ROGER W. SHERMAN, APPELLANT,
v.
JOAN V. SHERMAN, APPELLEE
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In this interlocutory appeal, the court affirmed the trial court's decision to increase periodic alimony and child support based on the former husband's substantial increase in income from his transition from surgical residency to private practice. The court held that a significant increase in the obligor's financial ability constitutes a sufficient change in circumstances to justify modification of support obligations.
Yes. A substantial increase in the obligor's income constitutes a sufficient change in circumstances to justify modification of both periodic alimony under Florida Statute § 61.14(1) and child support under § 61.13. The increased allowance for child support rests on an even firmer foundation because modification is authorized whenever there is a substantial change in the circumstances of the parties or when necessary for the best interests of the child.
[1] Periodic alimony may be increased upon petition for modification when the only change of circumstance shown is a substantial increase in the earnings of the former husban…
[2] A court has continuing jurisdiction to modify child support payments when there has been a substantial change in the circumstances of the parties.
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Join FLexlaw to unlock all legal intelligence“when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed”
This statutory language from Florida Statute § 61.14(1) establishes that a change in financial ability is a sufficient basis for modifying alimony.
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Join FLexlaw to unlock all legal intelligenceAppellant, a medical doctor, was divorced in June 1971 and ordered to pay periodic alimony of $268 per month and child support of $432 per month. At t…
The full statement of facts, procedural history, and disposition for this case are member content.
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These consolidated interlocutory appeals present the question: May periodic alimony be increased upon petition for modification when the only change of circumstance shown is a substantial increase in the earnings of the former husband ?1
Appellant, a medical doctor, was divorced in June, 1971. The appellee was granted periodic alimony of $268.00 per month and child support for four minor children of $432.00 per month, and other benefits which are not here in issue. On July 14, 1972, pursuant to petition of appel-lee, the alimony was increased to $500.00 per month and the child support was increased to $800.00 per month. The record sustains the trial judge’s finding that there was a change in circumstances because the appellant’s income had increased from approximately $10,000.00 per year to a rate of approximately $92,000.00 per year. Appellant was a surgical resident at the time of the divorce and thereafter entered private practice.
We hold that the question presented must be answered in the affirmative upon authority of Fla.Stat. § 61.14(1), F.S.A., which provides in part:
* * when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed * * (Emphasis added)
See also McArthur v. McArthur, Fla.1957, 95 So.2d 521; Terry v. Terry, Fla.App.1961, 126 So.2d 890.
The increased allowance for child support stands upon an even firmer foundation. Meltzer v. Meltzer, Fla.App.1972, 262 So.2d 470; Waller v. Waller, Fla.App.1968, 212 So.2d 352. See also Fla. Stat. § 61.13, F.S.A., which provides in part:
* * * * *
“The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of such initial order to modify the amount of the child support payments, or the terms thereof, when such is found to be necessary by the court for the best interests of the child or children, or when such is found to be necessary by the court because there has been a substantial change in the circumstances of the parties.”
* * * * * *
We have considered the point presented by appellant:
“Where, in a divorce decree the court finds the wife’s and children’s needs, and in disregard of the standard of living *889maintained during the marriage, makes an award in excess of the husband’s take-home pay, on the expressed basis that the husband, a young doctor, should give up his residency, and discontinue his specialized training, at Jackson Hospital, and should enter private practice in which he could make about three times his resident’s salary, was it error, less than a year later, to modify the original award by increasing it to 185%, from $700 to $1,300 a month, on the basis that in the interim the doctor’s income had, as anticipated, increased, when there was no evidence of a substantial change in needs, to justify increasing alimony from $268 to $500 (plus requiring the husband to pay half of major repairs, replacements of appliances, etc.), and increasing child support for each child from $108 to $200.”
Our review of the record convinces us that error has not been demonstrated because the increase in appellant’s income was far more substantial than that indicated as expected by the allowances for the family at the time of the final judgment. No abuse of discretion is made to appear. Meltzer v. Meltzer, supra.
Affirmed.
(concurring in part; dissenting in part).
I concur in so much of this opinion that approved an increase in child support, based upon a showing of increased ability of the father to provide support and maintenance for his children. This is in accordance with the applicable authorities.
However, I have strong convictions that the former wife in the instant matter is not entitled to a raise in alimony. As I understand this record, it is conceded that the alimony as originally awarded was commensurate with the scale of living maintained by the appellant during the time the parties were man and wife. The only change in circumstances has been the increased earning capacity of the former husband. In this enlightened age of women’s lib, no fault divorce, etc., I think it is foolish for the courts to hold that a former wife may come in [I assume at any time] and upon a showing of an increase in earnings by her former husband receive an increase in alimony. As I understand periodic alimony, it is to be awarded for the purpose of permitting the former wife to live in the manner and custom established by the husband. Concededly, periodic alimony in this case in the original instance accomplished this purpose. Following the reasoning of the majority, what would be the time limit, if any, when a former wife could seek an increase in alimony based solely upon the improved earning capacity of her former husband? Is it one, five, ten or twenty years ? Obviously, laches couldn’t begin to run until such time as the husband had the increased earning capacity.
Following the majority’s opinion to a logical conclusion, a former wife receiving periodic alimony could hold her former husband to an increase in alimony upon increased earnings at any time during the remainder of his life. I don’t think the courts should condone such action. Many of the authorities cited in the majority opinion, which approved an increase in alimony, had an additional element other than the mere increase in earning capacity of the former husband, to wit: a change in circumstances to the detriment of the former wife. And authorities that permit an increase in periodic alimony solely because of the increase in earning capacity of the former husband I would either not follow because they were rendered prior to the modern concepts of divorce law [see: Beard v. Beard, Fla.App.1972, 262 So.2d 269, 270; Lefler v. Lefler, Fla.App.1972, 264 So.2d 112; Thigpen v. Thigpen, Fla.App.1973, 277 So.2d 583 (Opinion filed May 10, 1973)], or, if rendered in recent years, I would respectfully decline to follow as not being the proper course that the law should follow at this time.
BARKDULL, Chief Judge
(concurring in part; dissenting in part).
I concur in so much of this opinion that approved an increase in child support, based upon a showing of increased ability of the father to provide support and maintenance for his children. This is in accordance with the applicable authorities.
However, I have strong convictions that the former wife in the instant matter is not entitled to a raise in alimony. As I understand this record, it is conceded that the alimony as originally awarded was commensurate with the scale of living maintained by the appellant during the time the parties were man and wife. The only change in circumstances has been the increased earning capacity of the former husband. In this enlightened age of women’s lib, no fault divorce, etc., I think it is foolish for the courts to hold that a former wife may come in [I assume at any time] and upon a showing of an increase in earnings by her former husband receive an increase in alimony. As I understand periodic alimony, it is to be awarded for the purpose of permitting the former wife to live in the manner and custom established by the husband. Concededly, periodic alimony in this case in the original instance accomplished this purpose. Following the reasoning of the majority, what would be the time limit, if any, when a former wife could seek an increase in alimony based solely upon the improved earning capacity of her former husband? Is it one, five, ten or twenty years ? Obviously, laches couldn’t begin to run until such time as the husband had the increased earning capacity.
Following the majority’s opinion to a logical conclusion, a former wife receiving periodic alimony could hold her former husband to an increase in alimony upon increased earnings at any time during the remainder of his life. I don’t think the courts should condone such action. Many of the authorities cited in the majority opinion, which approved an increase in alimony, had an additional element other than the mere increase in earning capacity of the former husband, to wit: a change in circumstances to the detriment of the former wife. And authorities that permit an increase in periodic alimony solely because of the increase in earning capacity of the former husband I would either not follow because they were rendered prior to the modern concepts of divorce law [see: Beard v. Beard, Fla.App.1972, 262 So. 2d 269, 270; Lefler v. Lefler, Fla.App.1972, 264 So. 2d 112; Thigpen v. Thigpen, Fla.App.1973, 277 So. 2d 583 (Opinion filed May 10, 1973)], or, if rendered in recent years, I would respectfully decline to follow as not being the proper course that the law should follow at this time.
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Cited By (11 total)
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Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978)…1970), Hubble v. Hubble, 214 So. 2d 896 (Fla. 1st DCA 1968). Even where the only change in circumstance is nothing more than a substantial increase in the earnings of the former spouse, child support may nonetheless be increased. Sherman v. Sherman, 279 So. 2d 887 (Fla. 3d DCA 1973). We have carefully examined the record, considered the needs of the children and the father’s ability to pay. We con-elude that the child support payments authorized by the trial judge were simply not in proportion to the father’…
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Diane v. Bedell, 583 So. 2d 1005 (Fla. 1991)…increase in alimony. I believe it must be coupled with a showing of increased need or that the needs were not met at the time of the dissolution for reasons that have now changed. I support the strong dissent of Judge Barkdull in Sherman v. Sherman, 279 So. 2d 887 (Fla. 3d DCA), cert. dismissed, 282 So. 2d 877 (Fla.1973), which is now the view of the third district court of appeal. I believe the district court in this case properly stated the law, but improperly ap [*1009] plied the facts. Mrs. Bedell demon…
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Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980)…ances, a court can properly assume that his earnings and assets have substantially increased. A substantial increase in the earnings of the husband will, by itself, justify an increase in child support. Meltzer v. Meltzer, supra; Sherman v. Sherman, 279 So. 2d 887 (Fla.3d DCA 1973). We conclude that the trial court’s failure to increase the child support payments constitutes an abuse of discretion. One point remains to be considered. The father, asserting that it would be in the best interests of the childre…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Manly W. Thigpen v. Thigpen, 277 So. 2d 583 (Fla. 1st DCA 1973)
- Meltzer v. Meltzer, 262 So. 2d 470 (Fla. 3d DCA 1972)
- State of Fla. Dep't OF Transp. v. Armer E. White, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Beard v. Beard, 262 So. 2d 269 (Fla. 1st DCA 1972)
- Hayborn v. State, 264 So. 2d 112 (Fla. 4th DCA 1972)
- McARTHUR v. McARTHUR, 95 So. 2d 521 (Fla. 1957)
- Terry v. Gertrude S. Terry, 126 So. 2d 890 (Fla. 2d DCA 1961)
- Richmond N. Waller v. Waller, 212 So. 2d 352 (Fla. 3d DCA 1968)