Davis v. Department of Health & Rehabilitative Services

390 So. 2d 1194, 1980 Fla. LEXIS 4443

Opinion

PER CURIAM.

We do not have jurisdiction in this case. The trial court specifically refrained from passing on the constitutionality of § 742.041(2), Fla.Stat. (1977). It then ordered the father to pay support pursuant to § 742.041(1), Fla.Stat. (1977). The Fourth District Court of Appeal transferred this case upon appellant’s motion which asserted that the trial court initially and directly passed upon the constitutionality of the statute. Even under the inherency doctrine, the constitutional challenge must have been to a controlling statute and the decision as to the statute’s validity necessary to the determination of the case. Harrell’s Candy Kitchen, Inc. v. Sarasota Manatee Airport Authority, 111 So.2d 439 (Fla.1959). The cause is transferred to the district court of appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.