Constitution). See also Green v. State, 620 So.2d 188, 188 (Fla.1993) (holding that “equal protection under article I, section 2, of the Florida Constitution” required state-paid counsel for indigent, death-sentenced certiorari petitioners, regardless of what the federal constitution required).

The Legislature has required that a physician notify a minor’s parent or guardian before performing an abortion, but not before treating her for sexually transmissible diseases (which is unlikely to entail surgery), or before providing other medical treatment on account of her pregnancy (which is likely to entail surgery, if at all, only at term, after the minor’s pregnancy is apparent even to a casual observer). For purposes of decision, we assume the Florida Constitution requires strict scrutiny of this differential treatment. See Scavella v. School Bd. of Dade County, 363 So.2d 1095, 1097-98 (Fla.1978). But for the same reasons set out in the preceding section as to the Right to Privacy, we find no violation of article I, section 2 of the Florida Constitution.

C.

An essential feature of the Act is its provision for a judicial waiver of the requirement that a parent or guardian be notified. “Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government.” J.B. v. Florida Dep’t of Children & Family Servs., 768 So.2d 1060, 1063 (Fla.2000) (quoting Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991)). The individual right at issue here is “a woman’s right to control her body and her future,” Farmer, 762 A.2d at 631-32, a right she has even as an unemanci-pated minor. Due process requires, therefore, that the Act not “operate as a functional bar to a minor’s exercise of her constitutional right to make her own reproductive decisions.” Farmer, 762 A.2d at 634.

The Act allows distinctions on the basis of a minor’s maturity. As the trial court observed, “maturity is a relative term. The older the minor the more difficult it is to justify interference with her right to freely choose.” Although the Act applies to all minors, it allows sufficiently mature minors to proceed without notification to parent or guardian. The judicial waiver or bypass procedure affords the minor an opportunity to prove that she is “sufficiently mature to decide whether to terminate her pregnancy.” § 390.01115(4)(c), Fla. Stat. (1999).

Judicial waiver is also authorized upon a finding “that the notification of a parent or guardian is not in the best interest of the petitioner.” § 390.01115(4)(d), Fla. Stat. (1999). In this facial challenge, we have no occasion — and no ability — to catalogue every possible scenario in which the best interest of a petitioner would mandate judicial waiver. Under In re T.W., however, judicial waiver is constitutionally required whenever notice would burden impermissibly the exercise of a minor’s freedom of choice. A fortiori, judicial waiver is required whenever a petitioner demonstrates that the freedom of choice the Florida Constitution guarantees her could not, as a practical matter, be exercised if a parent or guardian were given notification.

The Act envisions a judicial bypass hearing at which the minor, with the assistance of counsel, presents evidence ex parte in support of her request for a judicial waiver of parental notification. Plaintiffs contend that the Act is vague in requiring the minor to establish grounds for the waiver by clear evidence without defining the term “clear evidence.” § 390.01115(4)(c) & (d), Fla.Stat. (1999). But, even if the Legislature intended that a minor provide clear and convincing evidence in order to establish grounds for a judicial waiver, see Senate Staff Analysis and Economic Impact Statement, S.B. 1598, at 6 (Apr. 6, 1999) (“A circuit court may waive the notice requirement if it finds, using a clear and convincing evidence standard” grounds for excusing notice), such a standard would not render the Act unconstitutional. Since the Act cannot be read to impose a standard more onerous than clear and convincing evidence, vagueness about the magnitude of the petitioner’s burden cannot work to the petitioner’s disadvantage. See generally Lambert v. Wicklund, 520 U.S. 292, 294, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 515-16, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). The Act does not offend due process by requiring the minor to present “clear evidence,” which amounts at most to evidence “the sum total of [which] must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla.1994).

D.

Certain procedural protections which the Act incorporates into the judicial bypass process are essential to the Act’s passing muster under In re T.W. “Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights.” J.B, 768 So.2d at 1063, 1064 (quoting Department of Law Enforcement, 588 So.2d at 960).

Our supreme court concluded that the parental consent act was unconstitutional at least in part because it did not provide for counsel at or for a record of the judicial bypass hearings. See In re T.W., 551 Soüd at 1195-96. Here, in contrast, the Act requires that the “circuit court shall advise the minor that she has a right to court-appointed counsel and shall provide her with counsel upon her request,” § 390.01115(4)(a), Fla.Stat. (1999), and specifically requires the circuit court to conduct the parental notice waiver hearing on the record:

A court that conducts proceedings under this section shall provide for a written transcript of all testimony and proceedings and issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence and the judge’s findings and conclusions be maintained.

§ 390.01115(4)(e), Fla.Stat. (1999); see also Fla.R.Civ.P. 1.840(h) (“As provided by section 390.01115(4)(e), Florida Statutes, a court that conducts proceedings under the statute shall: (1) provide for a written transcript of all testimony and proceedings; ... and (3) order that a confidential record of the evidence and the judge’s findings and conclusions be maintained.”).

Under the Act, and the rule of civil procedure that implements the Act, the trial court must “provide for a written transcript.” A record is necessary to preserve the minor’s right to appeal in the event the circuit court denies her petition for waiver of notice. § 390.01115(4)(f), Fla. Stat. (1999). The Act also provides:

No filing fees or court costs shall be required of any pregnant minor who petitions a court for a waiver of parental notification under this subsection at either the trial or the appellate level.

§ 390.01115(4)(g), Fla.Stat. (1999). Plaintiffs contend that this language does not go so far as to require furnishing a transcript without cost to a non-indigent minor who appeals denial of judicial waiver, and that lack of such a requirement renders the Act unconstitutional. We approve, however, of the State’s construction of the statute as requiring transcripts at no cost for non-indigent, as well as for indigent, waiver-denial appellants. See generally Perkins v. Florida State Univ., 303 So.2d 415, 416 (Fla. 1st DCA 1974).

The parties apparently agree that an indigent petitioner appealing denial of judicial waiver is entitled to an (expedited) transcript of the testimony at the waiver hearing at public expense. See § 57.081(1), Fla.Stat. (1999) (“Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge.”); Smith v. Department of Health and Rehabilitative Servs., 573 So.2d 320, 323 (Fla.1991) (holding that, because “the agencies must provide transcripts, ... as indigents the petitioners are entitled to receive them without charge” in contradistinction to appellants from trial court orders where the trial court is not charged with “providing] for a written transcript of all testimony.” § 390.01115(4)(e), Fla.Stat. (2000).).

“At least since the enactment of chapter 80-348, section 1, at 1446, Laws of Florida, ‘agencies must provide transcripts ... [to indigents taking administrative appeals] without charge.’ Smith v. Department of Health and Rehabilitative Services, 573 So.2d 320 (Fla.1991).” State, Dep’t of Health and Rehabilitative Servs. v. Southpointe Pharmacy, 636 So.2d 1377, 1382 (Fla. 1st DCA 1994) (brackets in original). Our supreme court reasoned:

If section 120.57(l)(b)(7) requires an agency to provide a. transcript in unemployment compensation cases, it is obvious that the agencies involved in the instant cases have the same obligation. While there is no statute comparable.to section 443.041(2)(a) which precludes these agencies from charging fees of any kind, the provisions of section 57.081 specify that an indigent person who is a party to an administrative agency proceeding “shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge.” § 57.081(1), Fla.Stat. (1985). Thus, the agencies must provide transcripts, and as indigents the petitioners are entitled to receive them without charge. While this results in a more complete state subsidization in indigents’ administrative appeals than in indigents’ appeals from trial court judgnients, this is a legislative matter with which we are not concerned.

Smith, 573 So.2d at 323. Unlike ordinary “appeals from trial court judgments,” appeals from denial of judicial waivers under section 390.01115(4), Florida Statutes (1999), require that the circuit court — like administrative agencies under section 120.57(l)(g), Florida Statutes (1999) — “provide for a written transcript of all testimony.” § 390.01115(4)(e), Fla.Stat. (1999). By analogy to Smith, transcripts required in appeals from waiver denials are also “court costs” which shall not “be required of any pregnant minor who petitions a court for a waiver of parental notification under this subsection at either the trial or the appellate level.” § 390.01115(4)(g), Fla. Stat. (1999). The statute forbids requiring the pregnant minor to pay for a transcript she needs to prosecute an appeal from an order denying a judicial waiver.

Importantly, the Act and court rules unambiguously require prompt judicial action at both the trial and appellate levels, failing which the petition must be deemed granted by default. The Act provides for an expedited hearing within forty-eight hours after the minor files a petition:

The court shall rule, and issue' written findings of fact and conclusions of law, within 48 hours after the petition is filed, except that the 48-hour limitation may be extended at the request of the minor. If the court fails to rule within the 48-hour period and an extension has not been requested, the petition is granted, and the notice requirement is waived.

§ 890.01116(4)0»), Fla.Stat. (1999); see also Fla.R.Civ.P. 1.840(g). Even if the minor requests an extension-no other party can — the Act requires that waiver “proceedings ... must be given precedence over other pending matters to the éxtent necessary to ensure that the court reaches a decision promptly.” § 390.01115(4)(b), Fla.Stat. (1999).

Whether or not the Act unconstitutionally encroaches on judicial prerogatives by purporting to dictate time standards in judicial proceedings, see Allen v. Butterworth, 756 So.2d 52, 59-60 (Fla.2000), our supreme court has adopted the forty-eight hour requirement by rule. Fla.R.Civ.P. 1.840(g). The supreme court has also provided by rule that, if an appeal from an order denying a petition for judicial waiver of parental notice of abortion is taken, “the district court of appeal shall render its decision on the appeal as expeditiously as possible and by no later than 10 days from the filing of the notice of appeal.” Fla. R.App.P. 9.110®.

V.

The plaintiffs contend that the Act runs afoul not only of the Florida Constitution but also of the United States Constitution. Comparable statutes enacted by other states have been assailed on various federal constitutional grounds, however, and, been upheld. Of statutes regulating minors’ abortions, including statutes like the Parental Notice of Abortion Act at issue here, the United States Supreme Court has said:

Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.

Planned Parenthood v. Casey, 505 U.S. 883, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (holding state may not require notice to husband because a “State may not give to a man the kind of dominion over his -wife that parents exercise over their children”). See Lambert v. Wicklund, 520 U.S. 292, 293, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997) (upholding parental notice statute); Hodgson v. Minnesota, 497 U.S. 417, 423, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (same); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (concluding that “a bypass procedure that will suffice for a consent statute will suffice also for a notice statute”).

VI.

We reject plaintiffs’ contention that the Act is facially unconstitutional because it violates the due process rights of physicians. Sections 458.331(l)(z) and 459.015(l)(dd), Florida Statutes (1999), which make a physician subject to discipline if the physician procures, or aids or abets in procuring, an unlawful abortion, do not purport to make physicians guarantors of their patients’ truthfulness. As used in these statutes, the words “procure” and “aid or abet” signify more than innocent participation in an unlawful abortion. Only if an abortion provider knew, or should have known, that the person seeking the abortion was a minor for whom notice had not been judicially waived or statutorily excused, can the provider be disciplined under the Act or the medical practice acts for performing the abortion. See generally, e.g., Ghani v. Department of Health, 714 So.2d 1113, 1115 (Fla. 1st DCA 1998).

Because disciplinary action is penal in nature, grounds for discipline must be established by clear and convincing evidence. See § 120.57(1)©, Fla.Stat. (1999); Nair v. Department of Bus. and Prof'l Regulation, 654 So.2d 205, 206-07 (Fla. 1st DCA 1995); see generally Dep’t of Banking and Fin. v. Osborne Stern and Co., 670 So.2d 932, 933-34 (Fla.1996); Ferris v. Turlington, 510 So.2d 292, 294 (Fla.1987). Physicians may be disciplined for “[gjross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions or circumstances,” §§ 458.331(l)(t), 459.015(l)(x), Fla.Stat. (1999), or for “[pjrocuring, or aiding or abetting in the procuring of, an unlawful termination of pregnancy.” §§ 458.331(l)(z), 459.015(l)(dd), Fla.Stat. (1999).

The Act does not, however, render physicians subject to discipline who make a good faith, objectively reasonable, effort to comply with the provisions of the Act. Under accepted principles, the Act must be construed as requiring scienter. Cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (“Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than ‘a trap for those who act in good faith.’ United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383 (1942).”); Women’s Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 206 (6th Cir.1997) (“Without a scienter requirement, the Act does not adequately notify a physician that certain conduct is prohibited; rather, a physician may be held criminally and civilly liable for adhering to his or her own best medical judgment.”); Planned Parenthood v. Miller, 63 F.3d 1452, 1465 (8th Cir.1995) (“[Wjithout a scienter requirement, this strict criminal-liability statute will have a ‘profound chilling effect on the willingness of physicians to perform abortions.’ It thus creates a substantial obstacle to a woman’s right to have a pre-viability abortion _” (citations omitted)).

' Reading the Act or the medical practice acts otherwise would raise serious constitutional questions. See Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla.1993) (“If it is reasonably possible to do so, we are obligated to interpret statutes in such a manner as to uphold their constitutionality.”); State v. Gale Distribs., 349 So.2d 150, 153 (Fla.1977) (“[The courts] ha[ve] a duty, if reasonably possible and consistent with constitutional rights, to resolve all doubts as to the validity of a statute, in favor of its constitutionality and to construe it so as not to conflict with the Constitution.”). A physician who acts reasonably does not become subject to discipline simply because a minor conceals facts or misleads the physician as to her age or some other pertinent fact.

Finally, the plaintiffs complain that the Act does not define exactly what amounts to “reasonable efforts.” But regulations governing physicians (among others) are commonly couched in terms of reasonableness. See, e.g., §§ 458.331(l)(s), (l)(t), & (l)(v), Fla.Stat. (1999); see also § 743.0645(2), Fla.Stat. (1999) (“[T]he following persons ... may consent to the medical care or treatment of a minor ... when, after a reasonable attempt, a person who has the power to consent as otherwise provided by law cannot be contacted by the treatment provider....”). We are not persuaded that the statute is facially unconstitutional on this basis, either.

VII.

Properly construed, the Act is not facially unconstitutional. In facilitating parents’ and guardians’ involvement in caring for their immature minor daughters and wards as they recover from surgery, the Act serves a compelling state interest. To accomplish this purpose, the Act intrudes no more than minimally necessary on the privacy rights recognized by In re T.W., because the Act guarantees prompt judicial waiver in the circumstances described in section 390.01115(4), Florida Statutes (1999), by affording minors the assistance of counsel in a judicial bypass proceeding, which includes meaningful review of any denial of a petition for waiver. On its face, the Act does not violate equal protection guarantees or deprive minors or their physicians of due process of law.

Accordingly, we reverse the final judgment declaring the Act facially unconstitutional, and remand with directions that the permanent injunction be dissolved.

MINER and BROWNING, JJ., concur.

      . Citing Justice Kogan's concurring opinion in Jones v. State, 640 So.2d 1084, 1091 (Fla.1994), the State asserts that In re T.W. is not binding precedent because four justices did not join any one opinion. Although In re T.W. occasioned five separate opinions, a majority concurred on almost all of the points set out in the plurality opinion. In a special concurrence, Chief Justice Ehrlich agreed for the most part with the analysis in the plurality opinion:
      I wholeheartedly concur that Florida's express constitutional right of privacy, article I, section 23, Florida Constitution, is implicated in this case. Specifically, I note that the privacy provision was added to the Florida Constitution by amendment in 1980, well after the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It can therefore be presumed that the public was aware that the right to an abortion was included under the federal constitutional right of privacy and would therefore certainly be covered by the Florida privacy amendment. See Jenkins v. State, 385 So.2d 1356 (Fla.1980). As expressed by the majority, it is also clear that the right of privacy extends to minors. See at 1192-1193.
      It is therefore necessary for us to decide whether the state has a compelling interest sufficient to outweigh the minor girl's right of privacy, and if so, whether this statute is the least intrusive means of furthering that compelling interest. Winfield v. Division of Pari Mutuel Wagering, 477 So.2d 544 (Fla.1985). I agree that the state does not have a compelling interest sufficient to support the statute in this case, and even if the state’s interest were compelling, I believe this statute is not the least intrusive means of furthering any such interest.

      I recognize that in cases involving minors, the state has an additional interest in protecting the immature minor and the integrity of the family. I agree, however, that in light of section 743.065 the state’s interest in the parental consent statute is not compelling. Section 743.065 expressly grants to a pregnant, unwed minor the ability to consent, as though she were an adult, to medical services relating to pregnancy, except abortion, and to medical services for her child after birth. Decisions relating to the medical services covered under section 743.065 do not differ qualitatively from the decision to have an abortion. For example, under section 743.065, the pregnant minor girl may refuse to consent to medical treatment even though she is informed that without such treatment the fetus will not survive to term. At the heart of that situation, as with abortion, is a decision involving the life or death of the fetus. Yet under this statutory scheme, the minor girl is considered competent to make one decision but not the other. Given this statutory scheme, I must agree that the state has failed to prove that its interest in protecting the immature minor is compelling so as to outweigh the privacy rights of the minor girl.

        In re T.W., 551 So.2d 1186, 1197, 1198-99 (Fla.1989) (Ehrlich, C.J., concurring specially) (footnotes omitted). The Chief Justice's concurring opinion tracked the plurality opinion except as to the definition of viability. See id. at 1198. As far as part III of the plurality opinion is concerned, Chief Justice Ehrlich’s reasoning is identical to the plurality opinion’s.

      . See post n. 3.

      . In circumstances where non-abortive surgery is necessary, moreover, the patient is more likely to have a substantial relationship with her treating physician. Absent emergency circumstances' — circumstances which would eliminate the requirement to notify a parent or guardian anyway — the surgeon is supposed to advise the minor fully of the nature of the procedure and attendant risks and receive informed consent before performing pregnancy — related surgery. This provides an opportunity to give advice specific to the patient about possible post-surgical complications, how to avoid them or minimize the risk of their occurrence, and what to do if they arise.
      On the other hand, evidence at trial showed, the physician-patient relationship is often attenuated in the abortion context, almost to the point of non-existence. Cf. Planned Parenthood v. Danforth, 428 U.S. 52, 91, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) ("It seems unlikely that [the minor] will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.”). Abortion patients ordinarily see their physicians only once or twice, very briefly. Most of their interaction is with the clinic’s staff. Physicians performing abortions often perform several in the space of a single hour.
      On this challenge to the facial validity of the Act, we do not consider whether the Act can be constitutionally applied to non-surgical abortion procedures such as the recently approved abortion pill, RU 486. See Letter from the Center for Drug Evaluation and Research, Food and Drug Administration to Sandra P. Arnold, Vice President, Corporate Affairs, Population Council (Sept. 28, 2000) ("We have completed the review of this application, as amended, and have concluded that adequate information has been presented to approve ... mifepristone [RU 486] ... for use as recommended in the agreed upon labeling text. The application is approved under 21 CFR 314 Subpart H. Approval is effective on the date of this letter.”). The evidence presented below was limited to the risks associated with surgical abortions as practiced at the time of the hearing and did not address the risks associated with RU 486, which had not been approved at the time of hearing. It is not clear on this record when, if ever, RU 486 can be safely administered to minors, or when, if ever, it will be administered to minors in Florida.

      . The availability of judicial waiver is crucial to our decision that the Act furthers by the least intrusive means the compelling state interest we have identified.

      . The statute does not, as plaintiffs point out, set a time limit for conducting a hearing if an extension is granted. We reject the contention that this omission renders the Act facially unconstitutional. As the only party authorized to request an extension of time, the minor can wait until she is prepared for the waiver hearing to file her petition, in order to avail herself of the 48-hour deadline.


source: Caselaw Access Project

author: DAVIS, Judge. GREEN, OLIVER L., Senior Judge,

license: Public Domain

text:
    CITY OF TAMPA, Appellant, v. Joseph R. REDNER, Appellee.
    No. 2D02-120.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Rehearing Denied Aug. 8, 2003.

      James D. Palermo, City Attorney, Jerry M. Gewirtz, and Jorge I. Martin, Assistant City Attorneys, Tampa, for Appellant.
    Luke Lirot of Luke Charles Lirot, P.A., and Jennifer D’Angelo, Tampa, for Appel-lee.
   DAVIS, Judge.

The City of Tampa appeals the final judgment entered by the trial court that awards Joseph R. Redner $493,256.15 in damages for the wrongful temporary taking of Redner’s property right by improperly rezoning Redner’s real property from “wet” to “dry.” The City argues that the trial court improperly instructed the jury as to the measure of damages. We agree and reverse the final judgment.

Redner owns a certain parcel of real property in the City of Tampa. Prior to his obtaining title, the property was zoned wet, allowing for the sale of alcoholic beverages. Redner obtained title through a complicated series of business transactions that need not be reviewed for purposes of this appeal. However, after Redner obtained title, but prior to his actually taking possession of the property, the city improperly rezoned the property dry, thus disallowing the use of the property as a bar. Redner sued the City, arguing that the rezoning was improper and amounted to a taking of his interest in the property. The trial court agreed and ordered the City to restore the wet zoning. That final summary judgment was appealed, and this court affirmed the trial court’s decision. See City of Tampa v. Redner, 778 So.2d 288 (Fla. 2d DCA 2000).

The trial court then held a jury trial to determine Redner’s damages for the loss of eight years of wet zoning. The City, arguing that the measure of Redner’s damages should be governed by Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th Cir.1987), proposed a jury instruction which tracked the language of that decision:

Accordingly, in this case, if you find that the City of Tampa is liable for damages to Joseph Redner, Mr. Redner’s damages should be the market rate of return, computed over the period of the temporary taking, on the difference between the property’s fair market value with wet zoning and its fair market value without wet zoning at the time of the taking.
You should not award additional compensation for lost profits or increased costs of development because the relevant fair market values by definition reflect a market estimation of future profits and development costs with respect to this property.

The trial court determined that Wheeler did not apply to this case and refused to give the City’s proposed instruction. Instead, the trial court gave the following instruction requested by Redner:

This measure of compensatory damages can be determined as the loss in income producing potential suffered over that period of time during which the Plaintiffs civil rights were deprived.

The trial court’s summary final judgment found that the City improperly took from Redner a “zoning entitlement.” Although the land with the improperly imposed dry zoning would generate less income than if the property were zoned wet, there was no claim that the dry zoned property was without any value whatsoever nor that it could not produce some income. Accordingly, the proper measure of damages is the reduction in the income producing potential, not the amount of all income lost while the property sat vacant for a period of time. This reduction in income producing potential is measured by subtracting the annual income potential of the property as zoned dry from the annual income potential of the property as zoned wet, multiplied by the number of years the property was improperly zoned. See Wheeler, 883 F.2d 267. The annual income potential would be the expected percentage of return on investment multiplied by the fair market value of the property. For example, if the fair market value of the property zoned dry is $250,000 and the expected percentage of return on the investment is ten percent, the annual income producing potential for the dry property is $25,000. If the fair market value of the property when zoned wet is $300,000, then the annual income producing potential for the wet property is $30,000. The annual loss in income producing potential due to the improper zoning would be $5,000 and the total loss would be eight times that amount, or $40,000.

Although Redner presented evidence of other costs he incurred, those expenses are not recoverable. See Wheeler, 833 F.2d at 270. Specifically, Redner is not entitled to lost income from a lease agreement that had been conditioned on the restoration of the wet zoning; to the costs he incurred for taxes, utilities, and insurance on the property during the temporary taking; or to engineering, architectural, and construction costs incurred remodeling the premises for his personal use as an office building.

The large dollar amount of the verdict against the City, $493,256.15, reflects that the jury improperly awarded the total of Redner’s loss of rental income under the lease agreement calculated over the time of the taking and a significant portion of the costs of maintaining and developing the property. The trial court’s instruction on damages failed to properly instruct the jury as to the appropriate award of damages. Accordingly, we reverse the final judgment and remand for a new trial.

Reversed and remanded.

KELLY, J„ Concurs. .

GREEN, OLIVER L., Senior Judge, Dissents with opinion.

GREEN, OLIVER L., Senior Judge,

Dissenting.

I respectfully dissent. The theory of the majority regarding the proper measure of damages is based on Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th Cir.1987). The facts of Wheeler are as follows:

In 1978, Cliff Development Corp. (Cliff Development) contracted with Joseph and Clarice Wheeler (the "Wheelers) to buy a parcel of land in Pleasant Grove, Alabama[,] for the sum of $160,000. Cliff Development planned to build a 120-unit apartment complex on the site. Pursuant to the contract, Cliff Development made a downpayment of $1,000 to the Wheelers. After finding that the proposed land use complied with applicable zoning ordinances, the Pleasant Grove Planning Commission issued a budding permit. ■ Cliff Development paid the city $6,165 for the permit and commenced work in preparation for construction.
Strong community opposition to the proposed development soon arose. Two mass public meetings were held, followed by a referendum in which a majority of the citizens of Pleasant Grove expressed opposition to construction of the apartments. In the wake of the referendum, the City Council in July 1978 passed Ordinance No. 216, which outlawed construction of apartment complexes in Pleasant Grove.
Cliff Development and the Wheelers brought suit in the district court against the City of Pleasant Grove and seven city officials, alleging violations of the fifth and fourteenth amendments. They sought damages as well as declaratory and injunctive relief.

838 F.2d at 268 (footnote omitted).

The court in Wheeler was dealing with the claim of owners of undeveloped land. In the instant case, we have a lost income claim founded on an existing business. If the apartment complexes in Wheeler had already been built and leased when their use was barred by rezoning, the situation would have been similar to the one at hand. In such a circumstance, it is hard to imagine that the Eleventh Circuit would not have based the measure of damages on the existing leases, which could no longer be honored.

The Wheeler court determined that the measure of the landowners’ damages was the “market rate return computed over the period of the temporary taking on the difference between the property’s fair market value without the regulatory restriction and its fair market value with the restriction.” Id. at 271. The court concluded that this method incorporated lost rental profits. Any loss under the apartment leases was purely speculative since the apartments had not been built. Thus, the market rate return theory makes sense in a situation such as Wheeler where the land was undeveloped.

At trial, the City of Tampa requested, based on Wheeler, that the jury be instructed that the measure of Mr. Redner’s damages “should be the market rate of return, computed over the period of the temporary taking, on the difference between the property’s fair market value with wet zoning and its fair market value without the wet zoning at the time of the taking.” Using this theory, the City’s appraisal expert, Lee Pallardy, testified that Mr. Redner’s damages for eight years’ deprivation amounted to the sum of $10,700. The City objected to the trial court’s instruction to the jury that the measure of damages “is the loss of income producing potential” over the period of the wrongful rezoning.

The majority agrees that the market rate of return is not the proper method of calculating damages in the instant case. However, the majority holds that the measure of damages is not “the amount of all income lost while the property sat vacant for a period of time” but, rather, the “reduction in the income producing potential.” This is, in essence, the same measure of damages as the “loss in income producing potential” instruction given by the trial court. The majority then comes up with an artificial method for determining the reduction in the income producing potential.

On appeal, the City argues that the trial court’s “loss of income producing potential” instruction was error and that the trial court should have given the market rate of return instruction. The City did not argue that the evidence was insufficient to support the damages awarded under the “loss of income producing potential” theory but, rather, that this was the wrong measure of damages. The City did not make the argument that the theory for calculating the reduction in income producing potential enunciated by the majority was the correct measure of damages under the instruction given by the trial court. Any such argument was waived by the City, and I disagree with the majority’s providing relief to the City and reversing and remanding for a new trial on damages based on a theory that was never raised.

I fail to see that the majority’s theory for calculating damages is authorized by Wheeler. The theory appears to be over-elaborate where, in this case, the one-year lease with a five-year option for the property in question was introduced into evidence. The lessee backed out of the lease upon learning that the wet zoning had been revoked. The lessee, Richard Cal-derone, testified that the bar that had been operating on the property was a very successful enterprise. He indicated that he would have acted on the opportunity to run it.

In Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc., 570 So.2d 892, 895 (Fla.1990) (an inverse condemnation suit and not a regulatory taking as is the case here), the supreme court, in regard to the methodology for just compensation, had this to say: “As this Court stated in Dade County v. General Waterworks Corp., 267 So.2d 633, 639 (Fla.1972), ‘[t]he conclusion to be drawn is simply that the proper valuation method or methods for any given case are inextricably bound up with the particular circumstances of the case.’ ”

Mr. Redner testified that he was unable to successfully rent the property and that he eventually converted it to offices. For my part, given the particular circumstances of this case, I feel that the “loss of income producing potential” can be calculated by the amount lost on the lease over the time period in question minus the amount by which Mr. Redner was able to minimize his damages by renting the property. It is not unreasonable to assume that the lessee would have taken up the lease option since he testified that the bar business was successful. Mr. Redner also had to pay for the maintenance and upkeep of the property that would have been paid for by the lessee.

In sum, because the theory upon which the majority granted relief was not argued by the City and because the majority’s theory of damages is not appropriate, I would affirm.

      . The City also argues that the damages award is improper because the rezoning of the property was not a compensable taking. The City further argues that even though this issue was not raised below, it is fundamental and can be raised for the first time on appeal. Although we agree that the argument may be fundamental, it should have been raised on the appeal of the final summary judgment that affirmed the trial court's determination that the City did make such a taking. Since it was riot raised at the earlier appeal, we consider it waived.

      . These numbers are chosen for illustrative purposes only and do not reflect the testimony presented in this case.


author: PER CURIAM.

text:
    Alicia LATRAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-210.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Rehearing and Rehearing En Banc Denied Aug. 20, 2003.

      Gustavo J. Garda-Montes, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

The defendant, Alicia Latras, appeals from her convictions and sentences. We affirm.

While the defendant has raised numerous points on appeal, only two merit discussion. The defendant contends that the trial court erred by denying her motion to suppress because the search warrant was not supported by probable cause. We disagree.

A review of the record indicates that the search warrant was supported by probable cause as established by the redacted affidavit. Under the “totality of the circumstances test,” the magistrate issuing the search warrant had a substantial basis for concluding that probable cause existed. See Vazquez v. State, 491 So.2d 297, 299 (Fla. 3d DCA 1986)(citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

The defendant also contends that the cumulative effect of errors during the State’s closing argument denied the defendant her right to a fair trial. We disagree.

In order for the prosecutor’s comments to merit a new trial, the comments must be of such nature:
(1) so as to deprive appellant of a fair and impartial trial;
(2) materially contribute to his conviction;
(3) be so harmful or fundamentally tainted so as to require a new trial; or
(4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than that which they would have reached otherwise.

Lopez v. State, 555 So.2d 1298, 1299 (Fla. 3d DCA 1990) (citations omitted). In the instant case, a careful review of the record shows that the State’s comments during closing argument were not so egregious as to constitute fundamental error, thus not rising to the level of warranting a new trial.

Affirmed.


text:
    T.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5006.
    District Court of Appeal of Florida, First District.
    June 26, 2003.
    Rehearing Denied Aug. 19, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant, a juvenile, was charged with battery by an inmate in a juvenile facility. Because Appellant was held in a juvenile facility, Appellant argued that the crime of simple battery could not be enhanced from first degree misdemeanor to a third degree felony because section 784.082(3), Florida Statutes (2002), does not apply to a child detained in a juvenile facility. The trial court found that this enhancement statute applied to a juvenile detention center and denied the motion to dismiss. We disagree, and remand with directions.

Nothing in section 784.082 indicates that the statute applies to juveniles held in juvenile facilities. Accordingly, we reverse the adjudication of delinquency for battery as a third degree felony and remand for entry of a judgment for simple battery, a first degree misdemeanor.

REVERSED and REMANDED.

ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.

      . Appellant pleaded no contest while preserving the right to appeal the denial of the motion to dismiss. On November 20, 2002, Appellant was adjudicated delinquent and committed to moderate risk.


author: VILLANTI, Judge.

text:
    Ronald G. WENDEL, Appellant, v. Cindy H. WENDEL, Appellee.
    Nos. 2D01-292, 2D02-2301.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
    Rehearing Denied Aug. 14, 2003.

      Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    Ralph L. Gonzalez of The Yerrid Law Firm, Tampa, for Appellee.
   VILLANTI, Judge.

Ronald G. Wendel (the Former Husband) appeals two orders arising from postjudgment litigation regarding the dissolution of the Former Husband’s marriage to Cindy H. Wendel (the Former Wife). We reverse both orders and remand for further proceedings.

The Former Husband and the Former Wife were divorced in 1994 pursuant to a final judgment of dissolution of marriage. The final judgment incorporated the parties’ marital settlement agreement (MSA). Pursuant to the terms of the MSA, the Former Husband had primary residential custody of the parties’ two minor daughters, and the Former Wife paid child support based on the statutory guidelines amount less forty percent.

In addition to the child custody and child support provisions, the M.S.A. contained two provisions dealing with enforcement and modification actions. Paragraph XIV of the M.S.A. provided:

XIV. MEDIATION OF DISPUTES.
Any disagreement between the parties respecting any decision affecting the children or about the interpretation of this agreement or about the modification of this agreement will be resolved by mediation before taking legal action. Expenses for such mediation or legal action shall be shared equally by the parties.

Paragraph XV of the M.S.A. provided:

XV. MISCELLANEOUS
C. Should either party employ an attorney or attorneys to enforce any of the provisions hereof, or to protect its interest in any matter arising under this agreement, or to recover damages for the breach of this agreement, the party prevailing shall be entitled to recover from the other party, all reasonable costs, charges and expenses, including attorney’s fees and costs, extended or incurred in connection therewith including through any appeal.

In 1998, the Former Husband filed a motion for contempt against the Former Wife based on her alleged failure to pay child support as agreed. The Former Husband’s motion sought $27,300 in child support arrearages. In response to this motion, the Former Wife filed a petition seeking modification of child custody and guidelines child support from the Former Husband. The Former Husband then filed a counterpetition for modification of child support. In their respective petitions, both parties sought an award of attorney’s fees. After an evidentiary hearing, the trial court granted the Former Wife’s petition for modification of child custody and transferred primary residential custody of the two children to the Former Wife. The trial court also imputed income to the Former Husband and calculated his child support obligation based on that imputed income. Finally, the trial court denied the Former Husband’s motion for contempt but awarded him $14,567 in past due child support.

The Former Husband appealed the trial court’s order. Both parties sought attorney’s fees on appeal pursuant to the terms of the MSA. This court affirmed the change in residential custody and the award of past due child support. Wendel v. Wendel, 805 So.2d 913 (Fla. 2d DCA 2001) (Wendel I). However, this court reversed the imputation of income to the Former Husband, finding that the evidence did not support the amount of income imputed. This court remanded the case to the trial court for a new hearing on the Former Husband’s child support obligation. Addressing the attorney’s fee motions, this court awarded the Former Husband attorney’s fees as the prevailing party on the issue of child support. This court also awarded the Former Wife attorney’s fees as the prevailing party on the issue of child custody.

While Wendel I was pending in this court, the trial court held a hearing on the parties’ claims for attorney’s fees incurred in obtaining the child custody and support ruling that was then on appeal. At the hearing, the Former Husband argued that his action for past due child support was an enforcement action subject to paragraph XV of the MSA, that he was the prevailing party on that issue, and that he was entitled to an award of his attorney’s fees for litigating the child support issue. He also argued that the Former Wife’s child custody petition was a modification action subject to paragraph XIV and that the parties should therefore share the attorney’s fees for that action. In contrast, the Former Wife argued that both actions were enforcement actions subject to paragraph XV. She argued that she had prevailed on the child custody issues and that the Former Husband had not prevailed to any significant degree on the child support issue. Therefore, the Former Wife argued that she was entitled to an award of the entire amount of her attorney’s fees as the prevailing party and that the Former Husband was entitled to no fee award. The trial court agreed with the Former Wife, awarding her the full amount of her attorney’s fees and denying the Former Husband’s motion for fees. In case number 2D01-292, the Former Husband appeals this order on attorney’s fees.

Following this court’s issuance of mandate in Wendel I, the Former Wife scheduled a new evidentiary hearing on the issue of child support and imputation of income to the Former Husband. At the hearing, the Former Wife presented the testimony of her economic expert, Dr. Mellish. Dr. Mellish testified that a reasonable amount of income to be imputed to the Former Husband would be $120,000 to $150,000 based on the Former Husband’s age, legal education, and employment experience. Dr. Mellish based his opinion on job salary information that he had obtained from Internet research and other sources addressing Tampa Bay area earnings and job openings. Dr. Mellish admitted that he did not contact any of the employers he identified to determine whether they would be interested in hiring the Former Husband, and he offered no testimony regarding the salaries for the Internet job advertisements he located.

The Former Husband testified that he had earned $65,000 in 1994 as a lawyer with the Tew Zinober law firm but that the firm unilaterally reduced his salary to $50,000 in 1995. The Former Husband testified that he voluntarily left Tew Zino-ber in 1995 to take a better paying position with Raymond James. He was subsequently asked to leave his job with Raymond James, and he was terminated from a management level position with a subsequent employer due to that company’s poor financial condition. He testified that he entered the real estate sales field in 2000 because he could not find other employment and felt that he would have more control over his continuing employment in that field. He testified that he has continually tried to obtain better paying jobs, including applying for attorney positions, banking positions, human resources positions, and customer relations positions. He sent out sixty to eighty resumes in 2001 without receiving a single response. The Former Husband admitted that his income had declined since 1995 but testified that it was starting to come back up from a low of $400 in 2000 — his first year in real estate sales — to a net of $18,671 in 2001.

As to the amount of child support, the Former Husband argued that he should be entitled to the same forty percent reduction from the child support guidelines amount that the Former Wife had been enjoying since 1994. The Former Wife argued that the Former Husband should not be entitled to this reduction. She sought the full guidelines amount based on the income imputed to the Former Husband as well as the five percent differential allowed by the child support statute.

After considering this evidence, the trial court imputed $65,000 annual income to the Former Husband based on its finding that he “has the earning capacity at least equal to that which he had been earning at the Tew, Zinober law firm, which employment he voluntarily left to find a better job.” The trial court refused the Former Husband’s request to decrease the guidelines child support amount by forty percent because he spent “just less than 40% of the overnights” with his children. Finally, the trial court awarded collateral relief by requiring each party to pay fifty percent of the uninsured medical expenses, changing the parties’ IRS exemptions retroactive to March 2000, and requiring the Former Husband to maintain $50,000 in life insurance coverage as security for his child support obligation. In case number 2D02-2301, the Former Husband appeals this order.

ATTORNEY’S FEE ORDER — CASE NUMBER 2D01-292

In the appeal of the attorney’s fee order, the Former Husband argues that the trial court erred in interpreting and applying paragraphs XIV and XV of the MSA. The Former Husband contends that there are two attorney’s fee provisions in the MSA — paragraph XIV which requires the parties to split fees in modification actions and paragraph XV which awards fees to the prevailing party in enforcement actions. He argues that the trial court erred in refusing to award prevailing party attorney’s fees to him under paragraph XV for his child support enforcement action. He also argues that the trial court erred in awarding the Former Wife her attorney’s fees as the prevailing party because her action was a modification action subject to paragraph XIV and so was subject to the fee-sharing provision of that paragraph.

The Former Wife contends that paragraph XIV does not include a provision for attorney’s fees, and thus the only attorney fee provision in the M.S.A. is paragraph XV. She argues that the trial court properly awarded her attorney’s fees because she was the prevailing party on the majority of the issues in the underlying litigation. While we agree with the Former Wife’s interpretation of paragraph XIV, we disagree with the trial court’s application of paragraph XV to the facts of this case.

Paragraph XIV of the M.S.A. provides, in pertinent part, “Expenses for such mediation or legal action shall be shared equally by the parties.” There is no reference to attorney’s fees anywhere in paragraph XIV. Thus, simply from the face of the provision, the trial court did not err in rejecting the Former Husband’s argument that paragraph XIV controlled the issue of attorney’s fees in the modification action.

In an effort to avoid the plain language of paragraph XIV, the Former Husband argues that the term “expenses” should be interpreted to include attorney’s fees. This argument has no merit for two reasons. First, contractual provisions concerning attorney’s fees must be strictly construed. See Pici v. First Union Nat’l Bank of Fla., 705 So.2d 50, 51 (Fla. 2d DCA 1997); Venetian Cove Club, Inc. v. Venetian Bay Developers, Inc., 411 So.2d 1323, 1324 (Fla. 2d DCA 1982). Here, a strict construction of paragraph XIV precludes any award of attorney’s fees because fees are not even mentioned in the paragraph.

Second, like the term “costs,” the term “expenses” is not generally construed to include attorney’s fees absent an express contractual provision that defines expenses to include fees. Cf. Rose Printing Co. v. Wilson, 602 So.2d 600, 603 (Fla. 1st DCA 1992) (“Although ... the term 'costs’ is not generally understood to include such [attorney’s] fees, it has long been clear that when a statute or contractual agreement defines costs to include attorney’s fees, the fees should be taxed just like other costs ....”) (citation omitted); see also O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998) (holding that the term “costs” is not generally understood to include attorney’s fees absent an express contractual provision), abrogated on other grounds, Caufield v. Cantele, 837 So.2d 371 (Fla.2002); Zosman v. Schiffer/Taxis, Inc., 697 So.2d 1018 (Fla. 3d DCA 1997) (holding that “costs” do not usually include attorney’s fees).

To avoid the general rule, the Former Husband argues that the last sentence of paragraph XV(C) defines “expenses” to include attorney’s fees. While the last sentence of paragraph XV(C) certainly clarifies that the parties meant to include attorney’s fees in that paragraph, it cannot be construed as a definition of “expenses” that should be applied across the entire MSA, and there is nothing to indicate that the parties intended the definition in paragraph XV(C) to be incorporated into paragraph XIV. If the parties intended to allow for the recovery of attorney’s fees under paragraph XIV, they would have included the same language in paragraph XIV that was included in paragraph XV. The fact that attorney’s fees are specifically mentioned in paragraph XV but omitted in paragraph XIV militates against any finding that paragraph XIV was intended to include attorney’s fees. Therefore, we decline the Former Husband’s invitation to read a provision for attorney’s fees into the term “expenses.”

Because paragraph XIV does not specifically provide for the recovery of attorney’s fees, the only attorney’s fees provision that is available to the parties is the prevailing party fee provision of paragraph XV. Accordingly, the trial court did not err in awarding attorney’s fees on a prevailing party basis. However, the trial court did err when it applied this provision to the underlying judgment.

In the order awarding attorney’s fees, the trial court awarded the Former Wife all of her fees, finding that she was the prevailing party on all of the significant issues in the underlying litigation. The trial court refused to award the Former Husband any of his attorney’s fees, finding that he was not the prevailing party because he was awarded only half of the amount of past due child support that he sought. The Former Husband contends that this was error, pointing out that he obtained significant relief on the child support issue. He also contends that the Former Wife did not prevail on-all of the issues she raised, and therefore she should, not have received all of her attorney’s fees.

Resolution of this issue is controlled by this court’s ruling on attorney’s fees in Wendel I. Under the law of the case doctrine, questions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings. Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); Dade County Classroom Teachers’ Ass’n v. Rubin, 238 So.2d 284, 289 (Fla.1970); Dicks ex rel. Montgomery v. Jenne, 740 So.2d 576, 577 (Fla. 4th DCA 1999).. This includes questions of law that were implicitly addressed or necessarily considered. Juliano, 801 So.2d at 106; Rubin, 238 So.2d at 289; Dicks, 740 So.2d at 578.

In this case, this court “necessarily considered” the issue of the interpretation and application of paragraph XV when this court entered its orders on appellate attorney’s fees in Wendel I. In Wendel I, this court awarded appellate fees to the Former Husband as the prevailing party on the child support issues and to the Former Wife as the prevailing party on the child custody issue. While the appellate fee orders do not contain that panel’s reasoning for these awards, this court “necessarily considered” and apparently rejected the Former Wife’s argument that the Former Husband did not prevail on any of the issues in the underlying litigation.

While the trial court did not have the benefit of this court’s rulings on appellate fees when it entered the attorney’s fee order currently on appeal, this court’s rulings have now become the law of the case on this issue. Thus, the Former Husband is entitled to an award of attorney’s fees as the prevailing party on the child support issues. The Former Wife is entitled to an award of attorney’s fees as the prevailing party on the child custody issues. Accordingly, we reverse the judgment for attorney’s fees and remand for further proceedings on this issue.

CHILD SUPPORT ORDER — CASE NUMBER 2D02-2301

As to the post-Wendel I child support order, the Former Husband contends that the trial court erred in imputing $65,000 in income to him for purposes of calculating his child support obligation. We agree.

Section 61.30(2)(b), Florida Statutes (2001), requires the trial court to impute income to an unemployed or underemployed parent “when such employment or underemployment is found to be voluntary on that parent’s part.” This requires a finding that the parent is capable of earning more by the use of his or her best efforts. Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997); Gildea v. Gildea, 593 So.2d 1212, 1213 (Fla. 2d DCA 1992); Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991). Implicit in this finding is a determination that the parent is not currently using his or her best efforts to obtain employment. Cushman, 585 So.2d at 486; Greene v. Greene, 547 So.2d 1302 (Fla. 2d DCA 1989). The trial court’s finding that the parent is underemployed must be based on evidence presented at the hearing.

Here, the trial court’s finding that the Former Husband was voluntarily underemployed was not supported by the evidence presented at the hearing. The evidence established that the Former Husband was employed by Tew Zinober at a salary of $65,000 in 1994. In 1995, his salary was unilaterally reduced by the firm to $50,000. The Former Husband then secured a higher paying position with Raymond James and left Tew Zinober for that position. However, the Former Husband was later fired from that job and downsized out of a subsequent job. Since that time, the Former Husband has diligently sought work in the banking, legal, and financial sectors. He has now obtained a position in real estate sales, and his income has begun to increase steadily; however, his most recent earnings are only $20,000 per year. The Former Wife presented absolutely no evidence to establish that the situation was other than as testified to by the Former Husband. While the Former Wife argued to the trial court that the Former Husband had made these job changes in an effort to avoid his child support obligations, these job changes occurred when the Former Husband had residential custody of the children and was receiving, not paying, child support. Thus, the trial court’s finding that the Former Husband is voluntarily underemployed is not supported by any evidence in the record. Without any evidence to support this finding, the trial court had no basis upon which to impute income to the Former Husband. Cf. Gildea, 593 So.2d at 1213 (holding that it was error to impute income to former husband who had been involuntarily terminated from his last job, who had been seeking reemployment, but who had not been hired despite various interviews); Lee v. Lee, 751 So.2d 741, 744 (Fla. 1st DCA 2000) (reversing child support award based on imputed income because the evidence showed that the former husband had been fired from his last job and had been unsuccessful in obtaining employment despite various interviews).

In addition, if the trial court decides to impute income, it must consider the parent’s “recent work history, occupational qualifications, and prevailing earnings level in the community.” § 61.30(2)(b), Fla. Stat. (2001); see also Cushman, 585 So.2d at 486. It is error for a trial court to use outdated income figures when determining what level of income to impute to a parent. See Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003); Hanley v. Hanley, 734 So.2d 529 (Fla. 4th DCA 1999). Here, the trial court used the Former Husband’s gross income from 1994— eight years prior to the hearing. Clearly, it was error to use this outdated figure.

Further, while the Former Wife did present evidence of the prevailing earnings level in the community, she did not present any evidence that there were positions available at that earnings level or that the Former Husband was qualified for any available positions. Dr. Mellish testified that the Former Husband should be able to earn $120,000 per year based on his experience and training as an attorney. Dr. Mellish then testified that there were “numerous job openings” in the Tampa area for attorneys. However, Dr. Mellish did not testify that any of those “numerous job openings” were seeking someone of the Former Husband’s age, experience, and training, whether any of those “numerous job openings” were paying $120,000 (or $65,000 for that matter), or whether the Former Husband was qualified for any of the “numerous job openings.” In the absence1 of some evidence establishing that there were legal positions available seeking someone of the Former Husband’s age, experience, and training and paying $65,000 per year, there was insufficient evidence to support the trial court’s imputation of income to the Former Husband. Cf. Iglesias v. Iglesias, 711 So.2d 1316 (Fla. 2d DCA 1998) (holding that it was error to impute income to former husband based on roofing jobs listed in newspaper when there was no evidence to establish that any of the jobs were actually available to the former husband or what the specific rate of pay would be).

Moreover, there is no evidence in the record that would support the amount of income the trial court imputed to the Former Husband. Dr. Mellish testified that the Former Husband should be able to earn $120,000 based on his experience and training. The Former Husband testified that he was unable to get a job in his field and that he was currently earning approximately $20,000 as a real estate salesperson. No one testified that $65,000 was a reasonable amount of income to impute to the Former Husband. Section 61.30(2)(b) requires the trial court to consider evidence of recent work history, occupational qualifications, and the prevailing earnings level in the community. The trial court is not at liberty to simply select an income amount it believes to be reasonable when that amount is not based on evidence presented by the parties at an evidentiary hearing.

Because the trial court’s finding that the Former Husband was voluntarily underemployed was not based on substantial, competent evidence and because there was no evidence that any of the “numerous job openings” testified to by Dr. Mellish were actually available to the Former Husband, the trial court erred in imputing income to him. Accordingly, we reverse the child support awarded based on the imputed income and remand for the trial court to calculate child support based on the Former Husband’s current income and employment. Because the Former Husband’s income as a real estate salesman appears to be steadily increasing, the trial court should also reserve jurisdiction to consider any future motions based on changes in the Former Husband’s income level. See Ritter, 690 So.2d at 1375; Gildea, 593 So.2d at 1213.

COLLATERAL RELIEF — CASE NUMBER 2D02-2S01

Because we are remanding for a new hearing on child support, we address two other issues raised by the Former Husband. First, we reject the Former Husband’s contention that the trial court is required by the M.S.A. to give him a forty percent reduction from the amount of child support due pursuant to the statutory child support guidelines. Child support is a right belonging to the child. Fox v. Haislett, 388 So.2d 1261, 1266 (Fla. 2d DCA 1980) (quoting Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979)). Parents may not waive or contract away a child’s right to child support. Gammon v. Cobb, 335 So.2d 261, 266-67 (Fla.1976); Wilkes v. Wilkes, 768 So.2d 1150, 1151 (Fla. 2d DCA 2000); Fox, 388 So.2d at 1266. This does not prevent the parents from making agreements concerning child support as long as the agreements serve the best interests of the child. Fox, 388 So.2d at 1266; Lester v. Lester, 736 So.2d 1257, 1259 (Fla. 4th DCA 1999); Brock v. Hudson, 494 So.2d 285, 287 (Fla. 1st DCA 1986). However, if the parents make such an agreement, it will be recognized by the court only if the best interests of the child are fully served by the terms of the agreement. Fox, 388 So.2d at 1266; Lester, 736 So.2d at 1259. Thus, the trial court has an independent obligation to determine whether the child’s best interests are served by the parents’ agreement concerning their child support obligations.

When the M.S.A. was incorporated into the final judgment of dissolution in 1994, the trial court apparently determined that the forty percent reduction in the Former Wife’s child support obligation was in the best interests of the children. However, that nine-year-old agreement between the Former Husband and the Former Wife does not reheve the current trial court of its obligation to determine whether the child’s best interests are now served by allowing that same reduction in the Former Husband’s child support obligation. Therefore, on remand, the trial court is not required to reduce the guidelines child support obligation by forty percent as provided by the MSA. Rather, the trial court must consider this agreement as but one factor in determining the amount of child support due from the Former Husband.

Finally, as the Former Wife conceded at oral argument, the trial court erred in ordering various collateral relief that neither party sought. A trial court may not modify any child support provisions sua sponte. Rather, proposed modifications must be properly pleaded and notice must be given so that the opposing party has an opportunity to respond. Manning v. Varges, 413 So.2d 116, 117 (Fla. 2d DCA 1982); Dey v. Dey, 838 So.2d 626 (Fla. 1st DCA 2003).

Here, the Former Wife did not file any motion or other pleading seeking a change in the allocation of uninsured medical bills, a change in the IRS dependency exemptions, or a change in the Former Husband’s life insurance obligation. Further, no notice was given for any of these changes, and the Former Wife made no such arguments to the trial court. Therefore, the trial court erred in making these changes sua sponte.

CONCLUSION

We reverse the order awarding attorney’s fees in case number 2D01-292 and the order concerning child support and collateral relief in case number 2D02-2301 and remand the cases to the trial court for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

SALCINES and DAVIS, JJ„ Concur.

      . The parties dispute the reason for incorporating this forty percent reduction into the MSA. Because our resolution of this case renders the reason for this reduction irrelevant, we decline to address this dispute.

      . During the pendency of this case, the parties’ older daughter turned eighteen. Therefore, the question on remand will be the proper amount of child support for one child only.


author: GRIFFIN, J.

text:
    Chutney OXENDINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1623.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Rehearing Denied Aug. 19, 2003.
    Chutney Oxendine, Daytona Beach, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant appeals the summary denial of his Rule 3.800(a) motion to correct illegal sentence. In St. Johns County, three of appellant’s cases were consolidated, and appellant entered nolo contendere pleas to all charges including two separate offenses of felony driving while license suspended, revoked or cancelled (“DWLS”). Appellant now claims that he should not have been convicted of these felonies because one of the prior DWLS misdemeanor convictions should not have been used to reclassify the current offenses to felonies. Appellant asserts that his prior offense was committed under a previous statutory version of DWLS which did not require “knowledge” as an element. See generally Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000).

Rule 3.800(a) provides a remedy for the correction of illegal sentences. Appellant’s argument is an attack on his DWLS convictions as he claims he should have been convicted of misdemeanors, not felonies. Because appellant entered nolo contendere pleas to two felony DWLS charges, this issue was waived. Appellant’s remedy would have been a timely 3.850 motion alleging involuntary plea based on ineffective assistance of counsel. See Caples v. State, 790 So.2d 1143 (Fla. 5th DCA 2001).

AFFIRMED.

SHARP, W., and PETERSON, JJ., concur.

      . Appellant mistakenly characterizes his motion to correct illegal sentence as being filed pursuant to "Rule 3.850(a)." The instant motion could not be treated as a 3.850 motion as it would be untimely. Appellant’s direct appeal resulted in an affirmance, the mandate issuing on Februaty 9, 2001. (Appeal No. 5D00-1619). Appellant’s motion was "filed” under the mailbox rule more than two years later on April 9, 2003. See Fla. R.Crim. P. 3.850(b).


text:
    Michael J. ZWICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1850.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    Rehearing Denied Aug. 7, 2003.
    Michael J. Zwick, Daytona Beach, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10 (Fla.1978).

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Kenneth G. GEARHART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2287.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Robert Augustus Harper and Michael Robert Ufferman of the Robert Augustus Harper Law Firm, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

WOLF, C.J., and WEBSTER, JJ., concur.

BENTON, J., dissents.