IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
GARY P. VAN LOOVEN, JR.
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CASE NO. 1D12-1727
LESLIE A. VAN LOOVEN,
Opinion filed October 12, 2012.
An appeal from the Circuit Court for Baker County.
Phyllis M. Rosier, Judge.
Joseph L. Mannikko of Mannikko & Baris, Macclenny, for Appellant.
No appearance for Appellee.
Gary P. Van Looven, Jr. (“Appellant”), appeals a final order dismissing his
amended supplemental petition to modify (reduce) child support for failure to state
a claim. In the petition, Appellant claimed he was paying child support in an
amount greater than that indicated by the statutory guidelines, and asserted that
reducing his obligation would be in his children’s best interests. The trial court
determined—after twice giving Appellant a chance to amend—that the petition
failed to allege an involuntary, permanent change in circumstances. Appellant
contends on appeal that he need not make such a showing. Rather, he claims,
under Overbey v. Overbey, 698 So. 2d 811 (Fla. 1997), it is sufficient simply to
allege that the reduction is in the children’s best interests. We disagree and affirm
the dismissal of Appellant’s petition.
Under section 61.14(1)(a), Florida Statutes (2010), a party who is required to
pay child support may seek modification of the support amount if
the circumstances or the financial ability of either party
changes or the child who is a beneficiary of an agreement
or court order . . . reaches majority after the execution of
the agreement or the rendition of the order . . . .
In other words, a petition to modify child support must show either that (1) there
has been a change in circumstances or financial ability, or that (2) the beneficiary
of the support has turned 18. Section 61.14(1)(a) provides only these bases for
requesting modification, and, as to change in circumstances or financial ability,
Florida courts require that the change (1) is substantial; (2) is material, involuntary,
and permanent in nature; and (3) was not contemplated at the time of the final
judgment of dissolution. See Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992);
Maher v. Maher, ___ So. 3d ___, ___, 37 Fla. L. Weekly D1952, D1952 (Fla. 4th
DCA Aug. 15, 2012); Poe v. Poe, 63 So. 3d 842, 843 (Fla. 5th DCA 2011);
Matthews v. Matthews, 677 So. 2d 323, 325 (Fla. 1st DCA 1996).
In Overbey, the decision on which Appellant relies, the supreme court
confirmed that “a fundamental prerequisite to bringing an action to modify child
support payments is a showing of substantial change of circumstances.” Overbey,
698 So. 2d at 813 (emphasis added). Where we believe Appellant misinterprets
Overbey is in the scope of its holding.
The narrow issue before the supreme court in Overbey was whether a
parent’s voluntary reduction in income to return to school could support a
reduction in his child support obligation. After confirming the permissible grounds
in section 61.14(1)(a) for requesting modification, the court then considered
section 61.13(1)(a), Florida Statutes (1995), “which governs the power of courts to
issue orders regarding child support[.]” Id. (emphasis added). The latter statute,
the court determined, authorized courts to modify the amount of child support
initially ordered in 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.”1
Id. (emphasis in original).
Section 61.13(1)(a), Florida Statutes (1995), reads, in pertinent part:
In a proceeding for dissolution of marriage, the court
61.13(1)(a) and 61.14(1)(a) in pari materia, the supreme court concluded that “the
father’s reduction in income is voluntary and consequently insufficient to support a
finding of substantial change in circumstances,” but that under section 61.13(1)(a),
the trial court “must evaluate whether the reduction is in the best interests of the
children.” Id. at 815.
Overbey only holds that, as to modification requests based on a parent’s
voluntary reduction of income to continue education, trial courts should focus on
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.
Section 61.13(1)(a)2., Florida Statutes (2010), in effect when Appellant filed his
supplemental petition, reads similarly:
The court initially entering an order requiring one or both
parents to make child support payments has continuing
jurisdiction after the entry of the initial order to modify
the amount and terms and conditions of the child support
payments if the modification is found by the court to be
in the best interests of the child; when the child reaches
majority; if there is a substantial change in the
circumstances of the parties; if s. 743.07(2) applies; or
when a child is emancipated, marries, joins the armed
services, or dies.
whether a temporary reduction in child support is in the child’s best interests,
rather than on the voluntary nature of the income reduction. See Vriesenga v.
Vriesenga, 931 So. 2d 213, 217 n.6 (Fla. 1st DCA 2006). Overbey does not
otherwise change the requirement in statute and case law that a party seeking child
support modification must show a substantial change of circumstances that is
material, involuntary, and permanent in nature.
Whether Overbey might apply to other circumstances in which a parent
voluntarily reduces his or her income is not a question we need to consider at this
time. After two opportunities to amend his modification petition, Appellant failed
to allege any substantial change in circumstances.
The trial court therefore
properly dismissed the petition for failure to state a claim.
RAY and SWANSON, JJ., CONCUR.