Burdack v. Burdack, 77-259
| Decision Date | 25 May 1979 |
| Docket Number | No. 77-259,77-259 |
| Citation | 371 So.2d 528 |
| Parties | Judith H. BURDACK, Appellant, v. Friedrich W. BURDACK, Appellee. |
| Court | Florida District Court of Appeals |
Robert W. Morrison, Tampa, for appellant.
Britt Whitaker, Tampa, for appellee.
On this appeal we reverse that part of a postjudgment order which modified and reduced the amount of previously agreed upon and ordered child support payments. The issue is whether there was sufficient evidence of a substantial and permanent reduction in the husband's ability to pay to support the reduction. We find there was not.
The 1974 final judgment which dissolved the marriage of the parties required the husband to pay the wife $90 per week as child support for their three year old son. Later the parties stipulated to a reduction to $75 per week and on March 20, 1975 the trial court entered an order modifying the judgment to conform to that agreement. The pleadings giving rise to this appeal commenced in August 1976 when the wife moved the court to hold the husband in contempt for his failure to make those payments which she alleged were in arrears. The husband replied and petitioned for forgiveness of the arrearages and for further reduction in child support payments. After a hearing the trial court entered the order of January 13, 1977 which we have for review. The order modified the order of March 20, 1975 by reducing the payment to $60 per week. The trial court also found arrearages in the amount of $1,064 and required the husband to pay an additional $25 per week until that sum was satisfied. Thus his total weekly payment was to be $85. The immediate net effect on the husband was an increase of his total weekly outlay for child support by $10 over the amount set in the previous court order until satisfaction of the arrearage. We cannot say the record shows error in the trial court's conclusion that the husband had the present ability to pay that slightly increased amount to catch up on the past due installments which had become vested property rights. We do find, however, that it was an abuse of discretion to reduce the permanent payments from $75 to $60 per week. Because we do not disturb the finding of the trial court as to the total amount the husband can now pay, we reallocate the amount to be applied to the arrearage in the decision portion of this opinion.
The evidence at the hearing held January 10, 1977 revealed the following circumstances. Since the order of March 20, 1975 requiring the weekly payments of $75, the needs of the child have not decreased. The wife, who has a nondisabling health problem, is, and has been since before the dissolution of marriage, a school teacher. If the trial court were to consider any relevant change in her financial condition it must, of course, begin with her financial circumstances on March 20, 1975 when the parties agreed to, and the court ordered, the weekly amount of $75. It is clear from the record that the modest annual increases in her contract salary for the years 1975, 1976 and 1977 do not constitute a substantial change in her financial circumstances since the order of March 20, 1975.
The husband, who also has a nondisabling health problem, is a union member who has been employed for a number of years with Anheuser Busch, Inc. While the record does not reveal his net income, his gross income for 1975 was $18,436 when he earned between $6.55 and.$7.00 per hour, and $12,240 in 1976 when he earned.$7.00 per hour before a strike by his union, and $7.69 per hour since then. The reduction in his 1976 income was totally attributable to the fact that his union was on strike for fourteen weeks during the spring of that year. His hourly rate of pay was further scheduled to rise to $8.29 a short time after the hearing. The trial court opined that with his poststrike raises the husband's 1977 income would probably actually increase over 1976. The court also stated that because of the loss of income during the strike in 1976, the husband had shown "some change in circumstances."
It is the husband's contention, supported by the trial court and disputed by the wife, that...
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