DAVID SAMUEL BRADLEY, APPELLANT,
v.
JUDITH ANNE BRADLEY, APPELLEE

Fla. 3d DCA | 1977-06-28
Nos. 76-1147 and 76-1164
Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
347 So. 2d 789 Florida District Court of Appeal, Third District (1977) Positive Treatment
Cited by 21 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A former husband appeals the trial court's denial of his petition to modify alimony and child support obligations following his remarriage and claimed substantial decrease in income. The appellate court affirmed the trial court's decision, holding that the trial court properly considered all relevant factors and that appellate review does not permit substitution of judgment on evidentiary matters.


Holding

The trial court did not abuse its discretion in denying the modification petition. The appellate court affirmed the orders, holding that the trial court properly evaluated and weighed the testimony and evidence, and that the appellate court cannot re-evaluate or substitute its judgment for that of the trial court on evidentiary matters.


Headnotes

[1] An appellate court will affirm a trial court's decision unless the testimony or evidence is inherently incredible and improbable.

[2] A trial court's determination of alimony and child support obligations is entitled to deference on appeal.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“It is the function of the trial court to evaluate and weigh the testimony and evidence and once done, it is not the function of the appellate court to re-evaluate or substitute its judgment for that of the trial court, subject to the appellate court's right to reject inherently incredible and improbable testimony or evidence.”

Establishes the standard of review for appellate courts in family law modification cases, limiting appellate review to situations where evidence is inherently incredible or improbable.

Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The trial court entered a final judgment dissolving the marriage on September 9, 1975, awarding the appellee custody of two minor children and requiri…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant takes these consolidated appeals from an order denying his petition for modification and from an order denying his petition for rehearing.

A final judgment dissolving the marriage of the parties was entered by the trial court on September 9, 1975. The final judgment awarded custody of the couple’s two minor children to appellee, and required appellant to pay $850.00 a month as alimony and $300.00 a month as child support.

On February 17,1976, appellant, who had remarried shortly after the dissolution, filed a sworn petition for modification, alleging that his income had substantially diminished as of January 1,1976. This petition was denied, as was a subsequent petition for rehearing on the merits of the modification. From the denial of both the petition for modification and the petition for rehearing, these consolidated appeals follow.

We are quite cognizant of the fact, as was the chancellor, that appellant’s income has substantially decreased. We are also keenly aware of appellant’s contention that his current monthly gross income will almost entirely become exhausted by alimony and support payments. Nevertheless, after carefully reviewing the record, briefs and arguments of counsel, in the light of the controlling principles of law, we are of the opinion that the orders appealed from must be affirmed.

We note that in rendering her decision, the chancellor took into consideration appel-lee’s physical and mental condition (which prohibited her from taking employment), the needs of both appellee and the minor children and the fact that appellant is both young and healthy with capabilities of much higher earnings. In addition, it would appear from the record that the chancellor was aware of some of appellant’s business misfortunes at the time of the final judgment of dissolution, which was not appealed by appellant.

It is the function of the trial court to evaluate and weigh the testimony and evidence and once done, it is not the function of the appellate court to re-evaluate or substitute its judgment for that of the trial court, subject to the appellate court’s right to reject inherently incredible and improbable testimony or evidence. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976). Accordingly, the orders appealed from are hereby affirmed.

Affirmed.

Concurrence
HUBBART, Judge

HUBBART, Judge

(concurring).

I concur in the court’s affirmance in this case solely on the ground that the record fails to establish as a matter of law that the husband-appellant’s income has been substantially reduced since the date of the final decree sufficient to require a modification in the alimony and/or child support awards made in the final decree. The trial judge herein found that the husband had not sustained his burden of proof on this issue and I cannot say that the court abused its discretion in this respect. Fleischer v. Fleischer, 149 Fla. 621, 6 So. 2d 836 (1942); Fowler v. Fowler, 112 So. 2d 411 (Fla. 1st DCA 1959).

The record upon which the appellant relies for reversal is far from clear, but the evidence adduced at the hearing on the petition for modification appears to indicate that there has been a change in the contractual relationship between the husband and his employer insurance company, which change the husband anticipates will result in a significant reduction in his insurance sales commissions. The record, however, is confusing as to whether the anticipated reduction has actually occurred. Moreover, the record fails to establish that the reduction, if any, is reasonably expected to remain so for the foreseeable future.

If in a future petition for modification, the husband can prove a substantial reduction in his income since the final decree, which reduction can reasonably be expected to remain so for the foreseeable future, the trial court would be obligated to reduce the alimony and/or child support awards herein under Section 61.14(1), Florida Statutes (1975), even though there has been no change in the position or reduction in the financial needs of the wife and minor children. Vilas v. Vilas, 153 Fla. 102, 13 So. 2d 807 (1943); Denny v. Denny, 334 So. 2d 300 (Fla. 1st DCA 1976);. Gamse v. Gamse, 291 So. 2d 620 (Fla. 3d DCA 1974). Since the husband has failed to make the requisite showing to be entitled to a modification of the alimony and/or child support awards in the instant case, I am compelled to concur in the court’s affirmance herein.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979)
    …earn by the use of his best efforts to gain employment equal to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed. Fried v. Fried, 375 So. 2d 46 (DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla.3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla.3d DCA 1975); Foster v. Foster, 537 S.W. 2d 833 (Mo.Ct.App.1976); Faye v. Faye, 131 Misc. 388, 226 N.Y.S. 729 (Sup.Ct.1928); Annot., 18 ALR2d 10 at § 15 (1951). In such a situation, an a…
  • Scapin v. Scapin, 547 So. 2d 1012 (Fla. 1st DCA 1989)
    …arning may be imputed in determining the amount of court ordered obligations, even if the result requires a spouse to pay support which entirely exhausts the actual income. Ward v. Ward, 502 So. 2d 477 (Fla. 3d DCA 1987); Maddux; Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977). Moreover, income may be imputed to a former spouse for purposes of awarding alimony and child support, even if it is difficult to establish its source. Scotchel v. Scotchel, 524 So. 2d 1045 (Fla. 4th DCA 1988). The trial court i…
  • Ward v. Espy E. Ward, 502 So. 2d 477 (Fla. 3d DCA 1987)
    …capable of earning would be imputed to him in determining the amount of support he should be required to give to his wife, Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979); Fried v. Fried, 375 So. 2d 46 (Fla. 2d DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla. 3d DCA 1975), even if the result were to be to require the husband to pay an amount of alimony entirely exhausting his actual income. Bradley v. Bradley, 347 So. 2d 789. The mere “use…
    1 / 2

Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw