HERMINE BURROWS, APPELLANT,
v.
MICHAEL C. BURROWS, APPELLEE

Fla. 4th DCA | 1980-06-11
No. 78-1348
MOORE and HURLEY, JJ., concur.
384 So. 2d 1312 Florida District Court of Appeal, Fourth District (1980) Positive Treatment
Cited by 6 cases

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Synopsis

A former wife appeals a trial court's modification of child support, challenging an increase from $133.33 to $200 per month for their youngest child despite the ex-husband's substantial increase in wealth since the 1965 divorce decree. The appellate court affirms, applying the discretionary "reasonableness" standard established in Canakaris v. Canakaris and finding the trial judge's decision reasonable.


Holding

The trial court did not abuse its discretion in modifying child support to $200 per month. Applying the reasonableness standard from Canakaris v. Canakaris, the appellate court found that reasonable persons could reach the trial judge's conclusion after viewing the parties and the circumstances involved.


Headnotes

[1] A trial court's discretionary ruling should be disturbed on appeal only when it fails the reasonableness test, meaning reasonable minds could not differ as to its proprie…

[2] Appellate courts must recognize the superior vantage point of the trial judge when reviewing discretionary acts and apply a reasonableness test to determine abuse of disc…

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Key Quotes

“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.”

Establishes the governing standard for appellate review of discretionary trial court decisions in child support modifications

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Facts & Procedural History

The parties divorced in 1965 when both were financially struggling; the husband was ordered to pay $400 per month in child support for three children.…

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Opinion of the Court
BERANEK, Judge.

BERANEK, Judge.

The former wife appeals from a final order entered pursuant to former husband’s petition and her counter-petition for modification of the child support provisions of their 1965 dissolution decree. The parties were married at a time when their financial situations were poor. Upon their divorce in 1965, the wife was awarded custody of the parties’ three minor children, and, pursuant to an agreement, the husband was ordered to pay child support of $400 per month. At that time, the wife was unemployed and without assets and husband was near bankruptcy with minimal income. After the divorce, the financial condition of both parties substantially improved. The husband became a very successful real estate developer with income and capital assets sufficient to pay any reasonable amount of child support. The wife secured a job making approximately $20,000 per year. She remarried and was again divorced. At the time of the modification hearing, she had savings of $45,000 cash plus a $45,000 four-bedroom home in which she resided with the one child whose support is in issue here. The home was encumbered by a $15,000 mortgage and wife had no other substantial debts.

Prior to the instant modification proceedings two of the parties’ three children began either living with the father or attending college full time. It is undisputed that the father supported these two children living away from the mother’s home and continued to pay the $400 per month child support to the wife. Peter Burrows, their youngest child, resided with the wife and is the only child whose support is in dispute. The present controversy concerns the amount of child support the husband should pay on behalf of Peter. It is unquestioned that the father voluntarily provided financial assistance in regard to Peter, including summer camp, clothes and vacation trips. After the hearing, the trial court set child support for Peter in the sum of $200 per montlj, an increase of $66.67 per month from the $133.33 per month which the trial court found represented Peter’s proportionate share of the originally agreed upon $400 per month.

Although Meltzer v. Meltzer, 356 So. 2d 1263 (Fla.3d DCA 1978), cert. denied 370 So. 2d 460 (Fla.1979), relied upon by appellant, presents a very similar factual situation, we do not find it controlling. Since the Meltzer decision, the Supreme Court issued its decision in Canakaris v. Canakaris, 382 So. 2d 1197 (1980), broadening the trial court’s discretion and defining the scope of appellate review thereof as follows:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. (Emphasis supplied.) Canakaris v. Canakaris, supra.

While the amount of the increase of child support ordered here was admittedly small, we cannot say that no reasonable man could reach the conclusion of the trial court after viewing the parties and the subtleties involved. The order below is, therefore, affirmed.

AFFIRMED.

MOORE and HURLEY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)
    …ccurred in cases involving requests for the modification of prior alimony awards, see Parkhurst v. Parkhurst, 413 So. 2d 853 (Fla. 4th DCA 1982); Veach v. Veach, 407 So. 2d 308 (Fla. 4th DCA 1981), prior child support awards, see Burrows v. Burrows, 384 So. 2d 1312 (Fla. 4th DCA 1980), or both, see Brooks v. Brooks, 423 So. 2d 995 (Fla. 3d DCA 1982); Rhoades v. Rhoades, 416 So. 2d 1233 (Fla. 1st DCA 1982); Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980), it has yet to be applied explicitly to…
  • Kaylor v. Kaylor, 390 So. 2d 752 (Fla. 4th DCA 1980)
    …anakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), requires of an appellate court when reviewing a true discretionary act such as an award of alimony to affirm the trial judge unless the latter’s decision is unreasonable. Accord, Burrows v. Burrows, 384 So. 2d 1312 (Fla. 4th DCA 1980). Sub judice, in light of the fact that the wife’s treating psychiatrist testified that one of the aims of counseling was to enable the wife to cope with the pressures of a job and that such was a realistic possibility in the futu…
  • Margerie Green v. Green, 501 So. 2d 1306 (Fla. 4th DCA 1986)
    …eversed. Appellee sought rehearing en banc, contending affirmance was necessary to maintain uniformity in this court’s decisions. The bases for the alleged conflict were Beville v. Beville, 415 So. 2d 151 (Fla. 4th DCA 1982), and Burrows v. Burrows, 384 So. 2d 1312 (Fla. 4th DCA 1980). Since commencing consideration en banc we have had the benefit of the supreme court's opin [*1307] ion in Noah v. Noah, 491 So. 2d 1124 (Fla.1986), which was not available to either the trial judge or the original panel. We gran…

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