Chant v. Chant

• Decision Date: 05 February 1999
• Docket Number: No. 97-01760,97-01760
• Citation: 725 So.2d 445
• Parties: Linda C. CHANT, Appellant, v. David E. CHANT, Appellee.
• Court: Florida District Court of Appeals

725 So.2d 445

Linda C. CHANT, Appellant, v.David E. CHANT, Appellee.

No. 97-01760

District Court of Appeal of Florida, Second District.

February 5, 1999.

M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellant.

Robert E. Wiggins, Palm Harbor, for Appellee.

NORTHCUTT, Judge.

We reverse the postdissolution order transferring the primary residence of the parties' children to Mr. Chant, because he did not meet the extraordinary burden necessary to justify judicial intervention in the parties' dispute.

Linda and David Chant divorced in October 1993.The final judgment incorporated the parties' marital settlement agreement, which named Ms. Chant as the primary custodial parent of their two minor daughters.Mr. Chant remarried, and Ms. Chant was engaged to be married when, eighteen months later, Mr. Chant filed a petition for modification of the children's custody.Following a final hearing, by which time Ms. Chant had remarried, the circuit court granted Mr. Chant's petition based on the following findings of fact:

2) Since the time of the Final Judgment, there have been the following changes in circumstances in the lives of the parties:

a) Both parties have remarried;

b) The former Husband has remarried a person that appears to the children to be more emotionally available to them while the Former Wife has remarried to someone who the children feel is not;

c) Both sets of parents make sure that all the children's physical needs are well attended to but the Former Wife does not understand that the children's emotional needs are just as important as their physical needs.

3) Both sets of parents love the children and the children love both sets of parents very much.

4) Both children expressed a desire to live with the Former Husband and the Court finds that they are old enough to start making known their desire of where they want to live as long as it is a well thought out and reasonable decision.

5) The Former's Wife's remarriage has been detrimental to the children's emotional needs and the children are in a stressful environment and they just don't feel the warmth and nurturing that they need at this particular point in their lives.

6) The Former Wife is in need of counseling to understand the emotional needs of the children.

These findings variously were insufficient to justify a modification of custody, or were unsupported by the evidence in the record.That evidence demonstrated that both parents were loving and attentive.The children liked their stepmother more than their stepfather, and they described some friction in their mother's household based on what boiled down to petty differences.In addition, on some occasions Ms. Chant or her new husband had criticized Mr. Chant.These appeared to be isolated incidents, however.Otherwise, for the most part the two parents cooperated well.There had been one visitation dispute, involving a July 4th weekend, but Ms. Chant generally had been flexible about the visitation schedule when necessary to accommodate shift changes at Mr. Chant's job.

The evidence also disclosed that when the children first expressed their desire to live with their father, he advised them not to inform their mother.Rather, they were to keep their wishes a secret while he investigated the possibility of a custody change.Ms. Chant first learned that her children desired to leave her home eight months later, when she was served with Mr. Chant's modification petition.

At the final hearing Mr. Chant presented the testimony of a clinical social worker he employed to evaluate the children's preference.The social worker opined that the children's desire to change their residence was genuine and well-founded.But she acknowledged that as of the final hearing date she had not seen either child in nearly a year.A custody investigator for the Sixth Judicial Circuit interviewed the children and the parties, and visited each home.Applying the statutory factors for determining the best interests of children set forth in section 61.13(3), Florida Statutes(1995), the investigator opined that Mr. Chant enjoyed an edge in three: as the parent most likely to allow frequent and continuing contact with the nonresidential parent, as the parent more likely to foster the children's relationship with the nonresidential parent, and as the children's choice to be residential parent.

Neither the social worker nor the custody investigator suggested that Ms. Chant did not understand the children's emotional needs or the importance of those needs.That suggestion was made by the trial judge who, when announcing her decision, opined that Ms. Chant "doesn't understand that really the wors[t] thing she can do is win this case because she needs to let these children go lovingly and voluntarily with their father or they're going to resent her forever.This Court can't make her understand that.She doesn't understand that and until s...