MARY LEE BROOKS, APPELLANT,
v.
FRANCIS ELTON BROOKS, JR., APPELLEE
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Mary Lee Brooks appealed a trial court's denial of her motion to modify alimony and child support in a divorce dissolution. The Third District Court of Appeal affirmed the denial of alimony modification but reversed the denial of increased child support, finding the trial court abused its discretion by failing to account for inflation, the children's increased age, and the husband's increased income.
The court affirmed the denial of alimony modification because when alimony is fixed by agreement rather than court order, the party seeking modification bears a heavy burden that the appellant failed to meet. However, the court reversed the denial of increased child support, finding the trial court abused its discretion by failing to account for inflation, the children's increased needs with age, and the father's increased earning capacity.
[1] A party seeking modification of alimony fixed by agreement bears a heavy burden to demonstrate error.
[2] A trial court abuses its discretion by failing to increase child support payments when children's needs have increased due to age and inflation, and the supporting parent…
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Join FLexlaw to unlock all legal intelligence“Where the amount of alimony payments is fixed not by the court, but by agreement between the parties, the one seeking to modify the amount of alimony has a heavy burden.”
Establishes the high burden of proof required to modify agreed-upon alimony, which the appellant failed to meet.
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Join FLexlaw to unlock all legal intelligenceThe parties entered into a settlement agreement in June 1976 during their divorce proceedings, providing for $200 per month rehabilitative alimony (no…
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PER CURIAM.
Appellant Mary Lee Brooks appeals from an order denying her motion for modification of the alimony and child support provisions of the final judgment of dissolution of the parties’ marriage.
On June 14, 1976, during the pendency of the dissolution action, an agreement was entered into between the parties. The agreement, which was later incorporated by reference into the final judgment, provided, inter alia, that the husband [appellee] pay to the wife for her support and maintenance the sum of $200.00 per month, as and for rehabilitative alimony for a term not to exceed five years, at which time alimony would cease. It further provided that the husband pay to the wife as and for the support of the two minor children of the parties, the sum of $200.00 per month per child, until each child reached the age of eighteen. As additional support, the husband agreed to provide medical care and hospital expenses and limited dental expenses. He also agreed to pay for the college education or professional training of the children, if his finances permitted.
Appellant’s petition for modification alleged that in view of the increase in age of the children and the inflationary spiral of living expenses it was impossible for the children to be maintained and supported properly with the amount of support provided for in the agreement; that her circumstances had deteriorated, and the husband's financial circumstances had improved to the extent that he should be required to increase his support payments for the minor children. It was further alleged that the appellant had not been able to rehabilitate herself so as to properly provide for her support, even though she had two jobs. She therefore requested that the court order a continuance of the payments required for alimony and maintenance, which payments had expired.
Error has not been demonstrated as to the trial court’s refusal to extend alimony payments to the appellant. Where the amount of alimony payments is fixed not by the court, but by agreement between the parties, the one seeking to modify the amount of alimony has a heavy burden. Appellant has not met this burden. Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980); Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA), petition for review denied, 392 So. 2d 1378 (Fla.1980); Scott v. Scott, 285 So. 2d 423 (Fla. 2d DCA 1973).
It is not the function of this court to substitute its judgment for that of the trial court in the absence of a finding that the trial court abused its discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Shaw v. Shaw, 334 So. 2d 13 (Fla.1976). We find no such abuse of discretion.
However, with respect to the trial court’s denial of increased child support, we find error and reverse. In 1976, when the amount of child support was set, the children were seven and nine years old. At this time they are thirteen and fifteen. As they have grown older, the cost of their support has risen and the purchasing power of the dollar has declined, while the income of the husband has increased from $26,135 to $35,400. It is true that the husband has incurred some additional debts since 1976, but there is evidence showing that his income has increased to the extent that he can afford to provide additional support for the children.
Therefore, we have concluded that the trial court’s failure to increase the child support payments constituted an abuse of discretion. Jelke v. Jelke, 233 So. 2d 408 (Fla. 3d DCA), cert. denied, 238 So. 2d 107 (Fla.1970). The order appealed is reversed insofar as it denies additional child support and the cause is remanded to the trial court with directions to increase the amount of child support from $200.00 per month per child to $250.00 per month per child, effective as of the date of this opinion. In all other respects the order appealed is affirmed.
Affirmed in part, reversed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…imony awards, see Parkhurst v. Parkhurst, 413 So. 2d 853 (Fla. 4th DCA 1982); Veach v. Veach, 407 So. 2d 308 (Fla. 4th DCA 1981), prior child support awards, see Burrows v. Burrows, 384 So. 2d 1312 (Fla. 4th DCA 1980), or both, see Brooks v. Brooks, 423 So. 2d 995 (Fla. 3d DCA 1982); Rhoades v. Rhoades, 416 So. 2d 1233 (Fla. 1st DCA 1982); Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980), it has yet to be applied explicitly to a situation in which a modification of a prior custody award was s…
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Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988)…ort increase for fourteen-year-old where husband has financial ability to pay more and twelve years has elapsed since the marriage was dissolved), appeal dismissed, 476 So. 2d 672 (Fla.1985), rev. denied, 482 So. 2d 347 (Fla.1986); Brooks v. Brooks, 423 So. 2d 995 (Fla. 3d DCA 1982) (error in denying increase in child support where husband’s income increased, purchasing power of the dollar declined, and minor children matured in six-year-period following divorce); Siegel v. Zimmerman, 319 So. 2d 187 (Fla. 3d…
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Susanne E. Wanstall v. Wanstall, 427 So. 2d 353 (Fla. 5th DCA 1983)…hat, as children grow older, they need more things.3 Since none of these proofs were challenged by the husband, an increase in child support should have been ordered. Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978); see also Brooks v. Brooks, 423 So. 2d 995 (Fla. 3d DCA 1982). For the reasons stated in this opinion we reverse the judgment and remand this proceeding to the trial court for entry of an order increasing the child support in an appropriate amount. REVERSED AND REMANDED. BROWNLEE, JACKSON…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980)
- Scott v. Scott, 285 So. 2d 423 (Fla. 2d DCA 1973)
- Jelke v. Minot Frazier Jelke, 233 So. 2d 408 (Fla. 3d DCA 1970)
- Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980)
- Roper v. Pittwood, Inc., 238 So. 2d 107 (Fla. 1970)