Allen v. Allen, 90-00036

• Decision Date: 09 November 1990
• Docket Number: No. 90-00036,90-00036
• Citation: Allen v. Allen, 569 So.2d 875 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D2753 Kenneth E. ALLEN, Jr., Appellant, v. Nancy J. ALLEN, Appellee.
• Court: Florida District Court of Appeals

Page 875

569 So.2d 875

15 Fla. L. Weekly D2753

Kenneth E. ALLEN, Jr., Appellant, v. Nancy J. ALLEN, Appellee.

No. 90-00036.

District Court of Appeal of Florida Second District.

Nov. 9, 1990.

Beach A. Brooks, Jr. of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Winter Haven, for appellant.

William C. Hamm, Jr. of Smith & Hamm, P.A., Lake Alfred, for appellee.

SCHOONOVER, Chief Judge.

The appellant, Kenneth E. Allen, Jr., challenges an order modifying a final judgment of dissolution of marriage. We reverse.

A final judgment dissolving the parties' marriage was entered on September 15, 1988. The judgment incorporated a settlement agreement entered into between the appellant and the appellee, Nancy J. Allen. Pursuant to the agreement and the final judgment, the appellant was required to pay the sum of $200 per month for the support of the parties' minor child.

Approximately nine months after the final judgment was entered, the appellee filed a petition seeking to modify the child support payments. At the conclusion of the hearing on the appellee's petition, the court entered an order modifying the final judgment, and the child support payments were increased from $200 per month to $583 per month. The appellant filed a timely notice of appeal.

A party seeking modification of a child support provision in a final judgment of dissolution of marriage has the burden of showing a substantial change of circumstances, including the financial circumstances of one or both of the parties. Furthermore, when the amount of child support payments is based upon an agreement between the parties, as in this case, a heavier burden rests upon the party seeking modification. Nolte v. Nolte, 544 So.2d 1146 (Fla. 2d DCA 1989); Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982). The appellee did not carry her burden in this case. We realize that it is not our function in reviewing the order before us to reevaluate the testimony presented to the trial judge or to substitute our judgment for his. It is our duty, however, to carefully review the record to see whether his judgment is in fact supported by competent evidence. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978). The record in this case does not support a modification of child support payments.

The wife not only failed to present sufficient competent evidence to establish that the needs of the parties' child had substantially increased in the nine month period since the final judgment had been entered, but she also failed to establish that her ability to help support the child...