Corey v. Corey

• Decision Date: 30 December 2009
• Docket Number: No. 3D08-1461.,3D08-1461.
• Citation: 29 So.3d 315
• Parties: Michael James COREY, Appellant, v. Erica Lynn COREY, Appellee.
• Court: Florida District Court of Appeals

29 So.3d 315

Michael James COREY, Appellant, v. Erica Lynn COREY, Appellee.

No. 3D08-1461.

District Court of Appeal of Florida, Third District.

December 30, 2009.

Fowler White Burnett and Kathy M. Klock and Greg A. Lewen, for appellant.

Simon, Schindler & Sandberg and Roger Schindler and Anthony V. Falzon, for appellee.

Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

In this dissolution action, Michael James Corey, the father, contends that the trial court erred in designating Erica Lynn Corey, the mother, the primary residential parent of their son. Because we conclude that the trial court erred as a matter of law in finding that the father was required to overcome a presumption against rotating custody, we reverse.

I. FACTUAL HISTORY

The parties, who have one son, separated when the mother left the parties' home in Gainesville and moved with their child to Key Biscayne. The father then moved to Key Biscayne to be near the child and his school. For the two years prior to trial, the parties followed a schedule in which their son spent alternating weeks with each parent. The testimony below unequivocally established that the child was thriving in all respects under this arrangement. In fact, certain health issues from which the child suffered improved in this two-year period.

The record contains detailed testimony concerning the parties' respective work schedules. The father is employed as an assistant state attorney. The testimony at trial established that he ordinarily picks up the child from the school's after-care program before 6 p.m. each day. If, for work reasons, the father is unable to arrive at school by that time, he is able to rely upon family and friends to pick up the child. However, there was no testimony that the father was ever late in picking up the child from the after-care program.

The wife is employed as a teacher at the same school the child attends. She leaves work around 4:00 p.m., and is therefore available to pick up the child from after-care each day.

The father sought weekly rotating custody, or, if the trial court denied rotating custody, that he be designated the primary residential parent. The mother also sought to be designated the primary residential parent. Ultimately, the trial court entered a Final Judgment of Dissolution of Marriage and Other Relief in which it denied the father's request for rotating custody and awarded primary residential custody of the child to the mother. The trial court then entered a Child Time Sharing and Parental Responsibility Order in which it ordered that the child be with the father on alternating weekends, beginning on Thursday nights. In the weeks during which the child would not be with his father on the weekend, he would be with the father on Thursday night. This order was later amended to provide that if the father cannot pick up the child from school on his designated days with the child, the mother will be entitled to do so.

In reaching its decision, the trial court found that Florida law established a presumption against ordering rotating custody, and that the father was required to establish "exceptional circumstances" in order to justify such an order. The trial court stated:

1. ROTATING CUSTODY

While a Court clearly has the power to order rotating custody (Sec.61.121, Fla.Stat.) the long prevailing law has been that such an arrangement is presumptively NOT in a child's best interests. In order to overcome that presumption and make such an award this Court would have to find that exceptional circumstances exist which make such an arrangement in the child's best interests. See for example Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001).

Florida courts have identified several factors that a trial court should consider in determining whether the particular circumstances in a case have overcome the presumption against rotating custody. Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995). With the exception of the fact that both parents live in close proximity to each other the Court finds that the long-standing presumption against rotating custody was not overcome by competent substantial evidence.

While the Husband believes that such an arrangement is fair to him the Court finds that there was a lack of competent substantial evidence that alternating weeks would be fair to the child nor was there competent, substantial evidence that the frequency of the proposed rotation would not have a disruptive effect on the child and that it would likely not inhibit the development of a stable living environment, as the Wife testified it would.

The fact that the rotating arrangement was sic been "working" for over a year and that the child has adapted to it is insufficient for the Court to find that it is in his best interests to maintain that arrangement. The mere fact of his adapting does not mean that those circumstances are in his best interests. Ruffridge v. Ruffridge, 687 So.2d 48 (Fla. 1st DCA 1997).

The Court finds that the Husband has failed to prove by competent, substantial evidence the existence of special circumstances to overcome the presumption against rotating custody and his claim for the Court to order rotating custody is DENIED.

After an analysis of the factors set forth in section 61.13(3), Florida Statutes (2007), the trial court determined that the mother should be designated the primary residential parent because she offered greater stability and continuity,¹ and because her work schedule afforded her greater availability to the parties' son in the afternoon hours.²

II. ANALYSIS

On appeal, the father primarily argues that the trial court erred in applying a legal presumption against rotating custody and in further requiring him to prove "exceptional circumstances" in order to overcome that presumption. We find merit with the father's position.

A. No Presumption Against Rotating Custody

In 1997, the Legislature enacted section 61.121, Florida Statutes, which states as follows: "The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child." See Ch. 97-242, § 2, at 4437, Laws of Fla. Prior to that, case law established that rotating custody was presumptively disfavored. Ruffridge v. Ruffridge, 687 So.2d 48, 50 (Fla. 1st DCA 1997) ("The Florida courts have recognized that rotating child custody is presumptively not in the best interest of the children."); Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995) ("Rotating custody... is presumptively not in the best interest of a child."); Caraballo v. Hernandez, 623 So.2d 563 (Fla. 4th DCA 1993) (adhering to rule that rotating custody is presumptively not in the best interest of the child); Wilking v. Reiford, 582 So.2d 717, 719 (Fla. 5th DCA 1991) ("Generally, rotating custody is presumptively not in the best interest of children, but there may be special circumstances which justify rotating physical residence."); Bienvenu v. Bienvenu, 380 So.2d 1164, 1165 (Fla. 3d DCA 1980) ("It is well-settled Florida law that split-custody provisions ... are strongly disfavored and ordinarily may not be sustained."). Courts relied upon an analysis of several factors, often described as "particular circumstances," Bienvenu, 380 So.2d at 1165, or "unique circumstances," Pfeifer v. Pfeifer, 616 So.2d 1190, 1191 (Fla. 4th DCA 1993), in order to determine whether the presumption had been overcome. See Langford, 654 So.2d at 1238 (listing factors that can overcome presumption); Bienvenu, 380 So.2d at 1165 (same).

Subsequent to the Legislature's enactment of section 61.121, courts continued to apply the presumption against rotating custody. See Cooper v. Gress, 854 So.2d 262, 266 (Fla. 1st DCA 2003) ("Nothing in this plain statutory language of section 61.121, Fla. Stat. (1999) indicates the Florida Legislature intended to eliminate the longstanding presumption that rotating custody is not in a minor child's best interest."); Chapman v. Prevatt, 845 So.2d 976, 982 (Fla. 4th DCA 2003) ("Nothing in section 61.121 detracts from the long-standing presumption frowning upon a rotating custody arrangement."); Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001) (holding that presumption required trial court to consider factors which may overcome the presumption); Hosein v. Hosein, 785 So.2d 703, 704 (Fla. 4th DCA 2001) (same); Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999) ("If, by this language, the legislature sought to set aside the presumption against rotating custody, it failed. Nothing in the plain language of the statute suggests that the legislature intended to abolish the presumption."); cf. Bazan v. Gambone, 924 So.2d 952, 956 (Fla. 3d DCA 2006) (noting that "a joint custody agreement ... is generally disfavored when considering initial custody determinations").

Based upon the plain language of the statute, however, we cannot reach the same conclusion as our sister courts. See Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) ("`The starting point for the interpretation of a statute is always its language,' so that `courts must presume that a legislature says in a statute what it means and means in a statute what it says there.'" (quoting Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821, 829-30 (M.D.Fla.2007), aff'd, 540 F.3d 1242 (11th Cir.2008))); Haskins v. City of Ft. Lauderdale, 898 So.2d 1120, 1123 (Fla. 4th DCA 2005) ("A basic canon of statutory interpretation requires us to `presume that the legislature says in a statute what it means and means in a statute what it says there.'" (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))).

In 1997, the Legislature chose to put rotating custody on the same level playing field as other types of custody arrangements—all of which are evaluated through the lens of the best interest of the child. This legislative action changed the...