Essex v. Ayres

• Decision Date: 17 March 1987
• Docket Number: No. 86-1396,86-1396
• Citation: 503 So.2d 1365,12 Fla. L. Weekly 782
• Parties: , 12 Fla. L. Weekly 782 Michael Joseph ESSEX, Appellant, v. Margaret Elizabeth AYRES, Appellee.
• Court: Florida District Court of Appeals

Page 1365

503 So.2d 1365

55 USLW 2583, 12 Fla. L. Weekly 782

Michael Joseph ESSEX, Appellant, v. Margaret Elizabeth AYRES, Appellee.

No. 86-1396.

District Court of Appeal of Florida Third District.

March 17, 1987.

Koltun & Greenberg and Dennis A. Koltun and Deanna Shifrin, Miami, for appellant.

Thomas J. McLaughlin, Miami, for appellee.

Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

In the recent case of Bernstein v. Bernstein, 498 So.2d 1270, 1273 (Fla. 4th DCA 1986), the Fourth District Court of Appeal, sitting en banc, rejected the proposition, announced in a number of earlier cases, "that there is a heavier burden on one moving for a change in the amount of child support established by a settlement agreement than where the amount has been established by the trial court." We agree entirely with the Fourth District that parties who have agreed on the amount of child support should not be saddled with a heavier burden to modify the amount than parties who have had the amount determined by a court. But, unlike the Fourth District, we believe that merely equalizing the burden of parties seeking modification does not adequately solve the problem of remedying an agreement to support which is not, ab initio, in the best interests of the child or children. We conclude, therefore, that a party seeking a change in the amount of child support provided in an agreement which has not previously been reviewed and approved by a court should not be required to prove a substantial change in circumstances--that is, a change from the time the amount of child support was agreed upon to the time modification is sought--and need prove only (in addition to ability to pay) that the amount agreed upon between the parties is not in the best interests of the child.

In the case before us, a daughter was born out of wedlock to the parties in August 1982. Almost a year later, in July 1983, they entered into an agreement under which Essex, the father, would pay $200.00 a month child support (secured by a life insurance policy on the father) until the child reached her majority. The agreement further provided that there would be an increase of $50.00 a month in November 1983 when Essex was due to receive a raise in salary. When the father, having received his anticipated raise, failed to pay the additional $50.00 a month, the mother sued to enforce the agreement and to increase the amount provided. Ayres' complaint did not allege a change of circumstances, but did allege that the amount of child support called for by the agreement was inadequate to support the child. The trial court ordered payment of arrears and increased the child support payments to $350.00 a month. The father appeals, asserting that Ayres' failure to allege and prove a change in circumstances precluded the trial court from granting her relief.

We need not here repeat Bernstein 's thorough unraveling of how the heavier burden rule, arguably appropriate to an agreement for alimony, was first inappropriately applied to an agreement for child support in Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979), and how, thereafter, the rule of Burdack, apparently considered sacrosanct by later litigants, became entrenched more solidly than its shaky foundation merited. See, e.g., Stein v. Stein, 496 So.2d 196 (Fla. 3d DCA 1986). What does bear repeating is the long-standing and far more fundamental rule that a parent may not by contract impair his or her obligation to support a minor child, Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Bess v. Bess, 471 So.2d 1342 (Fla. 3d DCA 1985); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980), and its corollary that only such contracts that are consistent with the best interests of the minor child will be enforced, Gammon v. Cobb, 335 So.2d 261, 266-67 (Fla.1976); Armour v. Allen, 377 So.2d 798, 800 (Fla. 1st DCA 1979); Sirkin v. Sirkin, 204 So.2d 13 (Fla 3d DCA 1967). ¹ The vitality of this latter rule is quite obviously sapped when a parent who has, for whatever reason, agreed upon an inadequate amount of child support is charged with the burden, however slight, to establish not only the inadequacy of the amount, but, in addition, a change in circumstances from the...