Opinion
No. 71-618.
December 15, 1971.
Appeal from the Circuit Court, Orange County, Parker Lee McDonald, J.
Stephen J. Johnson, Jr., of Johnson Panico, Maitland, for appellant.
No appearance for appellee.
Appellant brings for review a post judgment order which, among other things, reduced the amount of child support payments for which her former husband had been obligated under the final judgment of divorce.
The final judgment established the extent of the father's obligation for support of his minor children. In order for him to be entitled to a modification of this obligation for support, it is fundamental that he must prove a change in financial circumstances occurring subsequent to the final judgment, either in his ability to provide, or in the needs of the children. Sistrunk v. Sistrunk, Fla.App. 1970, 235 So.2d 53; Chandler v. Chandler, Fla.App. 1969, 226 So.2d 697; Simmons v. Simmons, Fla. App. 1966, 192 So.2d 325 and Cherney v. Cherney, Fla.App. 1962, 146 So.2d 914.
Appellee's petition for modification of support payments did not allege, and the evidence in support thereof did not show, any change in financial circumstances occurring subsequent to the final judgment, either in his ability to support the minor children or in the children's needs.
We reverse that portion of the order appealed which modifies appellee's obligation for child support payments as theretofore established by the final judgment. In all other respects the order is affirmed.
Affirmed in part; reversed in part.
WALDEN, J., concurs.
CROSS, J., dissents, with opinion.
I respectfully dissent as to that part of the opinion which sets forth that the evidence did not show a change in financial conditions occurring subsequent to entry of final judgment to support the order on appeal. Although the petition for modification of support payments did not allege sufficient facts, it nevertheless went unchallenged, and the change in circumstances subsequent to entry of final judgment was made and tried as an issue before the learned chancellor, and the evidence supports his order on appeal. I would affirm.