Overbey v. Overbey
| Decision Date | 05 June 1997 |
| Docket Number | No. 88370,88370 |
| Citation | 698 So.2d 811 |
| Parties | 22 Fla. L. Weekly S328 Daniel Lynn OVERBEY, Petitioner, v. Janet Carol Hutching OVERBEY, etc., Respondent. |
| Court | Florida Supreme Court |
Daniel L. Overbey, South Bend, IN, pro se.
Lawrence J. Nixon, Daytona Beach, for Petitioner.
Richard J. D'Amico, Daytona Beach, for Respondent.
We have for review Overbey v. Overbey, 674 So.2d 898 (Fla. 5th DCA 1996), in which the Fifth District Court of Appeal held that the voluntary decision by a non-custodial parent to attend law school, with a consequent significant loss of income, did not constitute a valid basis for a downward modification of child support. The district court certified that its decision was in conflict with Milligan v. Addison, 582 So.2d 769 (Fla. 3d DCA 1991). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
For the reasons expressed, we find that a downward modification of child support for education enhancement should be ordered only if the modification is found to be in the best interests of the child or children. Under the unrefuted facts in this record, we find that the requested modification is not in the best interests of the children. We therefore approve the result reached by the district court.
The facts of this case are as follows. Janet Overbey (the mother) and Daniel Overbey (the father) were divorced in 1990. Pursuant to the marital settlement agreement that was incorporated into the judgment of dissolution, the father was to pay child support for the parties' two minor children in the amount of $200 per week. As of 1994, the father's income as a police officer was approximately $45,000 per year and the mother's income as a practical nurse was approximately $24,000 per year. In 1995, the father was accepted to law school and applied for a reduction in child support to enable him to attend. The mother opposed the motion, contending that the father's voluntary decision to attend law school did not constitute a significant change of circumstances justifying a reduction in child support. The trial court granted the motion and reduced the child support to $233.72 per month (the amount was to be further reduced once the oldest child, who was sixteen at the time of the modification, reached majority).
In a two-to-one decision, the Fifth District Court of Appeal found that the father's decision to attend law school was a voluntary one that could not take precedence over the welfare of the two minor children, particularly since one child would reach majority before the father finished school. The court noted that law school attendance was not a logical extension of the father's career as a police officer and was not contemplated until after the dissolution.
In reaching its decision, the district court concluded that the district courts were split on this issue and certified conflict with Milligan. In Milligan, the district court summarily concluded that a payor's loss in income due to a decision to attend law school for three years should not be considered a voluntary reduction in income sufficient to impute income for child support purposes. In so holding, the district found that the reduction was justified because it would ultimately benefit the payor's child. In reaching its decision, the district court relied on Arce v. Arce, 566 So.2d 1308 (Fla. 3d DCA 1990), which discussed this issue in detail. In Arce, the court concluded as follows:
We hold that a spouse who suffers a temporary reduction in income to complete his education has not voluntarily reduced his income. A spouse who demonstrates his good faith and whose conduct is reasonably calculated to ensure the future economic well-being of the persons to whom he owes a duty of support may be temporarily excused from having attributed to him the income which he is capable of earning, but which he is currently not earning. Such an approach is particularly appropriate here where, throughout the marriage, the husband was pursuing his medical education and now, while completing that education, is making a heroic effort to meet his support obligations. While working towards his fellowship, he is working extra shifts and has met all of his child support obligations and 65% of his alimony obligations.
Our opinion should not be read to excuse a spouse from making support payments, but merely to allow a trial court the discretion to fashion a schedule of payments that will take into account the needs of the family and the current ability of the husband to pay, allowing for future actions for modification once the spouse has realized the higher earning capacity. In exercising that discretion, the trial court must determine whether the spouse has acted in good faith and whether the temporary reduction in income is part of a course of conduct reasonably designed to ensure the future economic security of the family.
566 So.2d at 1311-12 (footnotes omitted). See also Ledbetter v. Bell, 658 So.2d 1146 (Fla. 4th DCA 1995)(following Arce, reduction is voluntary if result of good faith, reasonable, and calculated to benefit all parties).
On the other hand, in State Department of Revenue v. Thomas, 659 So.2d 1305 (Fla. 1st DCA 1995), the First District held that voluntarily and unilaterally taking oneself out of the full-time work force to pursue one's education constitutes an insufficient justification to warrant a downward modification in child support. See also Wollschlager v. Veal, 601 So.2d 274 (Fla. 1st DCA 1992) ().
Several statutory provisions must be examined to adequately evaluate and resolve the issue presented by these cases. Section 61.14(1), Florida Statutes (1995), governs "[e]nforcement and modification of support, maintenance, or alimony agreements or orders." That section provides in pertinent part as follows:
[W]hen a party is required by court order to make any [support, maintenance, or alimony] payments, and the circumstances of or the financial ability of either party changes ... either party may apply ... for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the ... order.
(Emphasis added.) Section 61.13, Florida Statutes (1995), which governs the power of courts to issue orders regarding child support, additionally provides:
(1)(a) In a proceeding for dissolution of marriage, the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30. The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments when the modification is found necessary by the court in the best interests of the child, when the child reaches majority, or when there is a substantial change in the circumstances of the parties. The court initially entering a child support order shall also have continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.
(Emphasis added.)
Generally, under these provisions, a fundamental prerequisite to bringing an action to modify child support payments is a showing of substantial change of circumstances. Chastain v. Chastain, 73 So.2d 66 (Fla.1954) (); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981); Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975). However, under section 61.13(1)(a), a court that initially entered an order requiring a parent to pay child support has jurisdiction to modify the amount of that support under three circumstances: (1) when the modification is necessary for the best interests of the child; (2) when the modification is necessary because the child has reached majority; or (3) when there is a substantial change in the circumstances of the parties. Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982); Wood v. Wood, 272 So.2d 14 (Fla. 3d DCA 1973).
The burden of establishing that a reduction is necessary is on the party seeking modification. Deatherage. Moreover when, as in the instant case, the child support was based on an agreement by the parties that was subsequently incorporated into an order, a heavier burden rests on the party seeking a reduction than would otherwise be required. Tietig v. Boggs, 602 So.2d 1250 (Fla.1992).
In Lacy, the district court concluded that parties who, as in the instant case, entered into a support agreement could not seek modification under the "best interests" prong. The court first concluded that under section 61.13 a trial court does not "initially" enter an order requiring child support payments if the parties themselves execute a property settlement agreement that is subsequently incorporated into the order. The court then determined that modification of agreements is governed solely by section 61.14, which allows for a modification only if there has been a substantial change in circumstances. We disagree with this interpretation of the statutes. First, the court cited no support for the initial conclusion, and we find no basis in the statute for this holding. Second, both sections 61.13 and 61.14 on their face govern the modification of orders. Thus, we conclude that sections 61.13 and 61.14 must be read in pari materia. In sum, we find that the incorporation of a settlement agreement into a final judgment ordering support is irrelevant in determining whether a...
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