Cooper v. Gress, 1D02-4376.

• Citation: 854 So.2d 262
• Decision Date: 12 September 2003
• Docket Number: No. 1D02-4376.,1D02-4376.
• Parties: Charles Alan COOPER, Appellant, v. Robin L. GRESS, f/k/a Robin L. Cooper, Appellee.
• Court: Court of Appeal of Florida (US)

854 So.2d 262

Charles Alan COOPER, Appellant, v. Robin L. GRESS, f/k/a Robin L. Cooper, Appellee.

No. 1D02-4376.

District Court of Appeal of Florida, First District.

September 12, 2003.

William D. Cochran, IV; and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellant.

James T. Miller, Jacksonville, for Appellee.

BROWNING, J.

Charles Alan Cooper, the former husband, appeals an order granting the supplemental petition filed by the former wife, Robin L. Gress (formerly known as Robin L. Cooper), seeking to modify the rotating-custody arrangement approved in the final judgment of dissolution of marriage. Concluding that the trial court applied the wrong legal standard to the modification question, and that the former wife failed to satisfy the extraordinary burden to warrant modifying custody, we reverse the order and remand with instructions to reinstate the original rotating custody plan and child-support obligation. See Ring v. Ring, 834 So.2d 216 (Fla. 2d DCA 2002) (holding that party seeking post-dissolution modification of custody has extraordinary burden to prove occurrence of substantial, material change in circumstances since final judgment that is detrimental to children's best interests; and that parties' continuing hostility and mutual failure to communicate did not constitute material change in circumstances justifying custody modification for three of parties' four children).

The parties were married in February 1992 and have a daughter (born in March 1994) and a son (born in July 1996). In December 1998, the former husband petitioned to dissolve the marriage. At about the same time, the parties signed a stipulation and agreement asking the trial court to incorporate the whole agreement into its final judgment. In pertinent part, the parties agreed to rotate custody of the children to allow each parent an equal amount of custodial time. Each of the parties recognized that the other is a fit parent who has a unique contribution to offer the children. The parties agreed to share all decisions regarding the children's health and medical and dental care, religious and secular education, vacations and travel, extracurricular activities, and general welfare and upbringing. While the parties expressly agreed to work together cooperatively to realize the goals set forth in the stipulation and agreement, they acknowledged the possibility that the children's custodial needs might change or that the parties might not be able to resolve "future controversy" in a mutually acceptable way. Accordingly, the "Split Custody" section of the stipulation and agreement includes the following language:

The parents are aware of the changing needs of their children, as well as their own changing lifestyles. Therefore, the parties shall renegotiate their timesharing plans as needed to accommodate these changing needs.

The parents shall, if they cannot mutually resolve future controversy between them regarding their children and their relationship as parents, mutually seek an appointment with the Family Mediation Unit, or with any mediator of their choice, for assistance in resolving this controversy on a mutually acceptable basis.

The parties agreed on a plan under which the children would spend one week with one parent and then move to the other parent's residence every Friday. Certain exceptions were contemplated for significant holidays and for school vacation periods.

The trial court issued a January 1999 final judgment dissolving the marriage and incorporating the specific terms of the parties' stipulation and agreement in all material respects. Each party was made solely responsible for the payment of his or her own attorney's fees and costs. The trial court retained jurisdiction to enforce or modify the judgment provisions as may be legally permissible and warranted.

In June 2000, the former husband filed an emergency petition to enforce his visitation rights while the children were residing with their mother. He alleged that she was restricting and trying to control his visitation and was speaking disparagingly to the children about him and his new wife. The former wife (who also had remarried) responded by filing a supplemental petition to modify the final judgment by designating herself as the primary residential parent, by allowing the former husband frequent and liberal visitation, and by ordering him to pay her for child support and attorney's fees and costs. The former wife's motion alleged that she had agreed to the rotating-custody arrangement because the former husband promised mutual cooperation on all issues concerning their children. She alleged that his cooperation had ceased and that the parties' ability to communicate had diminished. The motion alleged, further, that a serious illness had recently befallen the former husband, sometimes rendering it impossible for him to provide personal care for the children. The former wife alleged "[t]here has been a substantial and material change in circumstances since the entry of the Final Judgment, specifically: 1) the parties do not communicate with each other; 2) the former husband sometimes is unable to care for the children; 3) the children desire to live with their mother full-time; 4) it would be in the children's best interests to reside primarily with their mother; and 5) the former wife needs child support from the former husband. The motion alleged that the former wife is unable to pay her attorney's fees and costs and that the former husband has the financial means to pay.

The former husband filed an answer and a supplemental counter-petition asking the court to designate him as the primary physical residential parent. Like the former wife, he conceded that the parties' ability to communicate with each other has deteriorated since the entry of the final judgment of dissolution. To support his counter-petition, the former husband alleged that the former wife had failed to abide by the terms of the final judgment by interfering with, restricting, and trying to control his visitation; that she had spoken disparagingly to the children about him and his current wife; that the former wife had harassed him with numerous e-mails and telephone calls; and that she had refused to keep him informed about the children's whereabouts outside Florida and about their medical care.

Significantly, a different circuit judge from the one who had entered the final judgment of dissolution incorporating the rotating-custody plan presided over the modification hearing. The trial court found that the children's best interests and welfare will be served by granting the former wife primary residential custody. The court found that the children seem "somewhat happy" but "act too serious." They appear to be edgy and pensive when both parents are present; the children seem not to have the freedom to enjoy themselves when the former husband is present. They appear to bear a heavier burden to please their father. The court found that due to the parties' inability to communicate effectively, the children have been denied normal socialization opportunities and participation in youth activities involving their church and choir, T-ball, Girl Scouts, karate, and summer camp, and have suffered because of the parties' behavior toward each other. Despite their mutual inability to communicate effectively, both parties were found to be very committed, devoted parents who appear to seek the best for their children. Tracking the factors set forth in section 61.13(3), Florida Statutes (1999), which are typically used to make initial custody determinations, the trial court made findings regarding each party and designated the former wife as the primary residential parent. The court reserved jurisdiction to decide child support and attorney's fees and costs, which it subsequently awarded.

The former husband contends that the trial court applied the wrong legal standard to the issue of whether to modify the custody arrangement. We have de novo review over this question of law. See Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002). Clearly, "[a] trial court's authority and discretion in a modification proceeding are more restricted than at the time of the initial custody determination." Newsom v. Newsom, 759 So.2d 718, 719 (Fla. 2d DCA 2000); Young v. Young, 732 So.2d 1133 (Fla. 1st DCA 1999); Jablon v. Jablon, 579 So.2d 902 (Fla. 2d DCA 1991); Zediker v. Zediker, 444 So.2d 1034, 1036 (Fla. 1st DCA 1984) (describing movant's "extraordinary burden" to satisfy "substantial change in circumstances" and "children's best interests" tests to justify modification). In seeking a modification of custody, the movant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child's best interests justify changing custody. Newsom, 759 So.2d at 719; Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996). Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992).

Although the former wife's supplemental petition for modification invoked the "magic words," alleging a substantial change of circumstances since the final judgment, in fact the general allegations are insufficient as a matter of law to satisfy the "substantial change" prong, and the trial court reversibly erred in holding the former wife to a significantly lower burden to prove only the "best interests" prong. The fact that the parties had a rotating-custody arrangement, or that both parties were seeking designation as the primary physical residential parent, did not lessen the...