Mast v. Reed

Decision Date14 March 1991
Docket NumberNo. 89-1146,89-1146
Citation16 Fla. L. Weekly 721,578 So.2d 304
PartiesJudy MAST, etc., Appellant, v. Michael Lee REED, Appellant. 578 So.2d 304, 16 Fla. L. Week. 721
CourtFlorida District Court of Appeals

Michael R. Walsh, Orlando, for appellant.

Patricia Butler Vitter, Inverness, for appellee.

HARRIS, Judge.

EN BANC

On June 30, 1984 Michael Reed and Judy Mast, formerly Judy Reed, were married in Inverness, Citrus County, Florida. They are the parents of Jason. The parties lived together in Citrus County until March 1986 when matrimonial difficulties arose. The mother and Jason moved to Brandon, Florida. The father exercised regular visitation with Jason until August, 1987 when the father moved to Madison, Florida to open a new business. After that, because of the press of business and limited finances, both his financial support and his visitation diminished. Prior to moving to Madison, the father entered into a property settlement agreement (February 17, 1987) granting primary residential custody of Jason to the mother. The agreement provided that neither party would remove the child from Florida "on a permanent basis" without prior order of court. The parties were divorced on May 7, 1987 and the final judgment incorporated the property settlement agreement.

The mother married James Mast on August 15, 1987 and the father remarried on March 18, 1988. Subsequent to their marriage, James Mast, for financial reasons, enlisted in the army and was stationed in North Carolina.

On September 2, 1988 the mother petitioned the court for leave to move with the child to North Carolina in order to be with her husband and her new child. During these proceedings she did move to North Carolina with the child; however, because she returned with the child to Florida every other weekend, the father never missed his regularly scheduled visitation.

The father resisted her move to North Carolina and counterpetitioned for primary residential custody alleging:

1. That the mother had removed the child from Florida on "a permanent basis";

2. That the move would interfere with the father-child relationship and would hamper the concept of shared parental responsibility; and

3. That the father was more capable of providing parental guidance. 1

The matter came on for hearing almost eight months after the mother's initial petition. The court denied the mother's petition to relocate the child. 2 The court did, however, grant the father's petition to change residential custody:

1. Because the mother removed the child from Florida "on a permanent basis";

2. Because the father "within the last year" had exercised all his visitation rights with the child and has integrated the child "into the father's family"; and

3. Because the grandparents reside within Florida and maintain continuing contact with Jason.

We recognize that the trial court has broad discretion in these most difficult cases; however, as the supreme court held in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), this discretion is not without limit.

The discretionary power that is exercised by a trial judge is not, however, without limitation, and both appellate and trial judges should recognize the concern The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.

                which arises from substantial disparities in domestic judgments resulting from basically similar factual circumstances.   The appellate courts have not been helpful in this regard.   Our decisions and those of the district courts are difficult, if not impossible, to reconcile.   The trial court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result.   The trial courts' discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.   Judges dealing with cases essentially alike should reach the same result.   Different results reached from substantially the same facts comport with neither logic nor reasonableness.   In this regard, we note the cautionary words of Justice Cardozo concerning the discretionary power of judges
                

B. Cardozo, The Nature of the Judicial Process 141 (1921).

Canakaris at 1203.

Because the record fails to justify the court's decision, we find that it abused its discretion and we reverse.

PERMANENT MOVE

There was no evidence in the record to justify the finding that the mother's relocation of Jason to North Carolina to be near her husband was "permanent." It should be noted that the property settlement agreement adopted by the court in the final judgment granting the dissolution provided that the mother could live anywhere she pleased so long as any such move outside Florida would not be on a permanent basis. If one is required by military or civilian government employment to relocate outside the state, he does not lose his permanent residence status. Eckel v. Eckel, 522 So.2d 1018 (Fla. 1st DCA 1988). It is true that such a relocation might be for a substantial period of time--but the parties, by their agreement, contemplated that moves might occur and only prohibited permanent relocations. The record does not support the finding of a permanent 3 move.

GRANDPARENT CONTACT

The record totally fails to support the finding of paternal grandparent residence or any grandparent contact with Jason. The only appearance in the record in this regard is found in the court's order granting the change in custody.

INTERFERENCE WITH FATHER-SON CONTACT

Since the court denied the mother's petition to remove Jason from Florida, the allegation appears to be moot. In any event, the father failed to establish that the move would interfere with his father-child relationship. The proof, after eight months of experience, was that the father never missed a visitation while the mother was in North Carolina. Such cannot be said, however, of the period preceding the move when the father's erratic and rare visitation was the result of his commitment to his new business.

Simply put, the father did not sustain the allegations of his petition to change custody and it should have been denied.

REVERSED with instructions to order the child returned to the mother under the provisions of the original final judgment.

PETERSON, GRIFFIN and DIAMANTIS, JJ., concur.

SHARP, W., J., concurs in part, dissents in part with opinion with which GRIFFIN, J., concurs.

COBB, J., dissents with opinion with which DAUKSCH, COWART and GOSHORN, JJ., concur.

SHARP, W., Judge, concurring in part, dissenting in part.

Originally, my opinion began as the proposed majority opinion for a three-judge panel. My goal was to bring this district's views on interstate moves for Florida parents who have primary residential custody of their children into harmony with those now expounded by our sister courts. See Lenders v. Durham, 564 So.2d 1186 (Fla. 2d DCA 1990); Sherman v. Sherman, 558 So.2d 149 (Fla. 3d DCA 1990); Zugda v. Gomez, 553 So.2d 1295 (Fla. 3d DCA 1989); Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989), rev. denied, 560 So.2d 233 (Fla.1990); DeCamp v. Hein, 541 So.2d 708 (Fla. 4th DCA), rev. denied, 551 So.2d 461 (Fla.1989); Bachman v. Bachman, 539 So.2d 1182 (Fla. 4th DCA 1989); Landa v. Landa, 539 So.2d 543 (Fla. 3d DCA 1989); Nissen v. Murphy, 528 So.2d 502 (Fla. 2d DCA 1988); Matilla v. Matilla, 474 So.2d 306 (Fla. 3d DCA 1985). To do so (in my view), however, requires the Fifth District to recede from our own case law on that issue: Cole v. Cole, 530 So.2d 467 (Fla. 5th DCA 1988); Jones v. Vrba, 513 So.2d 1080 (Fla. 5th DCA 1987); Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982). The case was thus reviewed en banc at my instigation.

I concur with the majority opinion that sufficient evidence was not adduced to support the trial judge's change of primary residential custody from the mother to the father. The trial judge's findings of fact have little or no basis for support in the record. For example, the trial judge "finds" as an important factor the presence of two sets of grandparents in Florida. However, only Mast's parents (the mother's) are mentioned in the transcript and then only in the context that Mast tried to make her parents' home in Homosassa Springs her residence after her husband was transferred to Ft. Bragg, North Carolina.

Madison, Florida, where Reed resides is about 150 miles northwest of Homosassa Springs. The transcript shows that the trial judge was piqued at Mast for making Reed drive from Madison to Homosassa Springs to pick up the child for visitation. Nothing in the transcript gives any comfort or support to the trial judge's assumption that the maternal grandparents in Homossassa Springs will have any practical opportunity to visit the child frequently in Madison. We do not know from the transcript where in Florida the paternal grandparents reside, but no one said they live in or near Madison, or that they ever had, or wished to have, significant continued contact with the child. 1 I dissent from the majority opinion, however, because it does not also reverse the trial court's denial of Mast's petition. The second shoe has yet to drop in this case and until it does, complete relief has been granted to neither party. As a result of this court's decision, Reed is denied permanent custody; but Mast cannot (as a matter of practicality) reside with Jason, her husband,...

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