Gimeno v. Rivera

Third District Court of Appeal
State of Florida
Opinion filed December 17, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-774
Lower Tribunal No. 06-10840
________________
Gracia P. Gimeno,
Appellant/Cross-Appellee,
vs.
Naltan Rivera,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Langbein & Langbein and Evan J. Langbein, for appellant/cross-appellee.
Cozen O'Connor and Anaysa Gallardo Stutzman, for appellee/cross-
appellant.
Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
SHEPHERD, C.J.
This is an appeal by Gracia Gimeno from a downward modification of
Naltan Rivera’s child support obligation in a post-paternity modification
proceeding, based upon the fact that Rivera has fathered three more children by
another woman after having fathered a child with Gimeno. It is settled law that a
party moving for a downward modification of child support has the burden of
proving (1) a substantial change of circumstances, (2) not contemplated at the time
of the final judgment of dissolution or, as in this case, an order determining
paternity, (3) that is sufficient, material, involuntary, and permanent in nature.
Overbey v. Overbey, 698 So. 2d 811, 814 (Fla. 1997); Burkley v. Burkley, 911 So.
2d 262, 268 (Fla. 5th DCA 2005); Laliberte v. Laliberte, 698 So. 2d 1291, 1293
(Fla. 5th DCA 1997). Begetting a child is not an involuntary act. Absent some
special circumstance, the presence of subsequent children will not justify a
deviation from child support guidelines. See § 61.12(b), Fla. Stat. (2013); State,
Dep’t of Revenue v. Feeney, 689 So. 2d 350, 351- 352. (Fla. 2d DCA 1997);
Robinson v. Robinson, 657 So. 2d 958, 960 (Fla. 1st DCA 1995).1
For the foregoing reason, we reverse the order of the trial court and remand
this case for further proceedings consistent with this opinion.
1 Upward modifications of child support are treated differently. See § 61.12(b),
Fla. Stat. (2013); Pohlmann v. Pohlmann, 703 So. 2d 1121, 1124 (Fla. 5th DCA
1997).
2