Elebash v. Elebash, 83-91

• Decision Date: 14 June 1984
• Docket Number: No. 83-91,83-91
• Citation: 450 So.2d 1268
• Parties: Albert P. ELEBASH, Jr., Appellant, v. Judy H. ELEBASH, Appellee.
• Court: Florida District Court of Appeals

Page 1268

450 So.2d 1268

Albert P. ELEBASH, Jr., Appellant, v. Judy H. ELEBASH, Appellee.

No. 83-91.

District Court of Appeal of Florida Fifth District.

June 14, 1984.

Donald J. Sasser of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellant.

Walter T. Rose, Jr., of Rose & Weller, Cocoa Beach, for appellee.

PER CURIAM.

This case involves "shared parental responsibility" under section 61.13, Florida Statutes (1983).

As it had the authority to do, the trial court declined to follow a marital settlement agreement between the parties relating to child custody, visitation and support. The agreement provided for joint custody with the children's actual physical residence to alternate or rotate or shift between the parties every other weekday and every other weekend. The final judgment dissolving the marriage awarded the care, custody, and control of the minor children to the mother and then contained the following three paragraphs:

Custody as herein adjudicated shall be construed to mean ultimate responsibility over specific aspects of the children's welfare as follows: primary physical residence, which shall be with the custodial parent; education; medical, dental and other remedial care, both emergency and elective; discipline and rules of conduct; religious training; clothing and manner of dress; social and recreational planning and participation. The Court finds said assignment of responsibilities to be necessary in this particular family and in the best interests of the children.

Other than as set forth herein the parties shall continue to share the rights and responsibilities of child rearing, the Court finding that such shared parental responsibility is in accordance with the best interest of the children.

Both Petitioner and Respondent as parents of the children herein named, owe a duty of financial support, to contribute toward the physical necessities and needs of the minor children, which is shared parental responsibility, any language contained in Chapter 409, Florida Statutes, to the contrary notwithstanding.

The father appeals and argues that placing the ultimate responsibility on the wife as to the most important aspects of child rearing violated section 61.13, Florida Statutes (1983). We cannot agree. Section 61.13(2)(b)2.a. expressly provides that in ordering shared parental responsibility the court may grant one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interests of the child. The shared parental responsibility statute states some new philosophy, codifies and clarifies some existing legal concepts as to the responsibilities of both parents to their children but does not abrogate or overrule prior case law relating to judicial discretion and the various aspects of the specific needs of children and the many alternative methods of making legal provision for their needs. Even under the statutory provision for shared parental responsibility the controlling and guiding rule is still the best interests and welfare of the child and the trial court still exercises a judicial discretion in determining what is best and how it can best be achieved in the particular case based on the evidence presented.

Neither do we find that the trial court abused its discretion. Despite the close proximity of the two residences in question and the fact that the children had been rotating their residences, sometimes on a...