Posted by Nydia Streets of Streets Law in Florida Child Support
When a parent requests modification of child support, should the children’s actual needs be considered? If a parent defends against a modification by alleging the children’s financial needs are met and have not increased, this could be considered, but the court must also consider the basis for modification pled by the parent asking for the support amount to be changed. This was an issue in the case Harrington v. Kemp, 2D22-1257 (Fla. 2d DCA August 25, 2023).
When the parties divorced, they agreed no child support would be paid because their incomes were similar and they were exercising equal time-sharing. Approximately three years later, the former wife moved to modify the support amount, alleging her income had decreased while the former husband’s income had increased. The former husband filed a motion for summary judgment which was denied, and the case went to trial on the bifurcated issue of the children’s needs. The former wife presented evidence of the children’s needs which she estimated totaled around $200,000 per year. The former wife was not permitted by the trial court to present evidence of her ability to meet these needs. The former husband then moved for dismissal of the petition for modification based on “a lack of evidence establishing a substantial change in the needs of the children.” The trial court granted the motion to dismiss and the former wife appealed.
On appeal, the former wife argued it was improper to dismiss her petition where the basis for her request for modification was a change in the parties’ incomes and not the needs of the children. Reviewing the case under an abuse of discretion standard, the appellate court agreed with the former wife. The court held “The Florida Supreme Court has held that a substantial increase in the ability of one party to pay is itself sufficient to justify a modification of child support. Miller v. Schou, 616 So. 2d 436, 437-38 (Fla. 1993). Similarly, a decrease in the Former Wife's income is such a change that would require a recalculation of support. Thus, the present status of the petition alleges a substantial change in circumstance that, if either allegation is proven, would warrant a modification. However, the trial court declined to hear evidence on the parties' change in income and rejected the Former Wife's attempts to introduce evidence on the parties' standards of living or lifestyles during the hearing. As a result, the trial court erroneously dismissed the Former Wife's petition without hearing or addressing the basis for it.”
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