JAY HENRY VANDEN BOSCH, APPELLANT,
v.
PATRICIA ANN VANDEN BOSCH ELKINS, APPELLEE
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A former wife sought to modify child support in a dissolution judgment based on alleged substantial changes in circumstances. The Florida appellate court reversed, holding that her voluntary choices—remarrying, selling the marital home, and moving to a more expensive residence—do not constitute involuntary, permanent changes warranting increased child support.
The court held that the former wife failed to demonstrate a substantial change in circumstances because her reliance on voluntary choices (remarriage, voluntary sale of the home, moving to a more expensive residence) does not satisfy the legal requirement that such changes be involuntary and permanent. Additionally, no evidence supported claims of increased children's expenses, and the attorney's fee award was not authorized because there was no legal basis for the modification proceeding and the former wife had sufficient resources to retain counsel.
[1] A party seeking modification of child support based on a substantial change in circumstances bears the burden of proving that the change was involuntary and permanent.
[2] A voluntary change in a party's living situation, such as remarrying or moving to a more expensive residence, does not constitute a substantial change in circumstances su…
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Join FLexlaw to unlock all legal intelligence“said party bears the burden of proof on the issue in showing that there has been a substantial change in circumstances since the final judgment, which change was involuntary and permanent in nature”
Establishes the legal standard requiring proof of involuntary and permanent changes to modify child support
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Join FLexlaw to unlock all legal intelligenceIn a substituted final judgment of marriage dissolution, the former wife Patricia Ann Vanden Bosch Elkins was awarded the marital home as lump sum ali…
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PER CURIAM.
This is a consolidated appeal from (1) a final order modifying a substituted judgment of marriage dissolution by increasing the award of child support, and (2) a subsequent order awarding attorney’s fees for the former wife on the modification proceeding. We reverse.
The law is well-settled that a trial court is authorized to modify a child support award contained in a final judgment of marriage dissolution [which, as here, does not incorporate a property settlement agreement]: “ when such is found to be necessary by the court for the best interests of the child or children, [or] when the child or any one of them has reached the age of 18 years, [or] when such is found to be necessary by the court because there has been a substantial change in the circumstances of the parties.” § 61.13(1), Fla. Stat. (1981); see Wood v. Wood, 272 So. 2d 14 (Fla. 3d DCA 1973).
Where, as here, the party seeking a modification of child support contained in a final judgment of marriage dissolution relies on the statutory ground of “a substantial change in the circumstances of the parties,” said party bears the burden of proof on the issue in showing that there has been a substantial change in circumstances since the final judgment, which change was involuntary and permanent in nature. In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977); also see Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982); Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA 1981).
Slightly different rules obtain where, unlike this case, the final judgment of marriage dissolution sought to be modified incorporates a property settlement agreement. See § 61.14, Fla.Stat. (1981); also compare Lacy v. Lacy, supra; Deatherage v. Deatherage, supra.
In the instant case, the former wife Patricia Ann Vanden Bosch Elkins filed in the trial court a motion for modification of child support previously awarded in a substituted final judgment of marriage dissolution. The sole ground relied upon for the requested increase in child support was an alleged “substantial change in the circumstances of the parties.” § 61.13(1), Fla. Stat. (1981).
At the hearing on the motion for modification, the only change in circumstances shown was that the former wife had remarried, had voluntarily sold the marital home she was awarded as lump sum alimony, and had moved into a new residence which was substantially more expensive to maintain. This was clearly a voluntary change in circumstances in no way imposed upon the former wife nor required for the well-being of the minor children. It could not, therefore, form a basis for the increase in child support awarded herein. We have not overlooked the claim that an additional change in circumstances was shown below in the children’s living and schooling expenses, apart from the residence move. We have, however, diligently searched the record in vain for any evidence to support this claim and can find nothing which even approaches the required showing of a substantial change in circumstances here; there is utterly no showing in this record that these aforesaid expenses have substantially increased since the substituted final judgment. We, therefore, have no alternative but to reverse the final judgment of modification under review.
We must also reverse the attorney’s fee award under review. There was utterly no legal basis to file the modification proceeding here and the former wife was, in any event, possessed of sufficient resources to retain counsel. As such, an attorney’s fee award was not authorized here. Deatherage v. Deatherage, supra.
The final judgment of modification and the order awarding attorney’s fees are, therefore,
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988)…1st DCA 1986). Mrs. Waldman managed her equity according to her own desire. She cannot now seek a modification to support a style of living made possible only through a wholesale — and voluntary-dissipation of her assets. See Vanden Bosch v. Elkins, 419 So. 2d 1127 (Fla. 3d DCA 1982). Mrs. Waldman’s health and inability to work, moreover, were contemplated at the time of the original final judgment. The fact that she tried to “work” and lost her assets in the process of starting a business which ultimately fai…
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Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA 1989)…d the master’s findings that the' mother failed to meet her burden of proof to show a substantial, involuntary, and permanent change in circumstances sufficient to warrant an increase in the amount of support for Michael. See Vanden Bosch v. Elkins, 419 So. 2d 1127 (Fla. 3d DCA 1982). It was error, however, for the trial court to adopt the master’s recommendation that “in view of the totality of financial disclosure as to the assets of both parties,” the mother was not entitled to any attorney’s fees or costs…
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Aleyda Fritz v. Fritz, 485 So. 2d 488 (Fla. 3d DCA 1986)…his court has previously recognized that different rules apply to applications for modification of child support depending upon whether the support provisions are entered by order of the court or stipulated to by the parties. Vanden Bosch v. Elkins, 419 So. 2d 1127 (Fla. 3d DCA 1982). See Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982); §§ 61.13, 61.14, Fla.Stat. (1983). After reviewing the record, we find that there was no evidence presented to the general master which would support the finding of a substant…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA 1981)
- In re the Marriage OF James M. Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977)
- Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982)
- Wood v. Wood, 272 So. 2d 14 (Fla. 3d DCA 1973)