458 So.2d 81 (Fla.App. 5 Dist. 1984), 83-1134, Holland v. Holland

Docket Nº:83-1134.
Citation:458 So.2d 81
Opinion Judge:Author: Stroker
Party Name:In re the Marriage of David HOLLAND, Appellant, v. Debra Ann HOLLAND, Appellee.
Attorney:Tim Keyser, Interlachen, for Appellant.
Case Date:November 01, 1984
Court:Florida Court of Appeals, Fifth District

Page 81

458 So.2d 81 (Fla.App. 5 Dist. 1984)

In re the Marriage of David HOLLAND, Appellant,

v.

Debra Ann HOLLAND, Appellee.

No. 83-1134.

Florida Court of Appeals, Fifth District.

November 1, 1984

Tim Keyser, Interlachen, for appellant.

No appearance for appellee.

STROKER, R.J., Associate Judge.

This is an appeal from a Final Judgment of Dissolution of Marriage which, in pertinent part, awarded the care, custody and control of the parties' minor children to the mother. Prior to the final hearing the parties filed "Supplemental Marital Settlement Stipulations" which provided for full retention by both parents of their parental rights and responsibilities. At the hearing, counsel for the appellee/wife stated to the Court that she is "unaware of any reason that shared parental responsibility would be detrimental to the children in this case."

Page 82

After hearing argument from counsel, the Trial Court declined to enter a shared parental responsibility order and awarded care, custody and control of the minor children to the wife. This decision was not based on a finding that shared parental responsibility would be detrimental to the children but on the general proposition that one of the parents must be possessed of the ultimate decision making authority on matters concerning the children. In all other respects the Final Judgment of Dissolution incorporated the stipulations of the parties concerning shared parental responsibility and frequent and continuing contact by the father.

As this Court recently noted in Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984), the trial court does have the authority to decline to follow a settlement agreement between the parties relating to child custody, visitation and support. Sections 61.13(2)(b)2.a., Florida Statutes (Supp.1982) expressly provides that the court may grant to one party the ultimate responsibility over specific aspects of the child's welfare including primary residence, education, medical care and others. It is clear, however, that the law contemplates such decisions being made on a case-by-case basis after an evidentiary finding concerning the best interest of the child. No such finding was made in this case. The trial court said: "I will not enter a shared parental responsibility order ..." and explained its refusal to enter an order of shared parental responsibility by stating, in part:

... the Legislature has no power under the Constitution of the State of Florida to mandate my use of my judicial discretion .... I find that the right to make the ultimate decision concerning the care of the child, medical consents, school consents, in the event that the parties are unable to reach an agreement, must ultimately rest with one person; and for that reason I do not enter an order of the type you seek to enter. ... what I will do, I will enter an order awarding the primary custody to one parent. I will then enter all of the remaining paragraphs ... and in every respect except that of having the ultimate responsibility rest with one person, it would read identically with the shared parental responsibility provisions of the Legislative act.

Section 61.13(2)(b)2, Florida Statutes (Supp.1982) states:

The Court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the Court determines that shared parental responsibility would be detrimental to the child, the Court may order sole parental responsibility. (Emphasis Added).

The decision of the lower Court is reversed and the cause remanded to permit the trial court to make a finding on the question of whether or not shared parental responsibility would be detrimental to the children in this case.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

The problem in this case is solely one of words, context, semantics, and philosophy, not judicial error.

Many persons apparently believe that under section 61.13, Florida Statutes, "shared...

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