Schneider v. Schneider, 4D02-3629.
| Decision Date | 14 January 2004 |
| Docket Number | No. 4D02-3629.,4D02-3629. |
| Citation | 864 So.2d 1193 |
| Parties | Andrew SCHNEIDER, Appellant, v. Ivy SCHNEIDER, Appellee. |
| Court | Florida District Court of Appeals |
Cynthia L. Greene of Law Offices of Greene, Smith & Associates, Miami, and Law Offices of Fischler & Friedman, P.A., Fort Lauderdale, for appellant.
H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
We affirm the final judgment of dissolution of marriage and write to address two issues.
The final judgment awarded shared parental responsibility of the parties' three children. The former husband challenges a portion of the final judgment which provided:
The former husband contends that giving the parties shared parental responsibility, but then making the former wife the final decision-maker over the children's health, education, and travel, is "precisely the type of `covert' sole parental responsibility award" that this court previously struck down in Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA 1993).
The final judgment at issue in Kuharcik stated that the "[p]arents are to consult each other on long range and major decisions, and if no agreement can be reached, the primary residential parent will decide." Id. at 225. We reversed the final judgment "[b]ecause the trial court failed to follow the intent of section 61.13 and failed to delineate [the] specific aspects of the child's welfare [over which the] wife should have ultimate responsibility." (Emphasis in original). We directed the trial court to determine "which specific aspects of the child's welfare [the wife] should have ultimate responsibility over." Id. (emphasis in original).
The holding of Kuharcik was only that giving the primary residential parent unlimited say over all matters regarding the children was not compatible with shared parental responsibility. The case did not forbid the delineation of areas where one parent would have final decision-making authority, in situations where the parties were unable to come to an agreement.
Indeed, section 61.13(2)(b)2.a., Florida Statutes (2002), allows a trial court to give one parent the ultimate authority over specific matters when ordering shared parental responsibility:
In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.
The evidence in this case supported the trial court's decision to give the former wife the final say on the children's health, education, and travel.
The former husband had screamed at one of his son's teachers, leaving her in tears, because the teacher had suggested that the boy might need a math tutor. On another occasion, the parties took their daughter to see an occupational psychologist. When the doctor commented about the daughter's poor behavior in the waiting room, the former husband remarked that he would not entertain any further opinions from the doctor. These incidents supported the former wife's testimony that her husband would not accept feedback on his children that suggested any need for improvement.
The former husband argues that if "the Final Judgment is construed as giving the Wife sole parental responsibility as to specific aspects of child-rearing, then such an award is necessarily erroneous because the Wife never sought such an award in her pleadings." He relies upon McKeever v. McKeever, 792 So.2d 1234 (Fla. 4th DCA 2001). In that case, this court held the father, having only asked for shared parental responsibility, was improperly given sole parental authority over the education of the child.
Here, the final judgment cannot be interpreted as giving the former wife sole parental authority. The trial court has implemented a rational decision-making plan in the event the parties are unable to agree about three aspects of the children's lives. Section 61.13(2)(b)2.a. contemplates the decision-making mechanism imposed in this case, because many aspects of children's lives will not wait for their parents' agreement or the mediating decision of a judge.
Given the hostility between the parties throughout this litigation, the trial court imposed a sensible plan. If the former husband disagrees with a decision, he may seek review by the court. Should the former wife unreasonably take issue with the former husband for the sake of flexing her power, the former husband would be able to seek a modification of the final judgment on this account.
On another issue, the former husband argues that the trial court erroneously treated his creation of an irrevocable trust, of which the parties' three children are the beneficiaries, as one of his assets for the purpose of equitable distribution. We find no error for two reasons. First, the money to fund the trust came from the sale of the husband's medical practice, which he built up during the marriage. Second, the wife was unaware that the husband had created...
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