Cecena v. Chambers

• Decision Date: 11 October 2006
• Docket Number: No. 2D05-5715.,2D05-5715.
• Citation: 938 So.2d 646
• Parties: Anthony R. CECENA, Jr., Appellant, v. Ginger A. CHAMBERS, Appellee.
• Court: Florida District Court of Appeals

938 So.2d 646

Anthony R. CECENA, Jr., Appellant, v. Ginger A. CHAMBERS, Appellee.

No. 2D05-5715.

District Court of Appeal of Florida, Second District.

October 11, 2006.

Julian A. Hayes of Law Offices of J.A. Hayes, P.A., Tampa, for Appellant.

Neal Weinstein, Tampa, for Appellee.

STRINGER, Judge.

Anthony R. Cecena, Jr., the Father, seeks review of a postdissolution order granting the supplemental petition for modification of custody filed by Ginger A. Chambers, the Mother. We reverse because the trial court did not make a determination that the modification of custody was supported by a substantial change in circumstances.

The parties in this case entered into a marital settlement agreement that provided for shared parental responsibility with the Father as the primary residential parent. It provided for visitation by "mutual agreement," or in the absence of mutual agreement, the marital settlement agreement provided two detailed visitation schedules: one that applied if the parties resided 100 miles or less apart and another that applied if the parties resided more than 100 miles apart. The marital settlement agreement also provided that if either parent relocates, "the relocating parent shall be responsible for the transportation, including pickup from and return to the other parent's residence for visitation." At the time the marital settlement agreement was executed, the parties lived less than 100 miles apart.

The final judgment of dissolution was entered on March 5, 2004, and shortly thereafter, the Father relocated to Iowa with the parties' two-year-old child. The Father refused to pay for the child's transportation to Florida for visitation with the Mother as required by the marital settlement agreement. In response, the Mother filed three pleadings with the court on April 24, 2004, about six weeks after entry of the final judgment: (1) a motion for relief from judgment alleging that she never read the marital settlement agreement, (2) an emergency motion for order directing return of the child to the jurisdiction, and (3) a supplemental petition for modification of the final judgment. The supplemental petition for modification alleged that the Father's relocation to Iowa constituted a substantial change in circumstances and requested that the Mother be awarded primary residential custody of the child.

The court held hearings on the first two motions in July and September 2004. In September 2004, the Mother filed a motion for contempt or, in the alternative, to enforce the final judgment. The motion alleged that the Father had not provided for the child's transportation from Iowa for visitation in Florida with the Mother as required by the marital settlement agreement.

In January 2005, the court rendered a written order denying the motion for relief from judgment based on its finding that the Mother's failure to read the marital settlement agreement was her own fault. The court also denied the emergency motion for order directing return of the child to the jurisdiction based on its finding that the final judgment did not prohibit the Father's relocation. The Mother did not appeal these adverse rulings to this court, and the supplemental petition for modification and motion for contempt or to enforce the final judgment remained pending.

The court held a hearing on the two pending motions in May 2005. The transcript of that hearing is not included in the record on appeal. The trial court granted the motion to enforce final judgment and directed the Father to provide forty-two days of visitation between June 1 and August 31, 2005. The parties do not dispute that the Father complied with this order. Nonetheless, after a second hearing in July 2005, the transcript of which is also not in the record, the court granted the Mother's supplemental petition for modification and awarded custody to the Mother.

In its order granting the supplemental petition for modification, the court cited portions of its order granting the motion to enforce final judgment in which it found that (1) "[w]ithin weeks of entry of the Judgment the [Father] unilaterally moved to the State of Iowa with the minor child," (2) the Father had already decided to move at the time he signed the marital settlement agreement, (3) "[t]he [Mother] testified that, although the [Father] had raised the possibility of moving to Iowa, she did not know that the [Father] planned, within weeks, to move there," (4) the Mother had not seen the child since the Father moved to Iowa, and (5) "[t]he [Father] knew he would not comply with the visitations [sic] provisions of the Marital Settlement Agreement when he signed it." The court then conducted a best interests analysis and concluded that even though both parents were equally good providers and loved the child equally, the Father's failure to facilitate visitation with the Mother rendered a modification of custody in the child's best interests. What the court did not do was make a determination that modification of custody was supported by a substantial change in circumstances.

On appeal, the Father argues that the modification of custody was not supported by a substantial change in circumstances because relocation was contemplated by the marital settlement agreement. The Father also argues that the trial court erred in refusing to consider less drastic measures to enforce visitation. The Mother argues that the court's findings that the Father had relocated and had failed to facilitate visitation were "implicit" findings of a substantial change in circumstances. The Mother also argues that no less drastic measures were feasible in this case.

As authority for the modification of custody, the trial court relied on section 61.13(4)(c)(5), Florida Statutes (2003). That statute provides authority for a court to modify custody if the custodial parent refuses to honor the noncustodial parent's visitation rights without proper cause and the modification is in the best interests of the child. At least one Florida court has previously held that a substantial change in circumstances was not required for custody modifications under section 61.13(4)(c)(5). See, e.g., Compton v. Compton, 701 So.2d 110, 112 (Fla. 5th DCA 1997); Steiner v. Romano-Steiner, 687 So.2d 21 (Fla. 5th DCA 1996). However, the supreme court has recently held that the...