Reduction of Agreed Child Support vs Alimony

Court Rejects “Heavier” Burden of Proof for Downward Modification of Agreed Child Support

In Mannella, the Sixth District Court of Appeals recently departed from Florida’s five other appellate courts by declining to hold child support obligors to a heavier burden of proof when seeking downward modification of agreed-upon child support. [1]

Downward modification of child support requires a child support obligor to prove:

1. 1) a substantial change in circumstances
2. 2) not contemplated at the time of the final judgment’s entry
3. 3) that is material, involuntary, and permanent in nature. [2]

Although the burden of proof in family law cases is normally “preponderance,” courts previously held a child support obligor to a “heavier” burden of proof for downward modification of agreed-upon child support. This “heavier” burden only applies when the child support sought to be reduced was initially established by agreement of the parties rather than by the court at a contested hearing or trial. [3]

The Sixth District Court of Appeals reviewed Florida law and found that the concept of the “heavier” burden of proof originated in alimony cases and was incorrectly imported and applied to child support cases. [4]

In 1993, the Florida legislature revised F.S. 61.14, the statute governing modifications, to clear up the matter. The revised statute eliminated any distinction between downward modification of support, regardless of whether initially established by party agreement or judicial determination. Still binding, the statute provides:

When modification of an existing order of support is sought, the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same. [5]

Unfortunately, that did not settle the matter. Confusion was perpetuated by language in Overbey, a subsequent Florida Supreme Court case that again referenced the “heavier” burden, bringing it new life. [6] The Sixth District carefully considered the language in Overbey and found it to be non-binding surplusage. As such, the Sixth District held that F.S. 61.14(7) decisively eliminated the “heavier” burden of proof that courts had been imposing for downward modification of agreed-upon child support, and so the preponderance standard continues to apply.

Court Signals “Heavier” Burden of Proof for Modification of Agreed Alimony

Ironically, in determining that pivotal language by the Florida Supreme Court in Overbey constituted non-binding surplusage, the Sixth District included its own non-binding surplusage questioning whether F.S 61.14, governing modifications, eliminated the “heavier” burden for downward modification of agreed alimony, a view widely accepted by its sister courts.

In Mannella, the Sixth District noted that a “heavier” burden of proof was historically imposed on requests for downward modification of alimony established by agreement of the parties rather than by the court at a contested hearing or trial. [7] The 1993 revision to F.S. 61.14, governing modifications, is routinely cited by Florida courts as having eliminated the “heavier” burden of proof that previously applied to downward modifications of agreed alimony. [8]

The Sixth District observed that the phrase “order of support” as used in F.S. 61.14 is defined by F.S. 61.046(22)(b) to include child support, but not alimony. If so, F.S. 61.14 has no effect on prior law governing alimony modification. That means pre-statutory case law that imposed a “heavier” burden on alimony modification would continue to apply. This would represent a vast departure from governing law in most Florida appellate districts.

Conclusion

The Sixth District departed from its sister courts on two major points in child support and alimony modification cases. First, the Sixth District rejected post-statutory language in Overbey, a Florida Supreme Court case, that appeared to resurrect a “heavier” burden for downward modification of agreed child support as meaningless surplusage. Second, the Sixth District departed from its sister courts by questioning whether F.S. 61.14, the modification statute that eliminates the “heavier” burden in child support cases, applies to alimony cases.

The burden of proof is foundational in divorce and paternity cases and can tilt the court’s ruling for or against you. It is important to consult with an attorney to ensure your case is well-grounded and substantiated.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Endnotes

[1] Mannella (2023)

[2] Poe (2011) (citing Pimm 1992)

[3] Arrington (Fla. 1st DCA 2021); Catalano (Fla. 2d DCA 2001); A.G.W. (Fla. 2d DCA 2023); Schmachtenberg (Fla. 3d DCA 2010); Knight (Fla. 4th DCA 1997); Pohlmann (Fla. 5th DCA 1997)

[4] Tietig (1992); Bernstein (1979)

[5] F.S. 61.14(7) (1993)

[6] Overbey (1997)

[7] Nixon (1967); Ohmes (1967); Fowler (1959); Scott 1973; Bernstein (1986)

[8] Knowlton (Fla. 1st DCA 2019); Dogoda (Fla. 2d DCA 2017); Garvey (Fla. 4th DCA 2014); Ellisen (Fla. 4th DCA 2014)