ELIZABETH B. BISH, APPELLANT,
v.
THOMAS A. BISH, APPELLEE
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The appellate court reversed a trial court's order eliminating cost-of-living adjustments to child support that were agreed upon in the parties' separation agreement, finding the husband failed to demonstrate a substantial and permanent change in financial circumstances necessary to modify an agreed-upon provision.
The husband did not meet the required burden of proving a substantial and permanent change in circumstances. When modification is sought to a provision that was agreed upon by the parties, a heavier burden applies than in other modification proceedings, and the evidence must show the change is sufficient, material, involuntary, and permanent in nature.
[1] A party seeking modification of a child support provision incorporated into a separation agreement and final judgment of dissolution bears a heavier burden than in a stan…
[2] A substantial change in financial circumstances sufficient to warrant modification of child support must be material, involuntary, and permanent in nature.
Previewing 2 of 4 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“Therefore a heavier burden rested upon the husband in this modification proceeding than would otherwise be required.”
Establishes that when parties have agreed upon a provision, the burden to modify is higher than for other modifications.
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Join FLexlaw to unlock all legal intelligenceThe husband and wife agreed to cost-of-living adjustments to child support in their separation agreement, which was ratified and incorporated into the…
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PER CURIAM.
The wife appeals a final order on petition for modification finding a substantial change in the husband’s financial condition since the parties’ divorce in 1979 and ordering the elimination of the requirement that the child support provision be adjusted twice yearly based on changes in the National Consumer Price Index. We reverse.
The parties agreed upon the cost of living adjustments in a separation agreement which was ratified and incorporated in the final judgment of dissolution. Therefore a heavier burden rested upon the husband in this modification proceeding than would otherwise be required. Burdack v. Burdack, 371 So. 2d 528 (Fla. 2nd DCA 1979). We agree with appellant’s contention that the husband did not meet this burden. The evidence simply shows that subsequent to the divorce, the husband left his employment with Westinghouse where he received cost of living salary increases and began employment with Florida Power and Light in Dade County making a higher salary but not the cost of living increases. The husband testified that his overall financial condition worsened while in South Florida because of the high cost of living there and because he was unable to make money on his expense account with Florida Power and Light as he had been able to do with Westinghouse. At the time of the final hearing, the husband had made arrangements to return to work with Westinghouse in the Jacksonville area. A fundamental prerequisite to modification based upon change of circumstances is a showing that the change is sufficient, material, involuntary and permanent in nature. In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). Such a showing as not made in this case. Accordingly, the order of the trial court is REVERSED.
IT IS SO ORDERED.
BOOTH, LARRY G. SMITH, and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988)…reverse the award of increased alimony based upon the following analysis. I. Alimony Modification based upon a change of circumstances requires a showing that the change is sufficient, material, involuntary, and permanent in nature. Bish v. Bish, 404 So. 2d 840 (Fla. 1st DCA 1981). The change in financial circumstances must be meaningful, Powell v. Powell, 386 So. 2d 1214 (Fla. 3d DCA 1980), relating to the needs of the spouse receiving the alimony and the ability of the other spouse to pay. See Canakaris…
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DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)…Cunningham v. Cunningham, 499 So. 2d 880, 882 (Fla. 1st DCA 1987). The test for a substantial change of circumstances warranting modification “is a showing that the change is sufficient, material, involuntary and permanent in nature.” Bish v. Bish, 404 So. 2d 840, 841 (Fla. 1st DCA 1981). (emphasis in the original). One of the factors deemed insufficient, hence not a basis for modification, is an anticipated reduction in the paying spouse’s income, e.g., a reduction due to retirement, which was contemplated…
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Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)…, although employing different labels: that the change be quantitatively significant, variously described in the cases as “significant,” Burdack v. Burdack, 371 So. 2d at 528; Deatherage v. Deatherage, 395 So. 2d at 1169; “sufficient,” Bish v. Bish, 404 So. 2d 840 (Fla. 1st DCA 1981); and “substantive,” In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). The difficulty we have is with the imposition of a “heavier burden” where the amount of child support payments is established by agreement. The ge…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re the Marriage OF James M. Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977)
- Burdack v. Friedrich W. Burdack, 371 So. 2d 528 (Fla. 2d DCA 1979)