Bryan v. Wheels, No. 1D19-2670

• Decision Date: 01 May 2020
• Docket Number: No. 1D19-2670
• Citation: 295 So.3d 889
• Parties: Calvin BRYAN, Appellant, v. Lindsey WHEELS, Appellee.
• Court: Florida District Court of Appeals

295 So.3d 889

Calvin BRYAN, Appellant,

v.Lindsey WHEELS, Appellee.

No. 1D19-2670

District Court of Appeal of Florida, First District.

May 1, 2020

Beth M. Gordon of The Gordon Law Firm, Williston, for Appellant.

Lindsey Wheels, pro se, Appellee.

Osterhaus, J. Calvin Bryan appeals a supplemental final judgment modifying the parties’ timesharing. He argues that the court erred in granting the mother's modification petition. We agree and reverse because competent, substantial evidence fails to support the judgment.

I.

Calvin Bryan and Lindsey Wheels divorced in Florida in 2012. They had two children. Their final judgment of dissolution of marriage incorporated an agreed long-distance parenting plan recognizing that the mother lived in Texas and the father in Florida with the minor children. Their timesharing arrangement remained unstructured, providing that the mother would spend time with the children at times and places agreed upon with the father.

The parties modified their timesharing plan twice over the next five years. In 2014, they agreed to a one-week-on, one-week-off schedule when the mother moved back to Florida. And then, the parties adopted a more long-distance-friendly plan when the mother relocated to New Jersey in 2017. The 2017 plan provided that the father would have primary custody and the mother would have the children every year from July 1st through August 1st and every other spring break.

The next year, in 2018, the mother decided to move back to Florida again. This time, the father wouldn't agree to modify the timesharing arrangement, so she filed a supplemental petition to modify the arrangement. The mother wanted to revert to a 2014-like plan. And she alleged a substantial change in circumstances due to her move back to Florida, to within about thirty-five miles of the children. The trial court granted her petition, agreeing that her move back to Florida constituted a substantial change of circumstances and was in the children's best interests. The father appealed.

II.

"Appellate courts review orders modifying time-sharing for an abuse of discretion ...." Ness v. Martinez , 249 So. 3d 754, 757 (Fla. 1st DCA 2018). Modification proceedings are "entirely different" than initial custody decisions, Cooper v. Gress , 854 So. 2d 262, 267 (Fla. 1st DCA 2003), and courts have considerably less discretion in considering them "because [they] disrupt children's lives." Ragle v. Ragle , 82 So. 3d 109, 113 (Fla. 1st DCA 2011). Parties seeking to modify a parenting plan must show "a substantial, material, and unanticipated change in circumstances and ... that the modification is in the best interests of the child." § 61.13(3), Fla. Stat.; see also Garcia v. Guiles , 254 So. 3d 637, 640 (Fla. 1st DCA 2018). "This required proof imposes an ‘extraordinary burden’ on the party seeking modification." Hutchinson v. Hutchinson , 287 So. 3d 695, 696 (Fla. 1st DCA 2019) (quoting Ragle , 82 So. 3d at 111 ). In deciding whether the trial court abused its discretion, we look to the record for competent, substantial evidence to support the trial court's decision. Jannotta v. Hess , 959 So. 2d 373, 374 (Fla. 1st DCA 2007).

Here, the trial court found the mother's 2018 move from New Jersey back to Florida to be a substantial change in circumstances warranting a timesharing modification. According to the record, this was the mother's third long-distance move since the parties divorced in 2012. She first lived out of state, then moved back to Florida, then moved to New Jersey with her new husband, and now has moved back to Florida. Until now, with each of the mother's moves, the parties agreed to modify their timesharing arrangement. But this time the father objected to modifying the timesharing again, arguing that the mother's situation doesn't meet the legal requirements for the court to do so.

The father's argument is correct. The final judgment found a substantial change in circumstances simply based on the mother's move back to Florida. But Florida law doesn't consider such a move—by itself and without any showing of how that move impedes the present timesharing plan—to necessarily constitute a substantial and material change in circumstances. See, e.g. , Moore v. McIntosh , 128 So. 3d 985, 985 (Fla. 1st DCA 2014) (recognizing that "relocation does not itself constitute a substantial change of circumstances warranting modification of custody"); Hutchinson , 287 So. 3d at 697 (ex-wife's move to another home in the same school district not a substantial change in circumstances); Ogilvie v. Ogilvie , 954 So. 2d 698, 701 (Fla. 1st DCA 2007) (no change in circumstances where parents relocated from New York to Florida); see also Shafer v. Shafer , 898 So. 2d 1053, 1055–56 (Fla. 4th DCA 2005) ("[C]ourts have routinely held that relocation alone is not a substantial change in circumstances to support a modification of custody."); Sotomayor v. Sotomayor , 891 So. 2d 559, 561 (Fla. 2d DCA 2004) ("[A] custodial parent's move to a foreign state, without more, is not a substantial change of circumstances that would support a modification of custody."); Zugda v. Gomez , 553 So. 2d 1295, 1296–97 (Fla. 3d DCA 1989) (concluding that custodial parent's move from Florida to Michigan alone not a substantial change in circumstances). In addition, the...