Bartolotta v. Bartolotta

• Decision Date: 26 February 1997
• Docket Number: No. 95-1600,95-1600
• Citation: 687 So.2d 1385
• Parties: 22 Fla. L. Weekly D532 Kelly J. BARTOLOTTA, Appellant, v. Joseph BARTOLOTTA, Appellee.
• Court: Florida District Court of Appeals

Page 1385

687 So.2d 1385

22 Fla. L. Weekly D532

Kelly J. BARTOLOTTA, Appellant, v.Joseph BARTOLOTTA, Appellee.

No. 95-1600.

District Court of Appeal of Florida Fourth District.

Feb. 26, 1997.

Kayo E. Morgan, Attorney at Law, Fort Lauderdale, for appellant.

Richard H. McDuff and H. James Montalvo of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for appellee.

GUNTHER, Chief Judge.

Appellant appeals an order modifying custody of the parties' children.We reverse.

In 1991, the trial court modified the original custody order of the parties' three children, changing custody from Appellant, Kelly Bartolotta("Mother"), to Appellee, Joseph Bartolotta("Father").On appeal, we reversed, ordering that custody remain with the Mother.In re H.B., 627 So.2d 1331(Fla. 4th DCA1993).Because the children were not returned to the Mother within the month following our decision, the Mother filed a motion to enforce our mandate.A few days later, the Father in turn renewed his petition for modification and requested retention of custody pending the trial court's decision on his renewed petition.After final hearing on the renewed petition, the trial court again granted change of custody from the Mother to the Father.It is this order that is the subject of this appeal.

On appeal, the Mother submits that she cannot afford to file transcripts in this case.Ordinarily, the absence of transcripts in factually intense cases, such as child custody cases, requires us to affirm.Applegate v. Barnett Bank, 377 So.2d 1150(Fla.1979);Sullivan v. Sullivan, 668 So.2d 329(Fla. 4th DCA1996).Here, however, because the Mother's arguments focus only upon the legal insufficiencies of the Father's renewed petition and the trial court's findings, consideration of this case on its merits is proper.Hirsch v. Hirsch, 642 So.2d 20(Fla. 5th DCA1994);Fenner v. Fenner, 599 So.2d 1343(Fla. 4th DCA), rev. denied, 613 So.2d 3(Fla.1992).Thus, we proceed on the assumption the trial court's findings are true.Casella v. Casella, 569 So.2d 848(Fla. 4th DCA1990).

While a custody order should not be disturbed absent abuse of discretion, a trial court has far less discretion in modifying a custody order than in making the original determination.E.g., Smoak v. Smoak, 658 So.2d 568(Fla. 1st DCA1995).To justify modification, the noncustodial parent carries an "extraordinary burden" to prove the occurrence of a substantial and material change in circumstances since the original custody order's entry.E.g., Kelly v. Kelly, 642 So.2d 800(Fla. 2d DCA1994), rev. denied, 651 So.2d 1194(Fla.1995).Additionally, the noncustodial parent must show that modification would promote the children's welfare.Id.

The Mother argues, inter alia, that the Father's modification petition is legally inadequate because it fails to allege the occurrence of a substantial and material change.In the absence of a properly pled modification petition, it is error to enter a modification order.Blender v. Blender, 623 So.2d 544(Fla. 4th DCA1993).Further, if the noncustodial parent fails to allege that a substantial and material change has occurred and the trial court fails to make a similar finding, the modification order should be reversed.Evans v. Evans, 490 So.2d 1035(Fla. 1st DCA1986).

Here, the Father's petition is void of any specific allegations of substantial and material changes in circumstance.While the Father alleged that the Mother abused the children and became a "less fit" parent, these allegations might be construed as intending to allege substantial or material changes only by affording the widest possible latitude.Regardless, were we to consider these allegations legally sufficient, the trial court failed to squarely address these allegations in its order.

First, no mention of abuse is made in the order, indicating that the trial court did not rely upon this allegation as a factor in modifying custody.Second, although the Father seemed to allege that the Mother became "less fit" of a parent than she was at the time of the original custody order, the trial court focused on whether the Mother was a "less fit" parent than the Father.Of course, had the trial court found that the Mother's parental fitness deteriorated to the children's detriment since originally being awarded primary custody, its order might withstand appellate scrutiny.SeeWilson v. Wilson, 504 So.2d 1278(Fla. 1st DCA1986).Instead, however, the trial court compared the Mother's parenting skills against the Father's parenting skills.This type of comparison is legally insufficient to support a modification order because it does not create a basis for a substantial change in circumstances.Stern v. Rey, 616 So.2d 145(Fla. 2d DCA1993);Bryant v. Meredith, 610 So.2d 586(Fla. 2d DCA1993).Thus, the trial court's findings regarding the Mother's fitness as a parent are irrelevant and legally insufficient to justify modification.Holmes v. Greene, 649 So.2d 302(Fla. 1st DCA1995);Grumney v. Haber, 641 So.2d 906(Fla. 2d DCA1994).

Further, the trial court's other findings are themselves insufficient as a matter of law, notwithstanding the fact that they appear to improperly exceed the scope of the Father's allegations.SeeBlender, 623 So.2d at 544.Although the trial court found otherwise, the relative stability of a parent's home environment is itself inadequate to constitute a substantial and material change.E.g., Miller v. Miller, 671 So.2d 849(Fla. 5th DCA1996);Bryant, 610 So.2d at 588.Likewise, concluding that the Mother had "poor" parenting skills sufficient to justify modification was an abuse...