Gary Lee Knowlton, Former Husband v. Marja-Leena Knowlton, Former Wife

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-5131
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GARY LEE KNOWLTON, Former
Husband,
Appellant,
v.
MARJA-LEENA KNOWLTON,
Former Wife,
Appellee.
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On appeal from the Circuit Court for Duval County.
Lance M. Day, Judge.
October 1, 2019
PER CURIAM.
Gary 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.
The 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 agreement.
But 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.
The 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.
On 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 provides:
When modification of an existing order of support is
sought, the proof required to modify a settlement
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agreement and the proof required to modify an award
established by court order shall be the same.
§ 61.14(7), Fla. Stat. (2017).
Neither 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).
Former 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
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1059, 1061 (Fla. 4th DCA 2007) (holding that when a party fails to
object to the trial court’s assignment of the burden of proof and
when the party willingly acquiesces to the court’s imposition of the
burden of proof, the party cannot argue for the first time on appeal
that the trial court improperly assigned the burden of proof).
AFFIRMED.
WOLF, ROBERTS, and ROWE, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Brian 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.
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