Bernstein v. Bernstein, 85-1134
| Decision Date | 15 October 1986 |
| Docket Number | No. 85-1134,85-1134 |
| Citation | 11 Fla. L. Weekly 2212,498 So.2d 1270 |
| Parties | 11 Fla. L. Weekly 2212 Michele BERNSTEIN n/k/a Michele Alexanne, Appellant/Cross Appellee, v. Richard BERNSTEIN, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
John R. Young of James and Young, West Palm Beach, for appellant/cross appellee.
Marjorie Gadarian Graham, Sidney A. Stubbs, Jr. of Jones & Foster, P.A., West Palm Beach, for appellee/cross appellant.
Michele Bernstein, n/k/a Michele Alexanne, appeals the denial of her petition for an upward modification of child support and for attorney's fees. Visitation and child support were established by a Settlement Agreement which was incorporated in a final judgment of dissolution of marriage, entered in March of 1983. Denial of modification was based upon Michele's failure to sufficiently establish a change in circumstance. The trial court relied on the following statement of the law in denying her application:
Modification of child support and visitation provisions which are included in a settlement agreement incorporated into a final judgment require [sic] that the party seeking modification show a substantial change of circumstance which is significant, material, involuntary and permanent in nature. Where, as here, the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. See Deatherage v. Deatherage, 395 So.2d 1169 (5 DCA FLA 1981); Lacy v. Lacy, 413 So.2d 472 (2 DCA FLA 1982); Burdack v. Burdack, 371 So.2d 528 (2 DCA FLA 1979); Flynn v. Flynn, 433 So.2d 1037 (4 DCA FLA 1983).
Both aspects of the trial court's summary of the law find support in the cases cited and others. All of the cases we have examined hold that the change in circumstances must be material, involuntary and permanent in nature. They also agree on a fourth requirement, although employing different labels: that the change be quantitatively significant, 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 demonstrate his right to prevail by a preponderance of the credible evidence. The burden of proof is ordinarily upon the party moving for relief, or, as here, seeking change or modification. Should the fact that Michele seeks to modify rights and obligations under an agreement somehow shift the burden of proof or make it more onerous? Or, as another court, approving the "heavier burden" concept, explains in amplification of the kind of showing that is required, are the cases really saying that "different rules apply to applications for modification of child support depending upon whether the support provisions are entered by order of the court or stipulated to by the parties"? Fritz v. Fritz, 485 So.2d 488, 489 (Fla. 3d DCA 1986) (citations omitted).
In order to answer that question it is necessary to find the source of the requirement that a heavier burden be imposed.
The following statement of the law applicable where modification of a contractual right to child support is sought first appeared in Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979), is repeated in Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA), appeal dismissed, 402 So.2d 609 (Fla.1981), and is quoted with approval in Fritz, 485 So.2d at 489:
A fundamental prerequisite to modification of child support payments is a showing of substantial change of circumstances, 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 parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973).
The courts in both Burdack and Deatherage rely upon Scott for the proposition that: "[W]here, as here the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required." 371 So.2d at 529; 395 So.2d at 1170.
The court in Scott actually stated the following: 285 So.2d at 424-25 (emphasis added). Child support was not at issue. As indicated, the court in Scott relied upon three cases to support its "heavier burden" rule. Fowler and Ohmes involve no child support issues. In Nixon the "heavier burden" rule was applied solely to the alimony issue although there was also a child support issue on appeal.
It appears, then, that the "heavier burden" rule had its beginnings in alimony cases. Whether the transposition of the rule from an alimony setting to a child support setting by Burdack was inadvertent or purposeful is not apparent from reading the case. In either event, we question its appropriateness.
The best interests of the children are paramount in proceedings dealing with custody and child support. The statements in the cases are legion that these paramount interests will be protected by the state and by the courts, ex mero motu, should they be overlooked or adversely affected by actions of the parties:
"We know of no rule of law by which a father [or a mother] may by contract obviate or impair his [or her] obligation to support ... minor children...." Lee v. Lee, 157 Fla. 439, 26 So.2d 177, 179 (1946).
"Not only is this principle [welfare of minor children] implicit in [any] separation agreement but additionally it transcends any contractural [sic] provision in derogation thereof." Lang v. Lang, 252 So.2d 809, 812 (Fla. 4th DCA 1971).
"The law is clear that the parents may not contract away the rights of their child for support." Armour v. Allen, 377 So.2d 798, 799-800 (Fla. 1st DCA 1979). And as Judge Booth aptly stated in Armour: Id. at 800.
The authority to modify child support, regardless of any contract between the parents, is inherent in a court's authority. Guadine v. Guadine, 474 So.2d 1245 (Fla. 4th DCA 1985).
Such a contract [dealing with child support] will be given effect only to the extent that it is in the best interests of the child. Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967).
If the law does not permit the provisions of an agreement pertaining to child support to prevail over the best interests of the child, we suggest that the mere existence of such an agreement should not be permitted to do so. Imposing a heavier burden upon the party seeking to vindicate those interests in fact subordinates the best interests of the child to contractual and procedural considerations.
The language of the applicable statute, which has been with us at least since 1935 in one form or another, makes no distinction between obligations imposed by the court and obligations established by a settlement agreement. The pertinent subparagraph of section 61.14, Florida Statutes (1985), provides:
(1) When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed or the child or children who are beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.
Finally, there are the practical aspects of the situation to be considered. The trial court sets an amount of child support after careful consideration of the financial circumstances of the parties, including their assets, income, and expenses; the ordinary and special needs of the child; the standard of living of the parties; and other factors. The best interests of the child, however, are predominant in establishing the amount of child support.
While the trial court is required to examine a proposed settlement agreement dealing with custody and child support to safeguard the...
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