RUSSELL D. DEATHERAGE, APPELLANT,
v.
LILLIAN F. DEATHERAGE, APPELLEE
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In this marriage dissolution appeal, the husband challenged a modification order that increased child support from $100/month to $52.16/week and awarded attorney's fees to the wife. The court reversed both the child support increase and attorney's fees award, finding insufficient evidence of substantial change in circumstances and equal financial footing between the parties.
The court held that absent evidence of substantial, material, involuntary, and permanent change in circumstances, child support based on an agreement cannot be modified, and attorney's fees cannot be awarded when spouses have equal ability to secure counsel.
[1] A substantial change of circumstances, including financial circumstances, is a fundamental prerequisite to the modification of child support payments.
[2] The party seeking modification of child support bears the burden of proving a substantial change in circumstances.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A fundamental prerequisite to modification of child support payments is a showing of substantial change of circumstances, including financial circumstances of one or both of the parties.”
Establishes the legal standard required before child support can be modified
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Join FLexlaw to unlock all legal intelligenceThe parties had entered into a property settlement agreement providing for $100 per month in child support. At the modification hearing, the father te…
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DAUKSCH, Chief Judge.
This is an appeal from an order modifying a final judgment in a marriage dissolution case. The final judgment incorporated a property settlement between the parties whereby the husband agreed to pay $100.00 a month for child support. The order modifying the final judgment increased the child support from $100.00 per month as agreed in the property settlement to $52.16 a week. Because the evidence is insufficient to support an increase in the amount of support the final judgment provided for the child, we reverse the order of modification.
A fundamental prerequisite to modification of child support payments is a showing of substantial change of circumstances, including financial circumstances of one or both of the parties. Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975). This change in circumstances must be significant, material, involuntary, and permanent in nature. In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). The party seeking modification has the burden of showing this change in circumstances. Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978). And where, as here the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. Scott v. Scott, 285 So. 2d 423 (Fla. 2d DCA 1973).
However, the matter of increase in child support payments is one largely within the sound judicial discretion of the trial court on consideration of the evidence.
Accordingly, the party who challenges the correctness of increased allowance of child support has the burden of demonstrating on the record an abuse of discretion. McKenna v. McKenna, 220 So. 2d 433 (Fla. 3d DCA 1969).
The father has met his burden of demonstrating an abuse of discretion. There was no evidence presented to the trial court that the father’s circumstances had changed in any way. The father testified that he is still making $8.02 an hour, working forty hours a week, has no other income, and the financial affidavit that he had previously filed with the court at the time of the dissolution accurately reflects his present expenses. Since the dissolution, the wife has sold the marital home she received as lump sum alimony. She has continued to be employed as a dental assistant earning $170.00 a week. Her only change in circumstance is that she is now required to pay $310.00 a month rent for a house.
The order modifying the final judgment is reversed as there is no evidence in the record of a substantial change in circumstances of the husband or wife.
The father also appealed the award of attorney’s fees to the appellee, claiming that she was in a financial situation equal to or better than that of appellant. The general rule is that the purpose in awarding attorneys’ fees is to ensure that both parties will reasonably have the same ability to secure competent counsel. Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973). It is error to award a spouse attorney’s fees if both spouses are on an equal footing to secure counsel. Id. at 693. An award of the fee is not to the benefit of counsel, but is for the equitable objective of putting a wife on substantially even terms with the husband. Keena v. Keena, 245 So. 2d 665 (Fla. 1st DCA 1971).
The record reveals that the appellant and appellee are on at least equal footing.
Therefore, it was error for the trial court to award the appel-lee attorney’s fees.
The order modifying child support and awarding the appellee attorney’s fees is reversed and the original final judgment is reinstated.
REVERSED.
ORFINGER and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Overbey v. Overbey, 698 So. 2d 811 (Fla. 1997)…isite to bringing an action to modify child support payments is a showing of substantial change of circumstances. Chastain v. Chastain, 73 So. 2d 66 (Fla.1954) (analysis in the context of alimony rather than child support); Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA 1981); Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975). However, under section 61.13(l)(a), a court that initially entered an order requiring a parent to pay child support has jurisdiction to modify the amount of that support under th…
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Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994)…al change in circumstances. This change in circumstances must be significant, material, involuntary, and permanent in nature, and the burden of establishing this change in circumstances is on the party seeking modification. Deatherage v. Deatherage, 395 So. 2d 1169, 1170 (Fla. 5th DCA), appeal dismissed, 402 So. 2d 609 (Fla.1981). Accord Haas v. Haas, 552 So. 2d 252, 253 (Fla. 4th DCA 1989); de Molina v. de Molina, 463 So. 2d 405, 406 (Fla. 3d DCA 1985). The trial court set forth extensive findings of fact wh…
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Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)…involuntary and permanent in nature. Where, as here, the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. See Deatherage v. Deatherage, 395 So. 2d 1169 (5 DCA FLA 1981); Lacy v. Lacy, 413 So. 2d 472 (2 DCA FLA 1982); Burdack v. Burdack, 371 So. 2d 528 (2 DCA FLA 1979); Flynn v. Flynn, 433 So. 2d 1037 (4 DCA FLA 1983). Both aspects of the trial court’s summary of the law find support in the cases c…1 / 3
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978)
- Scott v. Scott, 285 So. 2d 423 (Fla. 2d DCA 1973)
- Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975)
- Hernandez v. Hernandez, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973)
- In re the Marriage OF James M. Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977)
- Keena v. Helge Keena, 245 So. 2d 665 (Fla. 1st DCA 1971)
- McKENNA v. McKENNA, 220 So. 2d 433 (Fla. 3d DCA 1969)