The opinion
Wendell L. Griffen, Judge, dissenting. I would reverse in this case because the trial court’s order is based on an erroneous finding of fact that appellee was receiving unemployment benefits when the divorce decree was entered. The parties’ settlement agreement expressly stated that the $1000 monthly child support was based on the child’s accustomed standard of living and the fact that appellee had assets in addition to his monthly net income, which the decree stated “has recendy been approximately $4,800.”
Although it was not made known to the trial court at the time of the parties’ divorce, appellee was unemployed at that time, having lost his job approximately one month before the order was entered. Appellee anticipated receiving unemployment benefits of $1000 per month and did, in fact, qualify to receive such benefits for the period between September 2003 to mid-March 2004. However, he did not receive his first unemployment check until November 2003.
At the conclusion of the hearing on the parties’ motions, the trial court erroneously found that when the parties executed the property agreement, appellee was unemployed and was also receiving $1000 in unemployment benefits (which had since expired). The court further determined that appellee’s income had been reduced by $5000 per month but that there was no credible evidence by which it could determine how much money he currently received from his assets. Because appellee was highly educated and was capable of earning a sufficient income to pay child support, the court determined that “he can find a job in the amount of $3500 monthly” and reduced appellee’s child support to $525 monthly. The court thus found that there had been a change of circumstance to warrant modification of child support, but found no justification for deviating from the Child Support Chart.
I would reverse the trial court’s order because it was clearly based on an erroneous finding of fact: that appellee was receiving unemployment benefits at the time the divorce decree was entered. Although appellee was apparently eligible to receive unemployment benefits for the month of October 2003, when the divorce decree was entered, he did not receive any unemployment benefits until November 2003, after the order was entered. In addition, though the trial court in the instant action stated that appellee’s income had been reduced by $5000 per month, it is not apparent how the court determined that appellee lost $5000 per month.
The majority states that the change of circumstances is shown because, after the divorce decree was entered, appellee’s unemployment benefits decreased from $1000 per month to $0 per month. Had appellant been receiving unemployment benefits of $1000 per month at the time the trial judge initially awarded child support, the majority’s position might be more persuasive. However, we cannot ascertain, a priori, what decision the trial court would have reached had it proceeded from an accurate understanding of the facts surrounding appellee’s employment situation, especially given that the court was unable to determine if the amount of unearned income appellee currently receives from his assets constitutes a change of circumstances. Absent proof regarding the amount of appellee’s unearned income, it would seem that his petition to modify child support rises or falls on the other evidence regarding his financial circumstances, including the true state of his financial circumstances at the time the divorce decree was entered that were not then known to the trial court. The majority’s argument to the contrary notwithstanding, where the trial court was mistaken concerning appellee’s financial circumstances at the time the initial decree was entered, then it is not positioned to find, as fact, that a change of circumstances has occurred since then.
Additionally, upon de novo review, I am not convinced that the trial judge properly applied the Child Support Chart in reducing appellee’s child-support obligation. The trial judge orally stated that she was not deviating from the Chart, declared appel-lee’s income to be $3500 monthly, and awarded $525 per month in child support. The problem is first, that the presumptive amount of child support for one child where the payor’s monthly income is $3500 is $594, not $525; second, the amount of $525 is not a presumptive amount for one child at any income level according to the Chart. Thus, I do not see how we can affirm when we cannot tell whether the trial court properly applied the Child Support Chart.
Based on the reasons noted herein, I would reverse the trial court’s order reducing appellee’s child-support obligation and would remand for reconsideration of the evidence. I respectfully dissent.