KAREN M. NOLTE, APPELLANT,
v.
EVERETT E. NOLTE, APPELLEE
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Karen Nolte appealed from the trial court's denial of her motions to increase child support for her daughter Christina, enforce child support for her son Chad, and obtain attorney's fees. The appellate court reversed in part, holding that the former husband's substantial increase in income from $42,000 to over $100,000 justified an increase in Christina's support, but upheld the cessation of Chad's support payments based on equitable grounds when Chad was expelled from Karen's home. The court also reversed the denial of attorney's fees given the income disparity between the parties.
The court reversed the denial of increased support for Christina, holding that the former husband's substantial increase in income combined with increased needs for the child constitutes a sufficient change of circumstances to modify the support obligation. The court affirmed the cessation of Chad's support obligations based on equitable grounds when Chad was expelled from his mother's home. The court reversed the denial of attorney's fees, finding them warranted given the disparity in the parties' incomes.
[1] A substantial change in circumstances, including the financial condition of one or both parents, is essential for a modification of child support.
[2] A heavier burden is borne by the party seeking modification of child support when the agreement is incorporated into the final judgment.
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Join FLexlaw to unlock all legal intelligence“Essential to a determination of whether the former husband's support of Christina should be increased is a finding of a substantial change of circumstances, including the financial condition, of one or both parents.”
Establishes the legal standard for modifying child support agreements incorporated in final judgments.
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Join FLexlaw to unlock all legal intelligenceAt the time of dissolution, the former husband earned approximately $42,000. By 1987, his earnings exceeded $100,000. Karen testified that Christina's…
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FRANK, Judge.
Karen Nolte, the former wife, appeals from the denial of her motions to increase support for the minor daughter, Christina, to enforce the payment of child support on behalf of a son, Chad, and the award of an attorney’s fee.
Essential to a determination of whether the former husband’s support of Christina should be increased is a finding of a substantial change of circumstances, including the financial condition, of one or both parents. Lacy v. Lacy, 413 So. 2d 472, 474 (Fla. 2d DCA 1982). A heavier burden is borne by the party seeking modification where, as here, the child support agreement is incorporated in the final judgment. Id.; contra, Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986).
The record discloses that at the time of dissolution, the former husband was earning approximately $42,000. In 1987, however, his earnings exceeded $100,000, a marked improvement in his financial status over that which existed at the time of the final judgment. That fact, coupled with Karen’s testimony that Christina s needs have increased in the years following dissolution, requires reversal of the trial court’s order and justifies the enlargement of Christina’s support provided for in the final judgment.
Karen disputes that portion of the trial court's order relieving the former husband from the support obligation associated with Chad. Karen had legal custody of Chad, but ordered him from her residence on July 19, 1986 and he immediately began living with the former husband. A trial court may refuse to enforce past due child support under exceptions involving “laches, estoppel, waiver, reprehensible conduct upon the part of the parent having custody or other strong equitable reasons.” Panganiban v. Panganiban, 396 So. 2d 1156, 1157 (Fla. 2d DCA 1981).
We view Chad’s expulsion from Karen’s home as a legitimate equitable reason warranting the former husband’s cessation of payments. This situation is distinguishable from settings, for example, where the child, for non-compelling reasons, temporarily lives with the non-custodial parent. See Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984).
Thus, the former husband’s unilateral termination of support payments was not offensive to the final judgment or his duty to assist in the maintenance of Chad.
The last point raised by Karen stems from the trial court’s denial of attorney’s fees she incurred in the post judgment proceeding. We agree with Karen that given the disparity in the parties’ incomes and despite the fact that she did not prevail below, the award of a reasonable fee was in order. Reid v. Reid, 396 So. 2d 818, 821 (Fla. 4th DCA), rev. denied, 402 So. 2d 612 (Fla.1981).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
CAMPBELL, C.J., and PATTERSON, J., concur.
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Creel v. Creel, 568 So. 2d 942 (Fla. 3d DCA 1990)…husband to pay the former wife’s attorney’s fees and costs where the former wife has demonstrated that the former husband is in a superior financial position to pay the fees and costs. See Johnson v. Johnson, 403 So. 2d 1388 (1981); Nolte v. Nolte, 544 So. 2d 1146 (Fla. 2d DCA 1989); [*944] Seitz v. Seitz, 471 So. 2d 612 (Fla. 3d DCA 1985). Additionally, the amounts awarded were not excessive in light of the evidence presented. Although we affirm all awards made to the former wife, we reverse the portion of…
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Kutz v. Fankhanel, 608 So. 2d 873 (Fla. 5th DCA 1992)…other in going back and forth between the parties,” and “that although the child lived back and forth between the parents, he lived in his father’s home most of the time.” Under these circumstances, the trial court declined to apply Nolte v. Nolte, 544 So. 2d 1146 (Fla. 2d DCA 1989) to this case. Nolte is an example of one of those “extraordinary” or “exceptional” cases in which the court declined to enforce child support arrearages which had accrued in full under a dissolution decree. In Nolte, there is a s…
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Allen v. Allen, 569 So. 2d 875 (Fla. 2d DCA 1990)…inancial circumstances of one or both of the parties. Furthermore, when the amount of child support payments is based upon an agreement between the parties, as in this case, a heavier burden rests upon the party seeking modification. Nolte v. Nolte, 544 So. 2d 1146 (Fla. 2d DCA 1989); Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982). The appel- [*877] lee did not carry her burden in this case. We realize that it is not our function in reviewing the order before us to reevaluate the testimony presented to the tr…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)
- Sherl Lanette Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984)
- Lewis v. State, 396 So. 2d 818 (Fla. 4th DCA 1981)
- In re the Marriage of Luz Joson Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981)
- Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982)