Whight v. Whight

Decision Date13 April 1994
Docket NumberNo. 93-3420,93-3420
Citation635 So.2d 135
Parties19 Fla. L. Weekly D832 Wendy Marie WHIGHT, a/k/a Wendy Marie Childress, Appellants, v. Tymme Douglas WHIGHT, Appellee.
CourtFlorida District Court of Appeals

Louis K. Rosenbloum & David H. Levin, of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellants.

Gary L. Porch, Pensacola, for appellee.

MICKLE, Judge.

The former Wife appeals from an Order Modifying Final Judgment Dissolving Marriage that denied her 1992 counter-petition 1) alleging a substantial change in circumstances and 2) requesting an increase in child support. Appellant contends that the trial court erred in finding no evidence of the children's increased need or of a substantial change in circumstances, and in refusing to apply the remedial child support guideline statute, section 61.30, Florida Statutes (1993), to the pending proceedings. We affirm the decision of the trial court ordering a modification of visitation. However, finding that the trial court erred as a matter of law in refusing to permit Appellant to use the 1993 guidelines to prove a substantial change in circumstances, we must reverse that portion of the order denying an increase in child support and remand for further proceedings consistent herewith. Sec. 61.30, Fla.Stat. (1993); Reed v. Reed, 597 So.2d 936 (Fla. 1st DCA 1992) (applying guideline statute amendments to proceedings that were "pending" on effective date of statutory change).

The parties' marriage was terminated pursuant to an April 1987 final judgment of dissolution. In March 1992, Appellee, the former Husband, petitioned to modify the divorce decree as to his rights of visitation with the children. The former Wife filed an answer and counter-petitioned for modification based on these allegations: "[T]here has been a substantial change in circumstances since the entry of the aforesaid Final Judgment, and the children are in need of additional support." In her May 26, 1993, case management conference memorandum, the former Wife specifically listed "[c]hild support according to guidelines" as a disputed issue. Additionally, she filed a support guideline worksheet one day after the first hearing and six weeks prior to the final hearing. We conclude that, prior to the final consideration as to her counter-petition, the former Wife pled sufficient facts to invoke the child support guideline statute and adequately apprised Appellee and the trial court of her intent to rely on section 61.30 as a basis for modification. Barnett Bank of Jacksonville, N.A. v. Jacksonville Nat'l Bank, 457 So.2d 535, 539-40 (Fla. 1st DCA 1984); Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981). Assuming arguendo that Appellant had not pled the guidelines sufficiently, we still would conclude, after reviewing the hearing transcript record, that the issue of the applicability of the guideline statute was fully tried by implied consent. Fla.R.Civ.P. 1.190(b); Hemraj v. Hemraj, 620 So.2d 1300 (Fla. 4th DCA 1993); Owca v. Zemzicki, 137 So.2d 876, 878 (Fla. 2d DCA 1962).

Ordinarily, a child support determination lies within the trial court's sound discretion, "subject to the statutory guidelines and the reasonableness test." Armstrong v. Armstrong, 623 So.2d 1216 (Fla. 4th DCA 1993); Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989). Under statutory subsection (1)(a), the guidelines are applicable to the "proceeding[s] for modification" on former Wife's 1992 counter-petition, even though the original child support decree was entered prior to the July 1, 1987, effective date of the initial child support guideline statute. Pitts v. Pitts, 626 So.2d 278 (Fla. 1st DCA 1993); Martinez v. Garcia, 575 So.2d 1365 (Fla. 3d DCA 1991). The instant appeal, however, involves not a question relating to abuse of discretion, but rather a purely legal question as to whether the trial judge applied the correct legal rule in reaching a decision on Appellant's counter-petition. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

The statute originally provided that "the guidelines shall not be used to provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted." Sec. 61.30(1), Fla.Stat. (1987). Applying the reasoning implicit in that statutory language, the former Husband contends that Appellant failed to meet her evidentiary burden to show entitlement to any modification of child support, so that denial of her counter-petition was proper. That is not the end of the analysis, however.

As amended, effective July 1, 1992, the statute 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." Sec. 61.30(1)(b), Fla.Stat. (Supp.1992). A parallel provision in section 61.14(1), Florida Statutes (Supp.1992) (enforcement and modification of support), states that "the child support guidelines in s. 61.30 may constitute changed circumstances." A subsequent amendment, effective July 1, 1993, added the following qualifying language relating to proof of a substantial change: "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."

Under the terms of the dissolution judgment, the former Husband was required to pay $350.00 a month in child support. At the modification hearing, the trial judge effectively acknowledged that, based on the guideline worksheets submitted by each party and the presumptive amount due under the amended statute, the difference between the initial support award and the current presumptive amount was greater than the statutory threshold amounts ($50.00 or 15 percent) beyond which the trial court "may find that the guidelines provided a substantial change in circumstances." Even so, Appellant's counter-petition was denied, in part because the former Wife was not permitted by the trial court to use the 1993 guideline amounts to provide a basis for showing a substantial change. That ruling is erroneous as a matter of law.

At the August 25, 1993, final hearing on the former Wife's counter-petition, the trial judge stated on the record: "I don't think that it's proper to apply that [1993] statue [sic] retroactively when it wasn't pled, when it couldn't have been pled because [Appellant's trial counsel] didn't know about it at that time." The former Wife asserts that it was error not to apply the remedial measures in the 1993 guidelines statute to the instant trial proceedings, which were "pending" on the effective date of the amended law. We agree, for the reasons stated in Reed, 597 So.2d at 936, 937-38.

Absent an explicit legislative expression to the contrary, a substantive law is to be construed as having prospective effect only. Young v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985) (characterizing "substantive laws" as "statutes that interfere with vested rights"). However, in that neither the pertinent 1992 nor 1993 amendments to section 61.30 created or removed vested rights as to modification or dissolution judgments, but merely conferred or...

To continue reading

Request your trial
10 cases
  • Kelley v. Kelley, 93-2627
    • United States
    • Florida District Court of Appeals
    • June 16, 1995
    ...to the case because the proceeding was pending when the 1993 version became effective. See Ch. 93-208, Laws of Fla.; Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994) (holding Sec. 61.30, Fla.Stat. (1993), remedial child support guidelines statute which amended basis for modification of c......
  • Matthews v. Matthews, 95-1906
    • United States
    • Florida District Court of Appeals
    • April 23, 1996
    ...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......
  • Newberry v. Newberry, 5D02-362.
    • United States
    • Florida District Court of Appeals
    • November 15, 2002
    ...by implied consent pursuant to Rule 1.190(b) when the other party has been sufficiently apprised of the issue. See Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994)(wife specifically listed child support as disputed issue in case management conference and filed support guideline worksheet......
  • SG v. CSG, 96-4144.
    • United States
    • Florida District Court of Appeals
    • January 21, 1999
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT