final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Lance M. Day,
P. North, Fort Walton Beach, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and
A. Russell Smith of The Law Offices of A. Russell Smith,
P.A., Jacksonville, for Appellee.
Lee Knowlton, Former Husband, appeals the denial of his
petition to reduce or terminate his alimony and child support
obligations. He raises multiple issues on appeal. We affirm
all issues and write only to address his argument regarding
the burden of proof required to show that a support
obligation established by a marital settlement agreement
should be modified.
parties were married for over twenty years and had one child.
Former Wife, Marja-Leena Knowlton, filed for divorce. The
parties entered a marital settlement agreement, with the
Former Husband agreeing to pay $3, 000 per month in alimony
and $1, 028 per month in child support. A final judgment was
entered adopting the terms of the marital settlement
later, Former Husband moved to modify the final judgment in
order to reduce or terminate his support obligations. He
asserted that he was 63 years old and had been unemployed for
several years. He claimed that his personal assets were
depleted and he had accumulated debt to satisfy his support
obligations. He argued that Former Wife's financial
circumstances had improved substantially. He argued that the
changes in the parties' financial circumstances were not
contemplated at the time of dissolution and that the changes
were sufficient, material, involuntary, and permanent.
court denied the petition, finding that Former Husband failed
to meet his heavy burden to show that the obligations he
agreed to in the marital settlement agreement should be
modified. Former Husband moved for rehearing, and the motion
was denied. This timely appeal follows.
appeal, Former Husband argues for the first time that the
trial court assigned an incorrect burden of proof for him to
show that his support obligations should be modified. Because
the support obligations were established by a marital
settlement agreement, the trial court assigned a heavier
burden of proof than it would have done had the support
obligations been established by court order. Former Husband
acknowledges decisions from this Court approving the
assignment of the heavier burden of proof when a party seeks
to modify a support obligation established by a marital
settlement agreement. See, e.g., Tisdale v. Tisdale,
264 So.3d 1105, 1109 (Fla. 1st DCA 2019); Robinson v.
Robinson, 219 So.3d 933, 934 (Fla. 1st DCA 2017);
Wood v. Wood, 162 So.3d 133, 135 (Fla. 1st DCA
2014); Bish v. Bish, 404 So.2d 840, 840 (Fla. 1st
DCA 1981). But Former Husband urges the Court to recede from
those decisions, pointing to the plain language of section
61.14(7), Florida Statutes (2017). Before 1993, section
61.14, Florida Statutes, was silent on the burden of proof.
But in 1993, the Legislature amended the statute, and it now
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.
§ 61.14(7), Fla. Stat. (2017).
this Court nor the Florida Supreme Court has examined the
effect of the 1993 amendment to the statute. But the Second,
Fourth, and Fifth District Courts of Appeal have recognized
the change in the law and have receded from their precedents
that approve the imposition of a heavier burden of proof on a
party seeking to modify a support obligation established by a
marital settlement agreement. See Inman v. Inman,
260 So.3d 555, 557 n.2 (Fla. 2d DCA 2018) (observing that it
had issued decisions approving the heavier burden of proof
after the 1993 enactment of section 61.14(7), but recognizing
that it was bound to follow the language of 61.14(7));
Ellisen v. Ellisen, 150 So.3d 1270, 1271 n.2 (Fla.
5th DCA 2014) (recognizing that the Legislature rejected the
imposition of a heavier burden of proof by enacting section
61.14(7) in 1993); Garvey v. Garvey, 138 So.3d 1115,
1120 (Fla. 4th DCA 2014) (acknowledging that the statute was
amended in 1993 to provide that the proof required in
modification proceedings involving alimony set by agreement
versus alimony set by the court is the same).
Husband makes a compelling argument for this Court to follow
the Second, Fourth and Fifth Districts and revisit our
precedents. Even so, we must leave for another day the
question of what burden of proof a party must bear when
seeking to modify support obligations established by a
marital settlement agreement. This is because Former Husband
never argued in the lower court that he should not bear a
heavier burden of proof. Instead, he acquiesced to the
application of a heavier burden of proof, asserting in his
motion for rehearing, "The heavier burden of proof that
applies to the modification of support agreements requires
the moving party to prove the changes were not contemplated
by the parties when they executed the agreement, as shown not
only be the terms of the agreement but also by the
surrounding circumstances." Because he never raised the
issue before the trial court and agreed he bore the heavier
burden of proof, Former Husband did not preserve the issue
for appellate review. Credit Counseling Found., Inc. v.
Hylkema, 958 So.2d 1059, 1061 (Fla. 4th DCA 2007)
(holding that when a party ...