IN RE THE MARRIAGE OF JAMES M. JOHNSON, HUSBAND AND SYDNA CHERYL JOHNSON, WIFE
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The wife appealed a modification order reducing the husband's child support obligation. The court reversed, holding that voluntary changes in circumstances, including remarriage and voluntary job changes, cannot justify a reduction in child support payments.
Voluntary changes in circumstances cannot warrant a reduction in child support. The husband's remarriage expenses are not relevant or material to child support determinations, and voluntary job changes resulting in lower earnings do not justify modification. Lack of counsel at the time of dissolution is not a valid ground for modification.
[1] A reduction in child support requires changed circumstances that are substantive, material, involuntary, and permanent.
[2] Voluntary changes in employment or increased expenses due to remarriage do not warrant a reduction in child support.
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Join FLexlaw to unlock all legal intelligence“Florida courts have uniformly held that a reduction in child support may be warranted upon changed circumstances which are substantive, material, involuntary and permanent in nature.”
Establishes the legal standard for modification of child support
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Join FLexlaw to unlock all legal intelligenceThe husband petitioned to modify child support, citing his remarriage, job change resulting in lower earnings, and lack of counsel at the time of diss…
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BOYER, Judge.
This is an appeal by the wife from that portion of an “Order Modifying Child Support and Visitation” reducing child support payments and retrospectively measuring delinquent child support payments by such reduced amount.
The husband petitioned for modification of child support on the grounds that: (1) He has since remarried, has changed jobs and is now making less than he was on the date of the final judgment, and (2) the wife herein is remarried. He also argues his lack of counsel at the time of dissolution.
The wife contends that the changed circumstances of the husband are voluntary in nature and cannot warrant a reduction in child support. The remarriage of the husband, with its attendant expenses, is neither relevant nor material to the issue of child support. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938) and Walden v. Walden, 114 So. 2d 815 (Fla.2nd DCA 1959). In addition, the wife contends the record reveals that the husband’s job changes were voluntary and, indeed, his present job has increased his earnings from what they were at the time of the dissolution.
We agree and reverse.
Florida courts have uniformly held that a reduction in child support may be warranted upon changed circumstances which are substantive, material, involuntary and permanent in nature. (See Bergh v. Bergh, 160 So. 2d 145 (Fla. 1st DCA 1964); Groves v. Groves, 260 So. 2d 858 (Fla. 1st DCA 1972); and Brown v. Brown, 315 So. 2d 15 (Fla.3rd DCA 1975). The record sub judice reveals that while the husband does show certain changes in circumstances the changes were strictly voluntary in nature and cannot warrant a reduction in child support. As to the husband’s lack of counsel at the time of dissolution, we agree with our sister court, the Fourth District, where that court stated in Hicks v. Hicks, 313 So. 2d 64, 65 (Fla.4th DCA 1975):
“ * * * Nor, in this context, is lack of advice of counsel such a ground; surely, a husband does not need a lawyer to advise him on the amount he should pay for child support.”
Since we reverse on the reduction in child support, the reduction of delinquent child support payments is necessarily reversed.
The motion of appellant-wife for an award of fees and costs on account of legal services on appeal is GRANTED. The case is remanded to the trial court for determination and assessment of the amount of reasonable fees for the services of appellant’s attorney on appeal. (See Dresser v. Dresser, 350 So. 2d 1152 (Fla.App.1st DCA 1977).
Reversed and remanded with directions.
McCORD, C. J., and MELVIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Overbey v. Overbey, 698 So. 2d 811 (Fla. 1997)…found that such a change in circumstances must be significant, material, involuntary, and permanent in nature to warrant a reduction in payments. Chastain; Tietig, 602 So. 2d at 1251 (McDonald, J., concurring); Deatherage; In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). These requirements have developed in part to ensure that the duty to furnish adequate support is not deliberately avoided. Under this rule, even if a payor parent experiences a reduction in income or net worth, a request for a r…
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Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)…nt, variously described in the cases as “significant,” Burdack v. Burdack, 371 So. 2d at 528; Deatherage v. Deatherage, 395 So. 2d at 1169; “sufficient,” Bish v. Bish, 404 So. 2d 840 (Fla. 1st DCA 1981); and “substantive,” In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). The difficulty we have is with the imposition of a “heavier burden” where the amount of child support payments is established by agreement. The general rule in civil cases is that the party having the burden of proof must demons…1 / 2
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Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA 1981)…mstances, including financial circumstances of one or both of the parties. Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975). This change in circumstances must be significant, material, involuntary, and permanent in nature. In re Marriage of Johnson, 352 So. 2d 140 (Fla. 1st DCA 1977). The party seeking modification has the burden of showing this change in circumstances. Meltzer v. Meltzer, 356 So. 2d 1263 (Fla. 3d DCA 1978). And where, as here the amount of child support is based upon an agreement by the part…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pottinger v. Pottinger, 133 Fla. 442 (Fla. 1938)
- Peavy v. State, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Brown v. Brown, 315 So. 2d 15 (Fla. 3d DCA 1975)
- Bergh v. Bergh, 160 So. 2d 145 (Fla. 1st DCA 1964)
- Hicks v. Hicks, 313 So. 2d 64 (Fla. 4th DCA 1975)
- Walden v. Walden, 114 So. 2d 815 (Fla. 2d DCA 1959)
- Kent v. Allstate Ins. Co., 260 So. 2d 858 (Fla. 4th DCA 1972)
- Groves v. Groves, 260 So. 2d 858 (Fla. 1st DCA 1972)