Evans v. Evans

• Decision Date: 02 March 1992
• Docket Number: No. 91-2422,91-2422
• Citation: 595 So.2d 988
• Parties: 17 Fla. L. Weekly D612 John M. EVANS and State of Florida, Department of Health and Rehabilitative Services, Appellants, v. Barbara Jean EVANS, Appellee.
• Court: Florida District Court of Appeals

Page 988

595 So.2d 988

17 Fla. L. Weekly D612

John M. EVANS and State of Florida, Department of Health and Rehabilitative Services, Appellants, v. Barbara Jean EVANS, Appellee.

No. 91-2422.

District Court of Appeal of Florida,

First District.

March 2, 1992.

Joseph R. Boyd and William H. Branch of Boyd & Branch, Tallahassee, and Chriss Walker, Dept. of Health and Rehabilitative Services, for appellants.

Rita G. Hawkins of Syfrett & Hawkins, Panama City, for appellee.

KAHN, Judge.

Appellant John Evans appeals after his unsuccessful attempt to obtain an order requiring his former wife, Barbara, to pay support for the two children born of their marriage. For the reasons set out in this opinion, we believe that Mr. Evans is entitled to a full hearing on the child support issue, and accordingly we remand this matter for further proceedings.

Mr. and Mrs. Evans obtained a final judgment of dissolution of marriage on April 24, 1987. The final judgment incorporated a stipulation under which the parties agreed to share parental responsibility for the two minor children, with Mr. Evans maintaining the primary physical residence for the children. Neither the final judgment nor the stipulation incorporated therein addresses the obligation of either Mr. or Mrs. Evans to provide any sort of support for the minor children. The final judgment contained the following clause:

That except for the dissolution of marriage granted herein, this Court retains jurisdiction of this entire matter to enter any further orders that may be appropriate, equitable, and just.

On July 20, 1989, Mrs. Evans sought modification of the final judgment, alleging that she should be deemed the primary residential parent. Mr. Evans, acting without the benefit of counsel, filed a "Supplemental Reply," maintaining that he should remain the primary residential parent and that the former wife should be required to pay child support. He also sought an order setting out specific visitation periods for Mrs. Evans. Significantly, in her complaint for modification of custody, Mrs. Evans alleged that as of July 20, 1989, she was "currently employed on a full-time basis." Mr. Evans' reply noted that since the dissolution he had received no support of any kind from his former wife.

On December 28, 1989, Mr. Evans, by then represented by Legal Services of North Florida, filed a motion for nonjury trial requesting that the "Petition for Modification of Custody" be set for final hearing. In response to this motion, the trial judge scheduled the matter for nonjury trial on March 19, 1990. Subsequently, the parties stipulated in writing to continue the final hearing until September 5, 1990. On September 17, 1990, the trial judge entered an order denying Mrs. Evans' motion to modify custody. This order did not rule upon, or even purport to address, Mr. Evans' earlier motion for child support.

On November 2, 1990, the Department of Health and Rehabilitative Services, on behalf of Mr. Evans, filed a boilerplate pleading denominated "Petition for Modification." Although entitled "Petition for Modification," the pleading contained a specific allegation that the previously entered final judgment failed to provide child support or health insurance coverage for the minor children. Mrs. Evans answered the petition by specifically denying these allegations, but raised no affirmative defenses such as res judicata. ¹

The case proceeded to final hearing on June 11, 1991. Without making any findings, the trial court denied Mr. Evans' petition "in its entirety."

The order now under appeal is the first order, as between Mr. and Mrs. Evans, that specifically addresses the question of child support. The court below seemed quite concerned that Mr. Evans was not prepared to prove increased earning capacity on the part of his former wife. The court failed to note two matters, however. ² First, Mrs. Evans had affirmatively averred in her 1989 complaint for modification of custody that she was, by that time, employed full time. The record before us indicates that Mrs. Evans was unemployed at the time of the original dissolution. Second, Mrs. Evans' attorney acknowledged at the June 1991 final hearing that Mrs. Evans had earned "some income." Based upon this, Mr. Evans' attorney, perhaps somewhat inartfully, argued that income should be imputed to Mrs. Evans. ³

The record also bears out that there was no dispute that Mr. Evans' expenses attributable to the children had increased since the dissolution. The trial judge made the following statement:

I do not think there has been sufficient showing--I'm willing to accept from you that it costs Mr. Evans more to maintain the needs of these children at this point, than when the divorce took place. But, the divorce court did not grant support, and a subsequent hearing did not grant support, and I'm not going to entertain--

To the extent that he based his conclusion on his belief that the original judge in the dissolution did not grant support, and the subsequent judge in the modification did not grant support, the trial judge below erred. The final judgment of dissolution purported only to dissolve the marriage and incorporate the parties' stipulation, and specifically reserved jurisdiction over other matters. The subsequent modification proceeding was noticed for trial only as to the custody matter. Accordingly, the trial court's implication that Mr. Evans is now barred by the two previous orders is incorrect.

The trial court also erred by failing to note that the specific language of Mr. Evans' petition made reference to the fact that the judge in the original dissolution action never ordered child support. Although the petition was entitled "Petition for Modification," it would have been appropriate to look to the body of the pleading to determine the nature of the relief being sought. It is the very strong public policy of this state to require a parent to provide support for his or her children. See, Guadine v. Guadine, 474 So.2d 1245 (Fla. 4th DCA 1985). Neither a marital settlement agreement nor any other contract will serve to abrogate a parent's obligation to support minor children. Essex v. Ayres, 503 So.2d 1365 (Fla. 3d DCA 1987); Department of Health & Rehabilitative Services v. Morley, 570 So.2d 402 (Fla. 5th DCA 1990). ⁴

On remand, the trial court should not treat the old decrees as bars to Mr. Evans' right to seek child support. Both the mother and the father are entitled to a full and fair hearing on the question. Needless to say, so are the minor children. Accordingly, the order under review is reversed and this cause is remanded for further proceedings consistent with this opinion.

WEBSTER, J., concurs.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge, concurring and dissenting.

I concur with the majority insofar as it remands the cause to the trial court for a hearing on the former husband's petition for modification of child support relating to any substantially changed circumstances that may have occurred after the September 17, 1990 order denying the former wife's petition to modify custody. I dissent, however, from that portion of the opinion permitting appellant the right to relitigate the issue of substantially changed circumstances transpiring before the entry of that order. Because appellant made a specific request for child support in his responsive pleading during the first modification proceeding, and therefore had the opportunity to try the issue of changed circumstances following the date of the dissolution, I consider that he is now barred by the doctrine of res judicata from seeking a modification as to any changed circumstances that may have occurred before the September 17, 1990 order which concluded that proceeding, even though it did not specifically address appellant's request for child support.

In reaching this conclusion, I think it helpful to restate certain principles of law relating to the doctrine of res judicata and the issue of whether that doctrine bars subsequently filed petitions to modify orders of child support. Res judicata is briefly defined as the doctrine that an existing final judgment on the merits rendered by a court of competent jurisdiction is conclusive of the rights, questions, and facts in issue, as to the parties and their privies, in any other action in the same or another court. 32 Fla.Jur.2d Judgments and Decrees Sec. 96 (1981). Thus, in the case of res judicata,

the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.... Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law, upon any ground whatever.

Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 352-53, 24 L.Ed. 195, 197-98 (1876) (emphasis added).

Orders providing for child support are, by their nature, impermanent in character and are res judicata of issues which either were decided or could have been decided so long as the facts and circumstances of the parties remain the same as when the former judgment or order was entered. Lopez v. Avery, 66 So.2d 689, 692 (Fla.1953); Eaton v. Eaton, 238 So.2d 166, 168 (Fla. 4th DCA 1970). Thus, the burden placed upon a party seeking a modification of a prior order relating to child custody or support requires that he or she prove a substantial change of circumstances following the date of the prior judgment or order regarding custody or the parties' ability to provide support or the needs of the children for same. Frumkes v. Frumkes, 349 So.2d 823, 824 (Fla. 3d DCA 1977). Accord Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991); ...