Manning v. Manning

600 So. 2d 1274, 1992 WL 138088
CourtDistrict Court of Appeal of Florida
DecidedJune 23, 1992
Docket91-1937
StatusPublished
Cited by5 cases

This text of 600 So. 2d 1274 (Manning v. Manning) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manning v. Manning, 600 So. 2d 1274, 1992 WL 138088 (Fla. Ct. App. 1992).

Opinion

600 So.2d 1274 (1992)

William Alton MANNING, Husband, Appellant,
v.
Genevieve V. MANNING, n/k/a Genevieve V. Foster, Wife, Appellee.

No. 91-1937.

District Court of Appeal of Florida, First District.

June 23, 1992.

Lawrence C. Datz, Datz, Jacobson & Lembcke, Jacksonville, for appellant.

Lester Makofka, Jacksonville, for appellee.

SHIVERS, Judge.

The former husband appeals the trial court's two final orders denying his motion *1275 to modify final judgment of dissolution of marriage, and holding him in contempt for failure to pay the full amount of child support after his application for modification. The parties' marriage was dissolved by final judgment entered November 1, 1983. In 1990, the former wife, appellee here, petitioned for an increase in child support and her petition was granted by order entered November 14, 1990. At that time, the former husband was employed in a temporary capacity as an electrician at Container Corporation of America (CCA) earning about $18 per hour. He was fired on December 2, 1990. His petition for modification of child support, filed on December 21, 1990, was premised solely on his having lost the job at CCA after the November modification. Appellant's petition was denied by order rendered May 21, 1991. That order states in pertinent part: "The Court finds that while the former husband's change in financial circumstances has been substantial, material and involuntary, he has not demonstrated to the satisfaction of this Court by the greater weight of the evidence that such change is permanent in nature as he is required to do." Appellant contends that the evidence does not support the trial court's finding that his changed financial circumstances were not permanent.

As a condition of temporary employment at CCA, the husband had to pass a physical examination. He failed the exam and was fired. Although the husband had never suffered from any back problems, the X-rays revealed "a minor anomaly with partial sacralization of L5." According to CCA's doctor, the husband's "screening x-ray of his lumbo-sacral spine" was deemed abnormal. The doctor's letter states in pertinent part: "Conclusion: If PPG neg, the primary reason for not recommending him for work would be his screening x-ray of his lumbo-sacral spine. At that time would recommend that he have complete LS series performed and if this was ok, would consider changing my work recommendation." The husband testified that he attempted to have the LS series of X-rays performed by a physician in Callahan, Florida, but that the doctor's machine was not working then. The husband was unemployed then and had no health insurance. He estimated the cost of LS X-rays at about $200, an amount that he deemed unaffordable, given that he had no guarantee of employment with CCA even if his test results were "OK."

Appellant applied for unemployment compensation and presented unrefuted evidence of the Unemployment Compensation Division's record detailing his search for a job during the period December 23, 1990, to January 6, 1991. Cargill, Inc. (Cargill) eventually hired him to work 40 hours per week at $9 per hour, or about half his pay at CCA. Unlike CCA, Cargill offered the husband permanent employment and the possibility of promotions, provided health insurance, and did not require a physical examination. As to why he accepted a lower-paying job, the husband testified that a guaranteed job at Cargill was preferable to unemployment or to the higher-paying but uncertain job situation at CCA.

Appellant argues that the trial court erred in requiring proof that his change in financial earnings was permanent. In In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977), we stated that a child support reduction "may be warranted upon changed circumstances which are substantive, material, involuntary and permanent in nature." Id. at 141 (emphasis added). Although dicta in Johnson, the requirement that changed circumstances be permanent to justify a child support reduction is now settled Florida decisional law. See, e.g., Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991) (on motion for clarification); Conklin v. Conklin, 551 So.2d 1279 (Fla. 4th DCA 1989); O'Brien v. O'Brien, 407 So.2d 374 (Fla. 1st DCA 1981); Bish v. Bish, 404 So.2d 840 (Fla. 1st DCA 1981). This Court in Bish stated that a permanent change of circumstances is a "fundamental prerequisite" to modification. See 404 So.2d at 840-41.

*1276 None of the cases presented by the parties specifically delineate what time periods or particular circumstances show permanence, and the determination of what situations are permanent in nature must necessarily be based on a reasonable examination of the facts of each case. The record demonstrates that, after losing his job at CCA, appellant took steps to secure other employment offering comparable pay. However, the work search record, completed for unemployment compensation purposes and offered into evidence by appellant, covers only a two-week span, from December 23, 1990 to January 6, 1991, a relatively short time period given the husband's heavy burden to show a permanent change. See Conklin, 551 So.2d at 1279. In testimony, the husband acknowledged that, although he took the lower-paying job at Cargill because the job market was poor, Cargill offered opportunities for advancement. "Another day Cargill offered me a permanent job with health insurance and possible promotions and a possibility of in six months going somewhere." (T-32)

Appellant's acceptance of a lower-paying permanent job at Cargill, in exchange for certain benefits as well as the possibility of an improved financial situation within six months, suggests that even he believed his circumstances could improve within a relatively short time period. While the former husband argues that he had no guarantee of returning to his former wage when he petitioned for a reduction in child support, the short period of time between appellant's loss of the job at CCA and his petition for modification falls short of any showing of permanence.

As to whether a new series of back X-rays would have improved appellant's job prospects, the record shows that a satisfactory test performance would have given the physician the opportunity to re-evaluate appellant's work readiness. This is evident from the letter of W.C. Solomon, M.D., to the office of employee relations at CCA. Based solely on appellant's prior performance on the physical exam, and without the additional tests, CCA was unwilling to offer him permanent employment. Given those circumstances, appellant's failure to submit to more tests foreclosed him from being rehired by CCA.

We do not conclude that taking more tests would have automatically bettered appellant's chances of securing a higher-paying job. The mere opportunity for the physician to reconsider appellant's medical record would not have guaranteed him employment. For that reason, the trial court's order rendered on May 21, 1991, is incorrect in stating that if appellant had submitted to a complete series of back X-rays, and the results were "essentially negative," then the doctor would withdraw the "no work" recommendation and would recommend appellant for employment.

Regarding appellant's child support obligations, the parties agreed that he paid at least $500 per month after the monthly amount was increased to $800 in the modification order filed on November 19, 1990, prior to his job loss at CCA.

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Bluebook (online)
600 So. 2d 1274, 1992 WL 138088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-v-manning-fladistctapp-1992.