Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-729 _____________________________ REBECCA HOPE ARRINGTON, Appellant, v. WILLIAM PAUL ARRINGTON, Appellee. _____________________________ On appeal from the Circuit Court for Gilchrist County. Robert K. Groeb, Judge. April 20, 2021 NORDBY, J. Former wife Rebecca Arrington appeals the Supplemental Final Judgment Modifying Child Support and Parenting Time that granted former husband William Arrington’s supplemental petition for modification of timesharing schedule and child support. The former wife, among other things, argues the trial court erred in modifying the former husband’s child support obligation because he failed to establish that his reduced income was permanent and unanticipated. We agree the trial court erred in modifying the former husband’s child support obligation and reverse in part. In all other respects, the final judgment is affirmed. I. The parties married in 1990 and have two children together. In May 2019, the parties entered into a marital settlement agreement (MSA), which established parental responsibility, timesharing, and child support. In June 2019, the trial court issued a final judgment on dissolution of marriage, which incorporated the MSA. In part, the trial court ordered the former husband “to pay child support in the monthly amount of $1,417.07 beginning Monday, July 1, 2019, and payable each month thereafter until the youngest child graduates on Friday, June 1, 2029. The amount shall not modify when the oldest child graduates.” Less than five months after the entry of final judgment (and just six months after signing the MSA), the former husband filed a supplemental petition that sought to modify, among other things, the child support amount and timesharing schedule. The former husband alleged that a substantial, material, and unanticipated change in circumstances—a decrease in available work hours— warranted a modification of the final judgment. Following mediation, the parties entered a partial agreement about child custody. The trial court held a brief non-jury trial on the issue of child support on January 21, 2020. The former wife, pro se, called no witnesses. The former husband, through counsel, called three witnesses: Mr. James Hudson (the former husband’s manager), the former wife, and the former husband. Mr. Hudson testified that the former husband is employed as a delivery man by TriCounty Metals, in Trenton, Florida. Mr. Hudson testified that the former husband recently lost employment opportunities, including overtime opportunities, at TriCounty. Mr. Hudson attributed this to a slowdown in business coming out of Hurricane season, the contracting out of certain delivery services, and the hiring of additional employees. Ultimately, the trial court modified the final judgment. The trial court found that there was a substantial change in circumstances of the parties since the entry of the final judgment in that the former husband’s income was reduced because of the unavailability of overtime and additional work income. The trial 2 court established child support at the rate of $795.72 per month for the two children. In setting that rate, the trial court imputed a net monthly income to the former wife in the amount of $1,309.28 and found that the former husband’s net monthly income was $3,126.84 (a $173.16 decrease in net monthly income). The trial court also adjusted the MSA’s no-step-down provision and the date on which child support would terminate. Specifically, the trial court established child support at the rate of $511.86 beginning on the date the oldest child turns 18 and established January 30, 2029, the date the youngest child turns 18, as the date on which child support terminates. II. The former wife’s primary argument on appeal challenges the trial court’s conclusion that a substantial change in circumstances supported modification of the former husband’s child support obligation. Specifically, she asserts the former husband failed to establish that his reduction in income was permanent and unanticipated. We review a trial court’s decision to modify child support for an abuse of discretion. Wood v. Wood, 162 So. 3d 133, 135 (Fla. 1st DCA 2014). The party seeking modification bears the burden of establishing that the requested change is necessary. Overbey v. Overbey, 698 So. 2d 811, 813–14 (Fla. 1997). And when, as here, the original child support amount rests on an agreement by the parties, “there is a heavier burden on the party seeking a downward modification.” Maher v. Maher, 96 So. 3d 1022, 1022 (Fla. 4th DCA 2012). Under section 61.13, Florida Statutes, the court that initially entered an order requiring child support has continuing jurisdiction to modify the amount of that support when, among other things, there is “a substantial change in the circumstances of the parties.” § 61.13(1)(a)2., Fla. Stat. (2019). To prevail on a modification claim under this provision, a party must demonstrate: (1) a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, involuntary, 3 and permanent. Tisdale v. Tisdale, 264 So. 3d 1105, 1109 (Fla. 1st DCA 2019) (quoting Wood, 162 So. 3d at 135). On the record before us, there is evidence to support the conclusion that the former husband’s reduction of income is involuntary and not willful. Yet the record does not support a finding that his reduction of income is permanent. Three witnesses were called during the hearing: the former wife, the former husband, and Mr. Hudson. The testimony of each was brief, and the witnesses provided minimal information about the former husband’s income aside from a cursory explanation of why his income was reduced. Particularly, Mr. Hudson testified that, because of a seasonal slowdown in business and other employee hires, the former husband’s opportunities for overtime work had decreased. Yet nothing in Mr. Hudson’s testimony addressed the potential duration or permanency of the impact on the former husband’s work schedule. And the former husband’s testimony provided no insight on how long he could expect to experience a reduction of income. See Mendes v. Mendes, 947 So. 2d 450, 453 (Fla. 4th DCA 2006) (“A claim of fluctuating income due to market conditions may not support a complete discharge unless a permanent, not fluctuating, loss of ability to earn income at previous levels is evidenced.”). Moreover, at the time of the hearing the former husband had experienced a reduction in income for only several months. Cf. Perez v. Perez, 973 So. 2d 1227, 1232 (Fla. 4th DCA 2008) (holding that a severe reduction in income for “nearly a year, with no end in sight,” established permanency); Freeman v. Freeman, 615 So. 2d 225, 226 (Fla. 5th DCA 1993) (“A showing of a substantial change in circumstances for one year or more constitutes a change of sufficient permanency to grant relief.”). The former husband failed to meet his burden to produce sufficient, competent evidence to show that his reduction in income was permanent. Necessarily, the former husband failed to produce sufficient, competent evidence to merit a modification of his child support obligation. In the absence of any evidence addressing the expected duration of the former husband’s reduced income, we conclude the former husband failed to meet his burden to establish that his reduced income was permanent. Given this, the trial court abused 4 its discretion in concluding a substantial change had occurred sufficient to support a downward modification of the child support obligation agreed upon by the parties in their MSA. We reverse in part the final judgment to the extent that it modifies the former husband’s child support obligation and affirm in part the remaining portions of the order unrelated to the child support modification. REVERSED in part, AFFIRMED in part, and REMANDED. LEWIS and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Lorraine H. Sherman, Self Help Legal Services, P.A., La Crosse, for Appellant. Stanley Howard Griffis III, The Griffis Law Firm, LLC, Chiefland, for Appellee. 5