Matthews v. Matthews, 95-1906

• Decision Date: 23 April 1996
• Docket Number: No. 95-1906,95-1906
• Citation: 677 So.2d 323
• Parties: 21 Fla. L. Weekly D1010 Carolyn W. MATTHEWS, Appellant/Cross-Appellee, v. Floyd L. MATTHEWS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 323

677 So.2d 323

21 Fla. L. Weekly D1010

Carolyn W. MATTHEWS, Appellant/Cross-Appellee, v. Floyd L. MATTHEWS, Appellee/Cross-Appellant.

No. 95-1906.

District Court of Appeal of Florida,

First District.

April 23, 1996.

An appeal from the Circuit Court for Duval County. Thomas D. Oakley, Judge.

David A. Garfinkel of Datz, Jacobson, Lembcke & Garfinkel, Jacksonville, for Appellant/Cross-Appellee.

Abraham I. Bateh of the Law Offices of Bateh & Clark, Jacksonville, for Appellee/Cross-Appellant.

BENTON, Judge.

A mother and former wife appeals the denial of her post-dissolution petition for modification seeking an increase in child support. She also contends the trial court abused its discretion in failing to award her attorney's fees. We reverse and remand for further proceedings. Her former husband cross appeals denial of his motion for modification of the final judgment seeking reduction of permanent alimony. On cross-appeal, we affirm without discussion.

The circuit court has "the authority to modify child support ... so long as the modification is requested and supported by ... evidence," Norwood v. Norwood, 466 So.2d 5, 6 (Fla. 5th DCA 1985), justifying modification. E.g., Guadine v. Guadine, 474 So.2d 1245 (Fla. 4th DCA 1985); § 61.14(1), Fla.Stat. (Supp.1994). Even when a court of another jurisdiction has originally ordered child support, Florida courts have the

authority to order support commensurate with the current needs of the obligees and the current ability of the obligor, without being bound by previous support orders.

Koon v. Boulder County, Dep't of Social Servs., 494 So.2d 1126, 1129 (Fla.1986). Concurring in Koon, then Chief Justice McDonald "emphasize[d] that no modification of an order of support ... can be entered without ... proof of a substantial change in circumstances warranting it." Id. But see State, Dep't of Health and Rehabilitative Servs. v. Davis, 616 So.2d 1207 (Fla. 2d DCA 1993), review dismissed, 624 So.2d 265 (Fla.1993).

"A party seeking a change in the amount of child support has the burden of proving a substantial change in circumstance, which change is significant, material, involuntary [for a party seeking to make lower payments] and permanent in nature." Bernstein v. Bernstein, 498 So.2d 1270, 1273 (Fla. 4th DCA 1986).

Here the trial court concluded that "the heavy burden which is imposed upon the parties to show substantial changes in circumstances has not been met." If, as the mother contends, this was a ruling that her burden to show changed circumstances is more onerous because the child support order she seeks to modify incorporated an agreement between the parties, the ruling was in error. A party seeking a change in child support bears the burden of proof, but need not--at least when seeking an increase--prove a "more substantial" change in circumstances simply because the existing decree setting child support incorporated an agreement of the parties. Tietig v. Boggs, 602 So.2d 1250, 1251 (Fla.1992) ("party seeking an increase in child support need only prove a substantial change ... similar to that required ... [where] judgments ... do not incorporate a settlement agreement"); Hyatt v. Hyatt, 672 So.2d 74 (Fla. 1st DCA 1996); Montante v. Montante, 627 So.2d 554 (Fla. 4th DCA 1993); § 61.14(7), Fla. Stat. (Supp.1994).

"The law is clear that the parents may not contract away the rights of their child for support." Armour v. Allen, 377 So.2d 798, 799-800 (Fla. 1st DCA 1979) ("Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State." Id. at 800). There is no "justification for imposing a heavier burden where the [original child support] provision is established by agreement than where it is imposed by the court," Bernstein, 498 So.2d at 1273; Essex v. Ayres, 503 So.2d 1365 (Fla. 3d DCA 1987), if the obligor does not seek a reduction. ¹ Nobody seeks a reduction here.

The cases teach that a substantial increase "in the paying parent's income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need." Miller v. Schou, 616 So.2d 436, 437 (Fla.1993); Hosseini v. Hosseini, 564 So.2d 548, 550 (Fla. 1st DCA 1990). Here the evidence suggests the father's income has increased significantly since 1987 when the amount of child support was set. Just as a "paying parent's income" may change, the income of a custodial parent who receives child support payments may change, Alfrey v. Alfrey, 553 So.2d 393 (Fla. 4th DCA 1989); Clark v. Render, 530 So.2d 437 (Fla. 3d DCA 1988); Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983), and a child's need for monetary support may also change. See Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA), review dismissed, 531 So.2d 169 (Fla.1988). The parties alleged changes of all three kinds in the present case, but the trial court made no findings as to any of these allegations.

In order to show a change in circumstances sufficiently substantial to justify an order modifying the child support award, the mother relies on the amendment to section 61.30(1)(b), Florida Statutes, Ch. 92-138, § 11, at 1177, Laws of Fla., which changed the statute to read:

The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted.

§ 61.30(1)(b), Fla.Stat. (Supp.1994). The trial court made no "specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate," § 61.30(1)(a), Fla.Stat. (Supp.1994), see Jones v. Jones, 636 So.2d 867 (Fla. 4th DCA 1994), or why variance from the guidelines did not demonstrate a substantial change in circumstances. See Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996); Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994).

The father invokes the qualifying threshold requirement set out in the (later added, Ch. 93-208, § 5, at 2069, Laws of Fla.) sentence immediately following the sentence in section 61.30(1)(b), Florida Statutes (Supp.1994), on which the mother relies:

However, the difference between the existing order and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.

§ 61.30(1)(b), Fla.Stat. (Supp.1994). The father points to private school tuition he pays for one of the parties' children:

Taking the factors set forth above into account in determining the guideline child support obligation reveals that the husband is already paying close to the guideline amounts. The husband's gross monthly income is $11,573.33. He pays Federal taxes of $2,586.42 per month and FICA of $944.50. He also pays health insurance premiums of $122.00 per month. This results in a net monthly income of $7,920.41.

The wife, on the other hand, has a gross monthly income of $3,410.58. However, based upon her tax history, the wife's Federal income tax obligation is $289.90 per month. Additionally, she has an FICA obligation of $230.00 per month. This results in a net monthly income of $2,890.68. Accordingly, the joint income of the two parents is $10,811.09. The husband earns 73% of this amount.

The basic guideline child support amount based upon these income figures is $2,288.83 per month. The wife contributes $167.00 for health insurance for the minor children. Seventy-five percent (75%)[sic] ²] of the amount paid for health insurance must be added to the basic guideline amount. See 61.30(7) [sic], Florida Statutes. Accordingly, the total monthly obligation for child support is $2,414.08. The husband's share of this support, based upon his earning 73% of the total combined income of the two parties, is $1,762.23. Giving the husband credit or a set-off for the $340.00 per month he pays for the youngest child's private schooling, the husband's guideline payment should be $1,422.28. Pursuant to the original Agreement and Order, he is paying $1,400.00. There is a net difference between these two figures of less than 5%.

(Emphasis altered.) At all pertinent times, both parents have been in agreement that their youngest child should attend private school. Cf. Jelke v. Jelke, 233 So.2d 408, 410 (Fla. 3d DCA), cert. denied, 238 So.2d 107 (Fla.1970). Based on their stipulation, the trial court has ordered the father to pay the tuition. ³

That the child attends private school has not diminished the child's need for food, clothing, shelter, or the other components of "the minimum child support need." § 61.30(6), Fla.Stat. (Supp.1994). By ordering the father to pay tuition, the court in effect adjusted the minimum child support award upward based on "[e]xtraordinary ... educational ... expenses." § 61.30(11)(a), Fla.Stat. (Supp.1994). Cf. Aust v. Aust, 644 So.2d 536, 537 (Fla. 5th DCA 1994) (on remand trial court could "consider any special needs of the children (such as private school tuition), which cannot be met by an award five percent above the minimum amount set in the guidelines"). We conclude that "the amount provided for under the guidelines," § 61.30(1)(b), Fla.Stat. (Supp.1994), includes such adjudicated adjustments as well as all adjustments mandated by statute.

Although we reject the father's proposed treatment of private school tuition, we are unable, assuming the validity of the numbers in the father's brief, to conclude that the guidelines are an appropriate basis on which to find a change in circumstances which would, under section 61.30(1)(b), Florida Statutes (Supp.1994), justify a modification in the amount of child support. ⁴ But if, as the mother's guidelines calculation states, she has qualifying monthly child care expenses ⁵ of $160, the statute requires the conclusion that there has been a sufficiently substantial...