Buschor v. Buschor, Case No. 5D17-155

• Decision Date: 01 August 2018
• Docket Number: Case No. 5D17-155
• Citation: 252 So.3d 833
• Parties: Sara A. BUSCHOR n/k/a Sara A. Barnes, Appellant, v. Joseph BUSCHOR, Appellee.
• Court: Florida District Court of Appeals

252 So.3d 833

Sara A. BUSCHOR n/k/a Sara A. Barnes, Appellant,

v.Joseph BUSCHOR, Appellee.

Case No. 5D17-155

District Court of Appeal of Florida, Fifth District.

Opinion filed August 1, 2018

Jarett A. de Paula, of David A. Vukelja, P.A., Ormond Beach, for Appellant.

Barry P. Burnette, of Barry P. Burnette, P.A., Tavares, for Appellee.

COHEN, C.J.

Sara Buschor ("Former Wife") appeals a Final Judgment of Modification entered in favor of Joseph Buschor ("Former Husband"), which changed the primary residence of the parties' minor child to that of Former Husband by awarding Former Husband seventy percent timesharing and denied Former Wife's petition for relocation. Former Wife argues that the timesharing modification and change in the child's primary residence violates her due process rights because Former Husband did not seek that relief in his pleadings below. Former Wife also contends that the trial court abused its discretion in denying her petition for relocation. We agree on both points and reverse.

The record confirms that Former Wife did not have notice that the trial court might change the child's primary residence or award any more than equal timesharing to Former Husband, which is the amount he requested in his petitions for modification. This lack of notice and the trial court's ruling constituted relief outside of that requested in Former Husband's pleadings in violation of Former Wife's due process rights. See, e.g., Maras v. Still, 927 So.2d 192 (Fla. 2d DCA 2006) (finding that former wife's due process rights were violated when trial court awarded relief not requested in former husband's pleading and former wife was without notice of the possible outcome).

As to the trial court's denial of Former Wife's petition for relocation, we find that the trial court did not properly consider the best interest factors set forth in section 61.13, Florida Statutes (2015), or the factors regarding relocation set forth in section 61.13001, Florida Statutes (2015). With respect to the findings the trial court did make, the record reveals those findings to be unsupported by competent, substantial evidence. The undisputed evidence presented should have resulted in the granting of Former Wife's petition for relocation.

Section 61.13001(7) expressly states that no "presumption in favor of or against a request to relocate with the child" arises simply because a "move will materially affect the current schedule of contact, access, and timesharing with the nonrelocating parent." See § 61.13001(7), Fla. Stat. Instead, when considering whether to allow a requested relocation, the court must consider all of the following factors:

(a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d) The child's preference, taking into consideration the age and maturity of the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f) The reasons each parent or other person is seeking or opposing the relocation.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Id. § 61.13001(7)(a)-(k). Section 61.13 provides twenty factors regarding the best interest of the child for the court to consider when modifying a timesharing agreement. Id. § 61.13(3)(a)-(t). As the parent seeking relocation, Former Wife has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. Id. § 61.13001(8). If this initial burden is met, the burden then shifts to the nonrelocating parent, Former Husband here, to show by a preponderance of the evidence that relocation is not in the best interest of the child. Id. Granting or denying relocation based on findings that are not supported by competent, substantial evidence constitutes reversible error. E.g., Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004).

The parties divorced prior to the birth of their child, and the parties' marital settlement agreement provided that the unborn child "shall reside primarily with the Mother." The agreement further provided that "the Father shall have liberal and frequent contact and access with the child as agreed upon by the parties, and each of the parties shall exercise the utmost of good faith and consent to all reasonable requests of the other party in connection therewith." The agreement outlined specific graduated timesharing based on the child's age.

Despite having only seen the child a handful of times over the first three months of the child's life, Former Husband filed his first supplemental petition to modify parental responsibility, visitation, or parenting plan/timesharing schedule when the child was just over three months old, requesting to alter the recently agreed-upon arrangement. That supplemental petition was resolved at mediation, and the mediated settlement agreement modified the parties' original timesharing arrangement by increasing Former Husband's routine timesharing as follows:

The Father shall be entitled to timesharing every other weekend from Saturday at 9:00 A.M. until Sunday at 6:00 P.M..... It is also agreed that the Father shall be entitled to have timesharing with the minor child each week on Tuesday from after work and in no event later than 6:00 P.M. by picking up the minor child from either the Mother or the child's child care provider and this timesharing continuing until the following morning, at which time the Father shall ensure that the minor child is either dropped to the Mother's home or to the minor child's child care provider by 9:00 A.M.

The mediated settlement agreement also provided that the parties "shall be entitled to agree on additional timesharing so long as they mutually agree."¹

One year after the modification order was entered, Former Husband filed a second supplemental petition for modification, requesting that the trial court modify his visitation "to provide [him] with 50% of the contact, visitation and parenting of the minor child...." In the petition, Former Husband alleged that Former Wife had engaged in alienation of affection, had him falsely arrested shortly after the modification, filed a frivolous injunction solely for the purpose of keeping Former Husband away from the child, caused Former Husband to come under investigation by the FDLE, failed to keep Former Husband apprised of information regarding the health and welfare of the child, falsely accused his wife of biting the parties' child, and caused her employer (the church daycare) to deny Former Husband the ability to visit the child at the daycare and to go online to view the child at the daycare in real time.²

While Former Husband's petition was pending, Former Wife's current husband learned that his employment as a master technician in a specialized field would be coming to an abrupt end. He was given the option to continue working his same job in South Florida or Alabama. He searched for local jobs in the same industry that would offer the same benefits and similar pay so that he could continue to support his family without relocating, but found none. Given that the current husband was the primary provider for his family and that he could not find comparable employment locally that would provide insurance benefits, he felt compelled to accept the employment offer and move to South Florida out of necessity.³

Consequently, Former Wife filed a motion for relocation, requesting to relocate with the child to South Florida due to financial necessity arising from her current husband's change of employment. Former Wife noticed her motion for relocation for a hearing prior to moving, and Former Husband responded by filing a motion asking the court, in part, to strike Former Wife's relocation request as improper under section 61.13001(3), Florida Statutes.

The trial court held a hearing on Former Husband's motion to strike but canceled the hearing on Former Wife's motion to...