KIMBERLY POE, APPELLANT,
v.
KURTIS POE, APPELLEE
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In this child support modification appeal, the Florida Fifth District Court of Appeal affirmed the trial court's finding of a substantial change in circumstances based on the former husband's job layoff, but reversed the imputation of income to the former wife where she credibly testified her earning capacity had decreased.
The trial court did not abuse its discretion in finding a substantial change in circumstances because the layoff, having occurred after the marital settlement agreement was signed according to credible evidence, was unanticipated. However, the trial court erred in imputing income to the former wife where she credibly testified her earning capacity had decreased and was no longer earning her prior year's income.
[1] A substantial change in circumstances justifying child support modification must be sufficient, material, involuntary, and permanent, and not contemplated at the time of…
[2] A permanent change in circumstances requires proof that the change is not temporary or transient, but rather encompasses an extended period of time.
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Join FLexlaw to unlock all legal intelligence“To justify a modification of child support, a movant must show: (1) a substantial change in circumstances, (2) the change was not contemplated at the time of the divorce judgment, and (3) the change is sufficient, material, involuntary, and permanent.”
Establishes the three-part test for child support modification that governs the case
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Join FLexlaw to unlock all legal intelligenceKimberly and Kurtis Poe divorced and had three minor children. A dispute arose regarding when Kurtis was laid off from his job—Kimberly testified it o…
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Kimberly Poe, former wife, appeals the granting of former husband’s supplemental petition for modification which reduced his child support obligation for the parties’ three minor children. She argues that the trial court erred in finding a substantial change in circumstances, failing to impute income to former husband, and imputing income to her.
To justify a modification of child support, a movant must show: (1) a substantial change in circumstances, (2) the change was not contemplated at the time of the divorce judgment, and (3) the change is sufficient, material, involuntary, and permanent. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). “[A] showing of permanent change requires proof that the change is not temporary or transient, but rather encompasses an extended period of time.” Bennett v. Dep’t. of Revenue on Behalf of Bennett, 664 So.2d 33, 34 (Fla. 5th DCA1995).
In this case, the parties disputed whether former husband’s layoff from his job was an unanticipated change in circum*844stances. Former wife testified that the layoff occurred the day before the parties signed their marital settlement agreement and, therefore, did not constitute an unanticipated change of circumstances warranting modification of his child support. Former husband testified he was laid off approximately one month after signing the marital settlement agreement. The president of the company where former husband had worked testified he was laid off on a date preceding the signing of the agreement.
Given the choice between the disinterested company president or the interested party, the trial court chose to accept the former husband’s testimony. The credibility of witnesses is within the trial court’s exclusive purview. Maliski v. Maliski, 664 So.2d 341, 343 (Fla. 5th DCA 1995). Having found that the change in circumstances was not contemplated when former husband executed the marital settlement agreement, the tidal court concluded that former husband met his burden of showing a substantial change of circumstances, and we find no abuse of discretion in the trial court’s conclusion.
Likewise, we find no error in the trial court’s failure to impute income to former husband based on loans from his parents. The testimony reflected these loans were not intended to be continuing and ongoing, but only temporary in nature. See Vorcheimer v. Vorcheimer, 780 So.2d 1018, 1019 (Fla. 4th DCA 2001).
We do, however, conclude that the trial court erred in imputing income to former wife. While former wife testified as to her previous year’s income, she also uncontrovertedly testified that she no longer was earning that amount, in part because she was receiving fewer hours as a substitute teacher.1 Former wife’s prior year’s tax return did not refute this testimony.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
TORPY and LAWSON, JJ., concur.
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Mannella v. Mannella, 363 So. 3d 236 (Fla. 6th DCA 2023)…, a petitioner must prove three elements: 1) a substantial change in circumstances, 2) that was not contemplated at the time of the divorce judgment’s entry, and 3) that is sufficient, material, involuntary, and permanent in nature. See Poe v. Poe, 63 So. 3d 842, 843 (Fla. 5th DCA 2011) (citing Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992)). Whether the underlying support order arises from an agreed-upon resolution or a court-imposed order, a petitioner’s burden of proof is identical. See § 61.14(7), Fla.…
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VAN Looven v. VAN Looven, 100 So. 3d 148 (Fla. 1st DCA 2012)…rial, involuntary, [*150] and permanent in nature; and (8) was not contemplated at the time of the final judgment of dissolution. See Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.1992); Maher v. Maher, 96 So. 3d 1022, 1022 (Fla. 4th DCA 2012); Poe v. Poe, 63 So. 3d 842, 843 (Fla. 5th DCA 2011); Matthews v. Matthews, 677 So. 2d 323, 325 (Fla. 1st DCA 1996). In Overbey, the decision on which Appellant relies, the supreme court confirmed that “a fundamental prerequisite to bringing an action to modify child support…
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Dep't OF Revenue o/b/o Marielena Scibelli v. Garmon, 138 So. 3d 562 (Fla. 5th DCA 2014)…on. Id. The movant must establish that: (1) a substantial change in circumstances occurred; (2) the change was not contemplated at the time of the original judgment; and (3) the change is sufficient, material, involuntary, and permanent. Poe v. Poe, 63 So. 3d 842, 843 (Fla. 5th DCA 2011) (citing Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.1992)). Here, Garmon was unable to prove that a substantial change in circumstances occurred. Rather, according to the child support guideline worksheets filed in this case, G…
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
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Nazir Jamaloodeen v. Jamaloodeen, 780 So. 2d 1018 (Fla. 4th DCA 2001)
- Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4th DCA 2001)
- Carson v. Polly Carson, 664 So. 2d 33 (Fla. 4th DCA 1995)
- Bennett v. Dep't OF Revenue, 664 So. 2d 33 (Fla. 5th DCA 1995)
- Springer v. State, 664 So. 2d 341 (Fla. 1st DCA 1995)
- Maliski v. Maliski, 664 So. 2d 341 (Fla. 5th DCA 1995)