JOHN W. LAMAR, APPELLANT,
v.
RUTH GLORIA LAMAR, APPELLEE
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In this divorce modification case, the Fourth District Court of Appeal reversed the trial court's order requiring John Lamar to convey a one-acre parcel to his ex-wife Ruth as a trust for their child with cerebral palsy. The court held that fear or suspicion of changed circumstances is insufficient to modify a property settlement agreement; rather, concrete evidence of changed circumstances must be demonstrated.
The court held that fear or suspicion is not a sufficient foundation to support modification of a property settlement agreement. Instead, the petitioner must establish concrete facts showing a change of circumstances, such as increased income to the obligor or additional needs of the children. The trial court erred in requiring the parcel to be conveyed in trust for Jacqueline, and the proper remedy is to enforce the original property settlement agreement as written.
[1] A petition for modification of a divorce judgment requires evidence of a change in circumstances, not mere fear or suspicion.
[2] The burden of proof rests with the petitioner seeking modification of a divorce judgment.
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Join FLexlaw to unlock all legal intelligence“Fear or suspicion is not the foundation required to support a petition for modification. The evidence must establish some fact showing a change of circumstance to warrant an increase or decrease in an award for support.”
Establishes the legal standard that petitioner must prove concrete changed circumstances, not mere speculation or fear
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Join FLexlaw to unlock all legal intelligenceJohn and Ruth Lamar divorced on February 15, 1968, with a property settlement agreement providing for division of real and personal property and child…
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The appellant brings for review an adverse judgment entered against him in a proceeding to modify the property settlement portion of the final judgment of divorce entered in the suit of Ruth Gloria Lamar v. John W. Lamar on February 15, 1968. The property settlement agreement provided for an agreeable distribution of the real and personal property between the then husband and wife, and made agreeable provisions for the support of the two minor children born to the marriage of the parties, viz: Jill Dianne Lamar, age 14 years, and Jacqueline Rose Lamar, age 7 years. Jacqueline has been afflicted since birth with cerebral palsy.
The property settlement agreement provided in part that Ruth Gloria Lamar would convey to John W. Lamar a small parcel of land in Dade County, Florida, designated in the agreement as the north one acre of parcel one. From the date of the final judgment to May 14, 1971, the date Ruth Gloria Lamar Beuche filed her petition for modification she had not performed her agreement to convey the one acre now in question to John W. Lamar. The thrust of the petition for modification was to obtain an order requiring John W. Lamar to convey to her the subject one acre, in trust for Jacqueline.
The entirety of the testimony of the former Mrs. Lamar in support of the petition was to the effect that Jacqueline now needed more personal care, probably necessitating employment at some future time of someone to aid in her care, and the suspicion of the former wife that the father, when he retired, might leave the country and not continue to provide child support.
Fear or suspicion is not the foundation required to support a petition for modification. The evidence must establish some fact showing a change of circumstance to warrant an increase or decrease in an award for support. Such could be an increased income to the father, or additional needs of the children. Simmons v. Simmons, 192 So.2d 325 (Fla.App.1966); Jelke v. Jelke, 233 So.2d 408 (Fla.App.1970).
. The burden of proof was with the petitioner. The testimony reveals no in*378creased expenditures, or increased need, for the care of either child since the entry of the final judgment, or increased income to the father. Should such need occur, the court is always open to require the father to further respond as such need and his ability to meet such need blend together equity.
It is our view that the trial court erred in requiring that the subject parcel of land, the suggested value of which was $10,000, be conveyed in trust for Jacqueline.
Equity regards as done that which ought to be done. The parties should have, in due season, performed their agreement. That must now be done.
The judgment appealed from is reversed with direction that the trial court enter its order requiring each party to honor their property division agreement.
Reversed, with direction.
REED, C. J., and WALDEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Diaco v. Diaco, 363 So. 2d 183 (Fla. 2d DCA 1978)…ren occurring subsequent to the final judgment. Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946); Section 61.14, Florida Statutes (1977). The burden of proving the requisite change in circumstances is on the party seeking modification. Lamar v. Lamar, 266 So. 2d 376 (Fla. 4th DCA 1972). Relief in the form of modification rests in the sound discretion of the trial judge, which will not be disturbed absent a clear showing of abuse of that discretion. Riesner v. Riesner, 151 Fla. 8, 9 So. 2d 108 (1942). It is not…
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Brown v. Kermit Marlin Brown, 399 So. 2d 1083 (Fla. 1st DCA 1981)…inancial ability of either party has changed.” (e.s.) § 61.14(1), Florida Statutes (1979). A showing that the paying parent has had a substantial increase in income is sufficient to justify an increase in the amount of child support. Lamar v. Lamar, 266 So. 2d 376 (Fla.4th DCA 1972); Sherman v. Sherman, 279 So. 2d 887 (Fla.3d DCA 1973); Meltzer v. Meltzer, 356 So. 2d 1263 (Fla.3d DCA 1978); Lenton v. Lenton, 370 So. 2d 30 (Fla.2d DCA 1979). Clearly such a showing was made here by introduction of Mr. Brown’s f…
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In re the Marriage of Jeanne G. Wainwright v. Wainwright, 610 So. 2d 94 (Fla. 1st DCA 1992)…the burden was on the former wife to establish by competent evidence that a substantial change in circumstances, entitling her to increased child support, had occurred since the entry of the final judgment of dissolution of marriage. Lamar v. Lamar, 266 So. 2d 376 (Fla. 4th DCA 1972). The former wife failed to carry this burden. Similarly, [*95] as the appellant, the burden is on the former wife to demonstrate, from the record, that the trial court committed error. In re Lieber’s Estate, 103 So. 2d 192 (Fla.1…
Authorities Cited
- Jelke v. Minot Frazier Jelke, 233 So. 2d 408 (Fla. 3d DCA 1970)
- Simmons v. Simmons, 192 So. 2d 325 (Fla. 3d DCA 1966)