Lewis v. Lewis, 83-458

• Decision Date: 23 November 1983
• Docket Number: No. 83-458,83-458
• Citation: Lewis v. Lewis, 450 So.2d 1123 (Fla. App. 1983)
• Parties: Susan S. LEWIS n/k/a Susan Burch, Appellant, v. Robert M. LEWIS, Appellee.
• Court: Florida District Court of Appeals

Page 1123

450 So.2d 1123

Susan S. LEWIS n/k/a Susan Burch, Appellant, v. Robert M. LEWIS, Appellee.

No. 83-458.

District Court of Appeal of Florida Second District.

Nov. 23, 1983.

On Rehearing Jan. 25, 1984.

Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant.

Robert M. Lewis, pro se.

PER CURIAM.

Affirmed.

ON MOTION FOR REHEARING

In the motion for rehearing counsel for appellant wife cites Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983), which discusses the subject of so-called "PCA's", i.e., per curiam affirmances without opinion, and grounds for motions for rehearing. Whether or not the rendering of our per curiam affirmance in this case on November 23, 1983, was consistent with Whipple is a fairly close question as to which the well-presented position of appellant is persuasive. In any event, especially since a conclusion might be drawn from many other motions for rehearing filed with this court subsequent to Whipple that many lawyers have been unaware of Whipple, there is another reason for the writing of an opinion in this case: to call attention to Whipple.

The parties were divorced in 1979 while the husband was attending law school. The wife received custody of their infant son. Pursuant to a settlement agreement, the husband was to pay child support of $30.00 per week for a period of three and one half years and, after being engaged in the active practice of law for one year following graduation, the husband was to pay increased child support in an amount equal to twenty-five percent of his gross annual salary.

The husband graduated from law school in 1981 and by the time of the final hearing in January 1983 was receiving an annual salary of $22,470.24. The husband filed a complaint seeking modification of his child support obligation. The evidence presented to the trial court included testimony that the husband's expenses exceeded his income and that he was unable to make the percentage child support payments.

The trial court found that a substantial change of circumstances had occurred and, pursuant to section 61.14, Florida Statutes (1981), modified the husband's child support obligation by ordering the husband to continue making child support payments of $30.00 per week. The trial court retained jurisdiction to review the amount of child support upon motion of either party during a period of one year.

Other facts involving details of the parties' respective financial positions are unnecessary to this opinion.

The wife concedes that the record could support a finding of the inability of the husband to pay the agreed upon percentage amount of child support. We agree with the wife that the mere inability of the husband to pay is not enough to justify modification of support. Under section 61.14 "changed circumstances" sufficient to justify a modification of child support must be unanticipated, Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977), and significant. Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981).

Accordingly, the general issue here is whether the husband's present inability to pay was a significant circumstance unanticipated at the time of the settlement agreement. More specifically, the issue involves whether the record would support a finding of an income level of the husband lower than that foreseen at the time of the agreement or, probably more to the point, his expenses being higher than those anticipated.

Under the facts of this case we believe those questions were for the trial court in the exercise of its discretion. We recognize the wife's arguments, which are persuasive, that on an item by item basis no expenses of the husband were not unanticipated, i.e., that the husband's expenses and income were foreseeable. The wife's position, in essence, is that since no particular items of expense or income of the husband are shown by the record to have been unanticipated, we, in our per curiam affirmance, must necessarily have departed from the foregoing established principles of law.

However, the issue of foreseeability is generally for the finder of fact. We are unable to say that the trial court, which heard the evidence and observed the witnesses, had no basis to find that the husband's inability to pay was not foreseeable. That we might well differ with the trial court in that regard is not the point. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We recognize that this case is different from Canakaris, the facts of which concerned a trial court's discretion to initially determine matters such as alimony and child support. Here the settlement agreement was initially approved by another trial court in connection with the dissolution decree. However, the standards of Canakaris regarding the trial court's discretion were made specifically applicable to "a domestic relation proceeding," 382 So.2d at 1202, and, of course, that is what is involved here. Also, under section 61.14(1) a trial court has far greater authority to judicially change a contract which is a settlement agreement subject to court approval than to review a contract in a normal commercial setting. We feel that a dissolution settlement agreement requiring one spouse to pay a fixed percentage share of that spouse's gross income for...