KENNETH E. ALLEN, JR., APPELLANT,
v.
NANCY J. ALLEN, APPELLEE
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Kenneth Allen appeals an order modifying a child support obligation upward from $200 to $583 per month, arguing the ex-wife failed to demonstrate a substantial change in circumstances. The appellate court reversed, holding that the ex-wife did not meet her heightened burden of proving changed circumstances when the original support amount was based on a settlement agreement.
The court held that the ex-wife failed to carry her burden of proving a substantial change in circumstances. The receipt of a larger bonus by the ex-husband was insufficient evidence of changed circumstances, particularly where the ex-wife knew the ex-husband had received bonuses in the past and could reasonably expect future bonuses.
[1] A party seeking modification of child support bears the burden of proving a substantial change in circumstances, including financial circumstances.
[2] When child support is based on a settlement agreement, the party seeking modification faces a heavier burden of proof.
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Join FLexlaw to unlock all legal intelligence“A party seeking modification of a child support provision in a final judgment of dissolution of marriage has the burden of showing a substantial change of circumstances, including the financial 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.”
Establishes the legal standard for modification of agreed child support with heightened burden on the moving party.
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Join FLexlaw to unlock all legal intelligenceA final judgment of dissolution of marriage was entered on September 15, 1988, incorporating a settlement agreement between Kenneth and Nancy Allen. T…
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SCHOONOVER, Chief Judge.
The appellant, Kenneth E. Allen, Jr., challenges an order modifying a final judgment of dissolution of marriage. We reverse.
A final judgment dissolving the parties’ marriage was entered on September 15, 1988. The judgment incorporated a settlement agreement entered into between the appellant and the appellee, Nancy J. Allen. Pursuant to the agreement and the final judgment, the appellant was required to pay the sum of $200 per month for the support of the parties’ minor child.
Approximately nine months after the final judgment was entered, the appellee filed a petition seeking to modify the child support payments. At the conclusion of the hearing on the appellee’s petition, the court entered an order modifying the final judgment, and the child support payments were increased from $200 per month to $583 per month. The appellant filed a timely notice of appeal.
A party seeking modification of a child support provision in a final judgment of dissolution of marriage has the burden of showing a substantial change of circumstances, including the financial 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- 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 trial judge or to substitute our judgment for his. It is our duty, however, to carefully review the record to see whether his judgment is in fact supported by competent evidence. Diaco v. Diaco, 363 So. 2d 183 (Fla. 2d DCA 1978). The record in this case does not support a modification of child support payments.
The wife not only failed to present sufficient competent evidence to establish that the needs of the parties’ child had substantially increased in the nine month period since the final judgment had been entered, but she also failed to establish that her ability to help support the child had diminished or that the appellant’s ability had substantially increased. The only significant evidence submitted to the court related to a bonus received by the husband after the final judgment had been entered. When the parties entered into the settlement agreement, the appellee knew that the appellant had received bonuses in the past and had to reasonably expect that he would in the future. The fact that the bonus was larger than in past years, in itself, is not sufficient evidence to carry the appellee’s burden under the facts of this case. Changed circumstances sufficient to justify a modification of child support must be unanticipated and significant. Lewis v. Lewis, 450 So. 2d 1123 (Fla. 2d DCA 1983), review denied, 451 So. 2d 849 (Fla.1984). See also In re Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977) (a change in child support is warranted only upon changed circumstances which are substantive, material, involuntary, and permanent in nature).
We, accordingly, reverse and remand for the entry of an order denying the appel-lee’s motion to modify the child support payments.
Reversed.
HALL and CAMPBELL, JJ., concur.
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Lotz v. Lotz, 686 So. 2d 704 (Fla. 2d DCA 1996)…00 per week, plus a deviation of $171.00 per week. A party seeking a modification of child support has the burden of proving a substantial change of circumstances, including the financial circumstances of one or both of the parties. Allen v. Allen, 569 So. 2d 875 (Fla. 2d DCA 1990). The child. support guidelines may provide the basis for proving a substantial change in circumstances if the difference between the existing order and the amount provided for under the guidelines is at least fifteen percent or $5…
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Housman v. Housman, 588 So. 2d 247 (Fla. 3d DCA 1991)…PER CURIAM. Affirmed. See Tietig v. Boggs, 578 So. 2d 838 (Fla. 3d DCA 1991); Allen v. Allen, 569 So. 2d 875 (Fla. 2d DCA 1990); Mettler v. Mettler, 569 So,2d 496 (Fla. 4th DCA 1990); Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988); Ibanez v. Salazar, 459 So. 2d 346 (Fla. 3d DCA 1984), rev. denied, 467 So. 2d 1000 (Fla.1985); Lewis v. Lewis, 450 So. 2d 112…
Authorities Cited
- In re the Marriage OF James M. Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977)
- Diaco v. Diaco, 363 So. 2d 183 (Fla. 2d DCA 1978)
- Lacy v. Lacy, 413 So. 2d 472 (Fla. 2d DCA 1982)
- Lewis v. Lewis, 450 So. 2d 1123 (Fla. 2d DCA 1983)
- Nolte v. Nolte, 544 So. 2d 1146 (Fla. 2d DCA 1989)