MONTANTE v. MONTANTE

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Docket Number

No. 92-3537.

Attorney(S)

Norman D. Zimmerman of Zimmerman, Zimmerman Miceli, P.A., Pompano Beach, for appellant. Arthur M. Wolff of the Law Office of Arthur M. Wolff, Fort Lauderdale, for appellee.

Judges

GUNTHER, Judge.

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Smart Summary

Factual and Procedural Background

The parties, Philip and Rose Marie Montante, were divorced by a final judgment on November 6, 1979, which incorporated their voluntary settlement and property agreement. This agreement required Philip to pay $400 per month in child support for their two children. On January 15, 1991, Rose petitioned for an increase in child support to $634.72 per month for their minor daughter Alethea, covering the period from January 1991 through November 9, 1992, after Alethea reached eighteen years old. Rose also requested attorney's fees, citing her inability to afford them and Philip's ability to pay. The trial court denied Rose's requests for modification of child support and attorney's fees, and ordered her to pay Philip’s deposition costs. Rose appealed these rulings.

Legal Issues Presented

Whether the trial court abused its discretion by applying a heavier burden of proof than legally required for modification of child support established by a settlement agreement.
Whether the trial court abused its discretion by denying Rose's request for attorney's fees and ordering her to pay deposition costs.
Whether the trial court erred in allowing set-offs for payments Philip made directly to the child that were not in substantial compliance with a support order.

Arguments of the Parties

Appellant's Arguments

Rose contended that the trial court improperly required her to meet a heavier burden of proof than the preponderance of the evidence standard required by law for modification of child support.
She argued that the trial court abused its discretion by denying her attorney's fees given her financial needs and Philip’s superior ability to pay.
Rose challenged the order requiring her to pay deposition costs.

Appellee's Arguments

Philip's attorney asserted that because the original child support amount was set by settlement agreement rather than court order, Rose bore a heavier burden to prove a substantial change in circumstances to justify an increase in support.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bernstein v. Bernstein, 498 So.2d 1270 (Fla. 4th DCA 1986)	Modification of child support requires proof of substantial change in circumstances by a preponderance of the evidence.	Rejected the trial court’s imposition of a heavier burden on Rose for modifying child support established by settlement.
Tietig v. Boggs, 578 So.2d 838 (Fla. 3d DCA 1991), modified 602 So.2d 1250 (Fla. 1992)	Standard for modification of child support and burden of proof.	Supported the principle that the burden does not increase when support is set by agreement.
Mandy v. Williams, 492 So.2d 759, 761 (Fla. 4th DCA 1986); § 61.16, Fla. Stat. (1991)	Attorney's fees and costs in divorce depend on relative financial circumstances.	Guided the court’s reversal of denial of attorney’s fees and imposition of deposition costs on Rose.
Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991)	Determining need for attorney’s fees based on one spouse’s need and the other’s ability to pay.	Supported the reversal of the trial court’s denial of attorney’s fees to Rose.
Goldman v. Goldman, 529 So.2d 1260 (Fla. 3d DCA 1988)	Payments directly to a child are not set-offs unless substantially compliant with support order; gifts do not qualify as support.	Instructed the trial court on remand to distinguish between gifts and necessary support payments for set-off purposes.

Court's Reasoning and Analysis

The court analyzed the trial court’s application of the burden of proof for modifying child support set by agreement. It found that the trial court erred by imposing a heavier burden than the preponderance of the evidence standard required by controlling precedent. The court emphasized that modification requires proof of a substantial change in circumstances by a preponderance of the evidence regardless of whether the original support was set by court order or settlement.

Regarding attorney's fees and deposition costs, the court applied statutory and case law principles considering the parties’ relative financial situations. Because Rose demonstrated need and Philip had superior ability to pay, the trial court abused its discretion by denying fees and ordering Rose to pay deposition costs.

The court further scrutinized the trial court’s treatment of payments Philip made directly to Alethea. It clarified that only payments made in substantial compliance with a support order may be credited as set-offs against child support obligations. Gifts such as jewelry and luxury items do not qualify, while necessary expenses like tuition and health insurance may be considered support. The court directed a detailed reevaluation of these payments on remand.

Holding and Implications

The court REVERSED the trial court's order denying modification of child support and attorney's fees, and ordering Rose to pay deposition costs. The case was REMANDED for further proceedings consistent with the opinion, including reevaluation of payments credited as set-offs.

The direct effect is that Rose’s petition for increased child support and attorney’s fees must be reconsidered under the correct legal standards. No new precedent was established; rather, the court reaffirmed existing principles regarding burden of proof, attorney's fees, and support payment set-offs.

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ROSE MARIE MONTANTE, APPELLANT, v. PHILIP J. MONTANTE, JR., APPELLEE.

GUNTHER, Judge.

Rose Marie Montante (Rose) appeals the trial court's order denying a modification of child support, denying her request for attorney's fees, and ordering her to pay Mr. Montante's deposition costs. Rose asserts that the trial court abused its discretion by holding her to a higher standard of proof than the law requires for modification. Rose also asserts that the trial court abused its discretion by denying her request for attorney's fees and by ordering her to pay the deposition costs. We agree with these assertions and reverse.

The marriage of Philip Montante (Philip) and Rose was dissolved on November 6, 1979 by a final judgment that incorporated the parties' voluntary settlement and property agreement. The agreement provided for Philip to pay a total of $400 per month in child support for two children. On January 15, 1991, Rose petitioned for an increase in child support of $634.72 per month for the parties' minor daughter, Alethea, for the 22 month period from January 1991 through November 9, 1992, after Alethea's eighteenth birthday. Rose also sought attorney's fees, alleging her inability to afford her attorney's fees and Philip's ability to pay.

At the modification hearing, Philip's attorney argued that Rose had a heavier burden to prove a substantial change in circumstances in order to merit an increase in child support. He argued that a heavier burden is required because the amount of child support was established by settlement agreement and not by the trial court. The trial court agreed and stated in its order that Rose had failed to meet her heavy burden. However, the law is clear that Rose does not have that burden. See Bernstein v. Bernstein, 498 So.2d 1270 (Fla. 4th DCA 1986); Tietig v. Boggs, 578 So.2d 838 (Fla. 3d DCA 1991), modified, 602 So.2d 1250 (Fla. 1992). In fact, Rose was required to prove a substantial change in circumstances only by a preponderance of the evidence. Bernstein, 498 So.2d at 1271. Therefore, the trial court abused its discretion by holding Rose to a heavier burden of proof than the law requires.

Because of Rose's needs and Philip's superior ability to pay, the trial court also abused its discretion in denying Rose's request for attorney's fees and in ordering her to reimburse Philip for the cost of taking her deposition. An award of attorney's fees and costs in a divorce proceeding depends upon the relative financial circumstances of the parties. Mandy v. Williams, 492 So.2d 759, 761 (Fla. 4th DCA 1986); § 61.16, Fla. Stat. (1991). The proper inquiry is whether one spouse has a need for suit money and whether the other has the ability to pay. Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991). Accordingly, the trial court's order on attorney's fees and deposition costs is reversed.

Furthermore, on remand, the trial court should reevaluate its finding that all voluntary "payments" Philip made to Alethea during the period in question could have been set off against any increase in child support. No credit should be given for payments made directly to a child unless the payments are given in substantial compliance with a support order. Goldman v. Goldman, 529 So.2d 1260 (Fla. 3d DCA 1988) (holding that spending money, air travel, and a computer are gifts that cannot qualify as set-offs). Here, Philip's gifts to Alethea did not necessarily discharge any duty of support. For example, jewelry and Gucci accessories that Philip gave Alethea are gifts and not support. On the other hand, private school tuition, prescriptions, and health insurance are necessities that may be considered as an element of support. Thus, some of these payments are not necessarily set-offs against any child support increases resulting from the modification proceeding. The trial court should evaluate each payment and set off only those payments directly related to providing necessities for Alethea.

We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HERSEY and WARNER, JJ., concur.