Clark v. Clark, 1D01-3921.
| Decision Date | 06 September 2002 |
| Docket Number | No. 1D01-3921.,1D01-3921. |
| Citation | 825 So.2d 1016 |
| Parties | Cynthia D. CLARK, Appellant, v. Edward G. CLARK, Appellee. |
| Court | Florida District Court of Appeals |
Appellant, pro se.
David C. Gaskin, Wewahitchka, for Appellee.
Cynthia D. Clark appeals the supplemental final judgment that awarded primary residential custody of the parties' minor child to her former husband, Edward G. Clark. The trial court relied on evidence outside the record in deciding the question of custody, and made no finding that awarding custody to Mr. Clark was in the child's best interests. For both these reasons, we reverse and remand for further proceedings.
Before entering final judgment, the trial court had awarded temporary custody of the child to Mr. Clark. In the final judgment of dissolution, the trial court reserved jurisdiction to determine permanent primary residence and visitation rights post-dissolution. After a subsequent hearing, which was not transcribed, the trial court entered a supplemental final judgment, which provides in relevant part as follows:
While the supplemental final judgment does not expressly designate Mr. Clark the child's primary residential parent, it does so implicitly in that it orders Ms. Clark to pay child support and grants her visitation rights. See Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995)
(). Even a temporary award of custody, moreover, requires consideration of the child's best interests and findings based on evidence, in accordance with section 61.13(3), Florida Statutes (2000).
A trial court need not make separate findings as to each of the factors in section 61.13(3), but it must find, at a minimum, that its custody determination is in the best interests of the child. See Duchesneau v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th DCA 1997)
; Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc); Murphy v. Murphy, 621 So.2d 455, 457-58 (Fla. 4th DCA 1993); see also Cadle v. Norris, 817 So.2d 1075, 1076 (Fla. 5th DCA 2002); Young v. Hector, 740 So.2d 1153, 1158 (Fla. 3d DCA 1998) (en banc). The requisite findings must either be stated on the record or set out in the custody order:
[I]n the context of shared parental responsibility, ... a trial court's ultimate finding, expressed either on the record or in the final judgment, that an award of primary residential custody to one parent is in the best interests of a child, is sufficient to sustain the award so long as there is substantial competent evidence in the record that permits the court to properly evaluate the relevant factors.
Bader, 639 So.2d at 124; see also Duchesneau, 692 So.2d at 206
; Murphy, 621 So.2d at 457. The supplemental final judgment in the present case does not contain necessary findings. It merely recites that "the Former Wife's circumstances do not provide the highest degree of stability" and that "though no evidence was presented, the neighborhood in which the Former Wife is residing is dangerous" without ever addressing the broader question of the best interests of the child. The...
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