Opinion
No. 87-0485.
June 22, 1988. Rehearing Denied September 12, 1988.
Appeal from the Circuit Court, Martin County, L.B. Vocelle, J.
Thomas E. Warner and John T. Kennedy of Warner, Fox, Seeley Dungey, Attys., P.A., Stuart, for appellant.
J. Stockton Bryan, Stuart, pro se.
Sarah Bryan appeals an order granting Stockton Bryan's second petition to modify alimony. Mr. Bryan filed his first petition for modification seeking a reduction based upon his inability to pay the amount awarded. This petition was denied after an evidentiary hearing on the trial court's finding that he failed to show a substantial change of circumstances between the final judgment of dissolution and the filing of his petition. Mr. Bryan moved for a new trial but that request was denied. He then filed his second petition for modification which was heard before a new trial judge. After a second hearing wherein the same financial information was presented, with only slight change, Mr. Bryan's second request for modification was granted.
On appeal Mrs. Bryan argues that it was error to modify the final judgment of dissolution because Mr. Bryan did not show a substantial change in circumstances. She contends that he had to present evidence showing a substantial change in circumstances from the time his first petition for modification was denied and his second petition was filed because res judicata principles precluded him from relitigating the same facts from the original petition in the subsequent petition.
Appellee failed to show a change in circumstances measured either from the date of the initial determination or from the subsequent determination denying modification. His unsuccessful attempt to modify did not restart the clock. We reverse on a lack of evidence of material change in husband's circumstances. Small v. Small, 313 So.2d 749 (Fla. 1975); Steinau v. Steinau, 343 So.2d 631 (Fla. 4th DCA 1977).
REVERSED and REMANDED.
HERSEY, C.J., and DELL and WALDEN, JJ., concur.