Cole v. Cole

• Citation: 13 Fla. L. Weekly 2071,530 So.2d 467
• Decision Date: 01 September 1988
• Docket Number: No. 87-2201,87-2201
• Parties: 13 Fla. L. Weekly 2071 Darrell Everett COLE, Appellant, v. Holly Ann COLE, etc., Appellee.
• Court: Court of Appeal of Florida (US)

Page 467

530 So.2d 467

13 Fla. L. Weekly 2071

Darrell Everett COLE, Appellant, v. Holly Ann COLE, etc., Appellee.

No. 87-2201.

District Court of Appeal of Florida,

Fifth District.

Sept. 1, 1988.

Horace Smith, Jr., Daytona Beach, for appellant.

Delia A. Doyle, Daytona Beach and James R. Clayton, Deland, for appellee.

DANIEL, Judge.

Darrell Everett Cole appeals a final order allowing Holly Ann Cole to remove their minor child from the State of Florida and denying his request for a modification of a final judgment of dissolution of marriage to change the child's primary physical residence from the mother to him. We reverse.

Darrell and Holly Ann were married in 1975. Their son was born in November of 1983. The couple were divorced on May 13, 1985. The final judgment dissolving the marriage incorporated a property settlement agreement. By the agreement, the parties stipulated to shared parental responsibility with the mother having the primary physical residence and the father having frequent and continuous liberal rights of contact with the child.

In addition to alternating weekends, every Tuesday through Thursday, four weeks during the summer, alternating Easter and Thanksgiving, half of the school holiday Christmas period and Father's Day, the parties agreed that the father would have open communication with the minor child by telephone at all times. According to the father's calculations, the visitation agreement allowed the father to have the child approximately 189 nights during the year.

In addition to the visitation terms, the parties stipulated and agreed that:

Other than for temporary vacation periods (not to exceed two weeks) neither party shall remove the minor child from the State of Florida without prior written consent from the other party, or court order.

On August 5, 1986, the mother filed a motion to remove the child from Florida. The father later filed a motion to prevent removal of the child from Florida as well as a supplemental complaint to modify the final judgment of dissolution of marriage seeking a change in the primary physical residence of the child. The court granted the mother's motion to remove the child from the state and denied the father's request for primary custody.

After the final judgment, the mother remarried and at the time of the hearing below was living out of the state with the child pursuant to a temporary order of the court providing for a shared visitation arrangement in which the child would live with his mother for one month and his father the next month. The mother alleged that a substantial change in circumstances had occurred since entry of the final judgment as she had married an air traffic control assistant who was required to attend air traffic control school in Oklahoma for six months. Apparently, the temporary order was to accommodate that period.

This court has upheld restrictions on the movement of divorced parents in violation of terms within a final judgment resulting in interference with visitation rights accorded the noncustodial parent. See Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982). When a restriction is imposed by a final judgment and interferes with the custodial parent's freedom to make such a change, that parent has the right to seek a modification of the custody provisions of the final judgment by satisfying the applicable requirements for such a proceeding--a showing of substantial or material change of circumstances and that the requested modification would be in the best interests of the children. See Jones v. Vrba, 513 So.2d 1080 (Fla. 5th DCA 1987); Giachetti, 416 So.2d at 29.

The parties now before this court agreed that neither would remove the minor child from Florida except for vacation periods without prior written consent from the other or court order. That agreement was incorporated into the final judgment of dissolution of marriage. Thus, the mother as the party seeking modification of the restrictions carried the burden of showing a substantial change in circumstances and that the child's best interest would be promoted by his removal to Kentucky, where the mother is now living.

In Jones v. Vrba, a final judgment of dissolution of marriage included a clause prohibiting removal of the child except for temporary visits without the consent of the court or the other parent. Additionally, the final judgment included a grandparent visitation clause. The father appealed an order allowing the mother to permanently remove the son to Washington D.C. to be with her and her third husband and an order denying his petition for change of custody. This court reversed, finding that the mother failed to establish sufficient evidence to warrant a change in the final judgment and that the father had established...