SHIRLEY GRIFFIN O'BRIEN, APPELLANT,
v.
WILLIAM JAMES O'BRIEN, APPELLEE

Fla. 1st DCA | 1981-12-18
No. ZZ-455
McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.
407 So. 2d 374 Florida District Court of Appeal, First District (1981) Negative Treatment
Cited by 15 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The wife appealed an order reducing the husband's child support obligation from $100 to $25 per week, nine months after the final divorce decree. The Florida District Court of Appeal affirmed the reduction, treating it as a temporary five-month respite conditioned on the husband's burden to prove he cannot resume the original support obligation.


Holding

The trial court did not abuse its discretion in granting the modification based on substantial, material, involuntary changes in the husband's financial circumstances. However, the court emphasized that the modification constitutes only a temporary five-month respite, after which the husband bears the burden of proving he cannot resume the $100 per week obligation or that he lacks employment potential to meet his obligations.


Headnotes

[1] Child support obligations established in a final judgment are subject to modification upon a showing of substantial, material, involuntary, and permanent changes in circu…

[2] A trial court may abuse its discretion in modifying child support if the modification is not supported by evidence of changed conditions that render the obligor unable to…

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Key Quotes

“We recognize that decrees providing for child support are impermanent in character and are res judicata of issues only so long as the facts and circumstances of the parties remain the same as when the decree was entered.”

Establishes the legal principle that child support decrees can be modified if circumstances change, but only upon meeting strict requirements.

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Facts & Procedural History

The husband's home improvement business, which had netted $28,000 in the prior year, suffered a considerable slump due to the depressed economy. At th…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The wife brings this appeal from an order modifying the husband’s child support obligation established nine months earlier in the final judgment of dissolution. The order reduces the support from $100.00 per week for the parties’ two minor children to $25.00 per week for the children, but provides for reconsideration of the question of child support in five months.1 We affirm.

The husband testified that he is unable to meet the financial requirements made of him by the terms of the decree because his home improvement business, which in the past year had netted him $28,000, suffered a considerable slump due to the depressed economy.2 At the time of the hearing, the husband was netting approximately $158.00 per week after taxes, and his expenses amounted to $408.19, giving him a weekly deficit of $249.65. The wife was employed making $638.80 per month and received a rent free apartment valued at $295.00 per month as part of her pay as a resident manager of an apartment complex. With respect to her expenses for the children, she testified that the children continued to have support needs of $400.00 per month.

Although the modification order allows the husband to pay less than the needs of the children require, we cannot say the trial judge abused his discretion based upon the evidence of changed conditions causing the husband to be unable at this time to contribute a more reasonable and realistic allowance for support. While we agree that $25.00 per week is clearly inadequate to support the children, we recognize as equally true that the sums left to the husband after making the support payments and meeting the other financial requirements of the divorce decree are even less adequate for his support.

We recognize that decrees providing for child support are impermanent in character and are res judicata of issues only so long as the facts and circumstances of the parties remain the same as when the decree was entered. Eaton v. Eaton, 238 So. 2d 166 (Fla. 4th DCA 1970). The law is clear, however, that a modification may be granted only upon a showing of substantial, material, involuntary, and permanent changes. Section 61.13, Florida Statutes (1949); In Re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). We caution, however, that a strong showing should be required before a modification is granted based upon an alleged change in economic or market conditions, and this is especially so when the party seeking a reduction in child support payments is operating in an entrepreneurial capacity. See Gardner v. Gardner, 64 So. 2d 679 (Fla.1953); Chastain v. Chastain, 73 So. 2d 66 (Fla.1954). It goes without saying (without any suggestion or inference that appellee has done so) that one so engaged can easily record a drastic fluctuation in income by the degree of initiative employed in securing and accepting remunerative work or business.

We further emphasize that by our affirmance of the order appealed we do not sanction the relitigation of support and alimony awards under the guise of modification proceedings filed only a few months after the date of the final decree.3 We affirm the order appealed by treating the trial court’s order as one granting the husband a five month respite from his support obligation after which he will have the burden of proving that he does not have the financial ability to resume paying the $100.00 per week child support ordered in the final judgment or that he does not have the potential to gain other employment equal to his capabilities so that he can meet his financial obligations. See Desilets v. Desilets, 377 So. 2d 761 (Fla.2nd DCA 1979).

Accordingly, the order appealed is AFfirmed!

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur. . The order also makes changes in other provisions of the final judgment, but these matters are not the subject of this appeal.

. Our references to the testimony are taken from a statement of the evidence under Rule 9.200(b)(3), as approved by the trial court.

. The motion for modification in this case was filed less than six months, and the hearing was held only nine months, after the final decree.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005)
    …repreneurial capacity. Thomas, 589 So. 2d at 947. This is because an entrepreneur can easily record a drastic fluctuation in income by the degree of initiative employed in securing and accepting remunerative work or business. Id; O’Brien v. O’Brien, 407 So. 2d 374, 375 (Fla. 1st DCA 1981). However, in this case the nature of the former husband’s work, the fate of the dot.com bubble, and the sudden loss of his partner and client base were all undisputed. Based on these circumstances, we conclude that the forme…
  • Fredrick Thomas v. Janell Thomas, 589 So. 2d 944 (Fla. 1st DCA 1991)
    …modification of an existing child support order because of a change in circumstances. A reduction in child support may be warranted upon changed circumstances which are substantive, material, involuntary, and permanent in nature. O’Brien v. O’Brien, 407 So. 2d 374, 375 (Fla. 1st DCA 1981); In re Marriage of Johnson, 352 So. 2d 140, 141 (Fla. 1st DCA 1977). However, the clean hands doctrine prevents a court from relieving a party of his support obligation when the decrease in financial ability to pay is brough…
  • Manning v. Manning, 600 So. 2d 1274 (Fla. 1st DCA 1992)
    …justify a child support reduction is now settled Florida decisional law. See, e.g., Thomas v. Thomas, 589 So. 2d 944, 947 (Fla. 1st DCA 1991) (on motion for clarification); Conklin v. Conklin, 551 So. 2d 1279 (Fla. 4th DCA 1989); O’Brien v. O’Brien, 407 So. 2d 374 (Fla. 1st DCA 1981); Bish v. Bish, 404 So. 2d 840 (Fla. 1st DCA 1981). This Court in Bish stated that a permanent change of circumstances is a “fundamental prerequisite” to modification. See 404 So. 2d at 840-41. [*1276] None of the cases presented…
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