CHARLOTTE ANNE SMITH, APPELLANT,
v.
WALTER H. SMITH, APPELLEE
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The Fourth District Court of Appeal reversed a trial court order reducing child support from $100 per week, holding that the former husband seeking modification failed to demonstrate a substantial change in circumstances as required by law. The court found the modification request improper because it challenged the original stipulated judgment rather than establishing a specific change in the two-month period since the last court finding of ability to pay.
The modification order must be reversed because there was insufficient evidence of a substantial change in circumstances. The husband could not simply challenge the original stipulated judgment; he was required to show a specific change in the two-month period since the last court order affirming his ability to pay, which he failed to do.
[1] A party seeking modification of a prior final judgment to reduce child support bears the burden of demonstrating a substantial change in circumstances.
[2] A trial court may not remake a settlement agreement regarding child support provisions absent a showing of a substantial change in circumstances.
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Join FLexlaw to unlock all legal intelligence“the law of Florida is clear that when a party seeks modification of a prior final judgment to reduce child support the moving party has the rather heavy burden of demonstrating a substantial change in circumstances”
Establishes the legal standard applicable to child support modifications
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced in April 1977 with child support set at $100 per week by final judgment. The husband was found in contempt twice for failure…
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BERANEK, Judge.
This is an appeal by the former wife from an order granting modification of a child support obligation previously established at $100 per week by final judgment of dissolution. We reverse. The following chronology appears on the face of the pleadings:
April 14, 1977 — parties divorced, final judgment set child support at $100 per week.
March 30, 1978 — husband found in contempt for failure to pay child support; ruling deferred.
July 10, 1978 — husband’s initial petition to modify child support downward denied by court order. (This order is not the subject of the instant appeal.)
December 28, 1978 — husband held in contempt for failure to pay child support.
March 2, 1979 — husband’s second petition for modification of child support.
April 2,1979 — order appealed from. This order granted modification and reduced child support.
The law of Florida is clear that when a party seeks modification of a prior final judgment to reduce child support the moving party has the rather heavy burden of demonstrating a substantial change in circumstances. Meltzer v. Meltzer, 356 So. 2d 1263 (Fla.3d DCA 1978); and Burdack v. Burdack, 371 So. 2d 528 (Fla.2d DCA 1979). In the instant case we conclude there was insufficient evidence of a substantial change in the financial circumstances of these parties.
Further, the chronology of proceedings does not support the order granting modification. The parties were divorced in early 1977, and the husband’s continuing ability to pay child support was thereafter reaffirmed in three subsequent court orders. The husband was twice found subject to contempt for his failure to pay child support and his prior petition for modification of child support was denied. The husband’s persistence was finally rewarded when he filed his second request for modification of March 2, 1979. This modification request occurred just slightly over two months after he had been found able to pay child support by the order of December 28, 1978. The husband’s March 2,1979, request for modification did not allege any specific change in the preceding two months but was instead directed at the entire period of time which had elapsed from entry of the final judgment. In the absence of some specific change in the two-month period in question, modification should have been denied. The former husband should not have been allowed to argue that child support should never have been set at $100 per week in the original final judgment. Acceptance of this position rendered the final judgment and the prior three unappealed court orders ineffectual. The initial final judgment on child support was arrived at by stipulation. The trial court may not remake a settlement agreement and should not modify the child support provisions of such an agreement in the absence of a showing of a substantial change in circumstances. Martinez v. Martinez, 383 So. 2d 1153 (Fla.3d DCA 1980). The order granting modification is reversed.
REVERSED.
DOWNEY, J., concurs.
HURLEY, J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA 1989)…avy burden to demonstrate a „ substantial change in circumstances, “and a heavier burden may apply when an award has been made pursuant to a settlement agreement.” League v. Lassiter, 536 So. 2d 365, 366 (Fla. 1st DCA 1988). See also Smith v. Smith, 399 So. 2d 1116, 1117 (Fla. 4th DCA 1981); Fox v. Haislett, 388 So. 2d 1261, 1265 (Fla. 2d DCA 1980). Modification should not be granted simply because one of the parties has become dissatisfied with terms which were freely negotiated. League v. Lassiter, 536 So. 2…
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Ned R. Fayson v. Fayson, 482 So. 2d 523 (Fla. 5th DCA 1986)…or modification in May, 1983. Rather, the wife sought essentially the same relief in the February, 1984, petition for modification. In the absence of some specific change since the 1983 petition, modification should have been denied. Smith v. Smith, 399 So. 2d 1116 (Fla. 4th DCA 1981). The award of attorney’s fees to the wife was also error. Section 61.16, Florida Statutes (1983) provides for the award of attorney’s fees in dissolution proceedings, including enforcement and modification proceedings. Here the…
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Brighton v. Elvin L. Brighton, 517 So. 2d 53 (Fla. 4th DCA 1987)…trial court’s finding that “there has been a substantial change in circumstances, which is significant, material, involuntary, and permanent in nature, because of the husband’s health problems, the diminution in his income, etc.” See Smith v. Smith, 399 So. 2d 1116 (Fla. 4th DCA 1981); Brown v. Brown, 472 So. 2d 873 (Fla. 2d DCA 1985). It is clear from the record that the husband’s brief bout with high blood pressure has not caused his financial situation to be substantially changed to the extent that he can b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978)
- Burdack v. Friedrich W. Burdack, 371 So. 2d 528 (Fla. 2d DCA 1979)
- Martinez v. Martinez, 383 So. 2d 1153 (Fla. 3d DCA 1980)