Fritz v. Fritz

• Decision Date: 25 March 1986
• Docket Number: No. 85-1770,85-1770
• Citation: Fritz v. Fritz, 485 So.2d 488, 11 Fla. L. Weekly 727 (Fla. App. 1986)
• Parties: 11 Fla. L. Weekly 727 Aleyda FRITZ, Appellant, v. William I. FRITZ, Appellee.
• Court: Florida District Court of Appeals

Page 488

485 So.2d 488

11 Fla. L. Weekly 727

Aleyda FRITZ, Appellant, v. William I. FRITZ, Appellee.

No. 85-1770.

District Court of Appeal of Florida Third District.

March 25, 1986.

Taffer & Jacobs and Jack Taffer, Miami, for appellant.

Sams, Ward, Newman, Elser & Lovell and Marsha Elser and Susan A. Perkins, Miami, for appellee.

Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.

PER CURIAM.

The mother appeals an order requiring her to make child support payments. We reverse.

In a stipulation, approved by the court, entered after final judgment in a dissolution action, the parties agreed to transfer custody of their minor children from the mother to the father. In the stipulation, the parties agreed that the father would pay all costs for rearing and caring for the children and the mother would not be obligated to pay child support. Three months after this stipulation was entered, the father filed a petition for modification seeking child support payments from the mother.

The matter proceeded to hearing before the general master. Following the hearing, the master filed a report recommending an order be entered requiring the mother to make child support payments. Although the report expresses a finding of a "substantial change" in circumstances, it does not set forth any factual support for said finding, but rather, the recommendation appears to be grounded on the "best interest of the children" standard. The mother's exceptions to the general master's report were denied and the lower court ratified and approved the report and adopted the recommendations contained therein. The mother appeals.

The principles of law applicable in this case were succinctly set forth in Deatherage v. Deatherage, 395 So.2d 1169, 1170 (Fla. 5th DCA), dismissed, 402 So.2d 609 (Fla.1981):

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).

This court has previously recognized 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. Vanden Bosch v. Elkins, 419 So.2d 1127 (Fla. 3d DCA 1982). See Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982); §§ 61.13, 61.14, Fla.Stat. (1983).

After reviewing the record, we find that there was no evidence presented to the general master which would support the finding of a substantial change in circumstances. It is undisputed that neither the income of the parties nor the needs of the children had substantially changed between the time the stipulation was entered and three months later when the modification was sought. The father argues, however, that the finding is supported by evidence indicating the mother has not enforced her visitation rights, thus, the expenses of the children which the wife would have borne during visitation periods have been imposed upon the husband and this added expense was not anticipated at the time the stipulation was entered. We reject this argument. The father was clearly aware of the strained relationship between the mother and the children at the time the stipulation was entered. Although the mother has made numerous attempts at visitation since primary custody of the children was transferred to the father, very little visitation has occurred. This situation has resulted from the facts that the children, ages ten and six, do not want to see their mother and the father tells them "to do whatever they want to do" with regard to the visitation. It is patently clear from the record that the father's permissive attitude, permitting children of such tender years to determine if and when they will allow their mother to exercise her visitation privileges, invited the very situation about which the father complains.

It must be emphasized that the parties entered into an express contract with provisions for child support and, therefore, general principles of contract law must be applied. See Isaacs v. Deutsh, 80 So.2d 657 (Fla.1955). The contract specifically provides that the father will undertake the expenses of raising the children and that the mother "shall not be obligated to pay child support for the two minor children." It is only because the subject matter of the contract is child support that the...