Calle v. Calle

• Decision Date: 26 October 1993
• Docket Number: No. 92-2151,92-2151
• Citation: Calle v. Calle, 625 So.2d 988 (Fla. App. 1993)
• Parties: 18 Fla. L. Weekly D2303 Jose Leonardo CALLE, Appellant, v. Noris CALLE, Appellee.
• Court: Florida District Court of Appeals

Page 988

625 So.2d 988

18 Fla. L. Weekly D2303

Jose Leonardo CALLE, Appellant, v.Noris CALLE, Appellee.

No. 92-2151.

District Court of Appeal of Florida Third District.

Oct. 26, 1993.

Fitzgerald, Charlip, Delgado, Befeler & Portuondo and Luis Delgado, Miami, for appellant.

David S. Abrams, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.

PER CURIAM.

A natural father appeals an order denying his motion for primary custody of his two youngest children in favor of their older sister and maternal grandmother.We reverse the order with directions to award the father custody of the two children.

The father and mother were married in Miami in 1981.The mother had two children from a prior marriage whom the father adopted.Sabrina and Leonardo, Jr. were born of the marriage, which was dissolved in 1988.In a property settlement agreement incorporated into the final judgment, it was agreed that the mother would maintain primary residential responsibility of all the children, with the father having reasonable visitation rights.The mother was to receive as child support $600 per month from the rental income of the parties' jointly owned property, plus an additional $1,000 per month from interest on a mortgage jointly owned by the parties.After the dissolution, the father returned to his native Medellin, Colombia to reside, but often returned to Miami to visit the children.

In February 1990, the mother was arrested at her home and indicted for importation, conspiracy to distribute, and the distribution of cocaine.Thirteen hundred pounds of cocaine and approximately $500,000 in cash were taken from her residence.Cocaine and currency were scattered throughout the home including the children's bedrooms.Ultimately, the mother pled guilty to the charges and was sentenced to twenty-five years in prison.Although the mother's sentences have been reduced, it is obvious she does not expect to be released from prison in the near future.

After the mother's arrest the children moved into and resided in at least three different homes.The eldest child, who had attained majority and is a full-time pre-med student at the University of Miami, cared for her three younger siblings, assuming the maternal role in the children's lives.The maternal grandmother who cannot speak any English provided additional home supervision, as did the children's maternal uncles.The mother maintained daily telephone contact with the children from prison.

Following the mother's arrest, the property providing the children with support under the property settlement agreement was seized by the federal government.As a result, the mother's family supported the children from the time of her arrest until the time of the custody hearing.Although the father made no further financial contribution to the support of the children, upon learning of the mother's arrest, he sent all four children airline tickets for passage from Miami to Medellin, with the request that they reside there with him.The children refused to go.

Ultimately, the father returned to Miami whereupon he filed an emergency ex-parte request for temporary change of custody of the two youngest children, Sabrina and Leonardo, ages nine and seven, together with a supplemental complaint to modify the final judgment and establish sole parental responsibility in him.The mother filed a petition to award temporary custody of the children to their maternal grandmother and oldest sister, age twenty.¹

Temporary custody was granted the father, and the matter was referred to a general master for the taking of testimony and the entry of a recommended order.The court-appointed psychologist, in pertinent part, advised:

Mr. Calle clearly loves his children, and wants to provide for them.He feels very hurt and rejected by [the two older siblings], and does not seem to be including them in his plans, perhaps because he feels that they would refuse to live with him.Mr. Calle is capable of being a good parent, although in all likelihood he is more rigid and strict, and less nurturing than Mrs. Calle.He appears to be a responsible individual who would provide for all his children, if allowed to do so.

That portion of the report is unrefuted by the record.The psychologist, nevertheless, concluded it would be detrimental to the children if primary residential responsibility were awarded the father since he intended to move them to Medellin to reside.It was the psychologist's view that the move would cut the children off from all they had known, especially their sisters and their mother's family.For this reason, the psychologist recommended that primary residential responsibility be awarded the father on the condition that he remain in the United States.Based on this testimony, the master awarded primary residential responsibility of Sabrina and Leonardo to their older sister and maternal grandmother, granting them leave to file a motion to intervene within twenty days.Over the father's exceptions, the trial court confirmed the master's findings and recommendation and entered the order under review.

The law recognizes that a natural parent has a paramount and...