Costa v. Costa, 82-1022

• Decision Date: 30 March 1983
• Docket Number: No. 82-1022,82-1022
• Citation: 429 So.2d 1249
• Parties: Douglas Edward COSTA, Appellant, v. Mary Ann COSTA, Appellee.
• Court: Florida District Court of Appeals

Page 1249

429 So.2d 1249

Douglas Edward COSTA, Appellant, v. Mary Ann COSTA, Appellee.

No. 82-1022.

District Court of Appeal of Florida Fourth District.

March 30, 1983.

Rehearing Denied May 13, 1983.

Nancy Little Hoffman, Fort Lauderdale, and Stephen M. Bell, Plantation, for appellant.

T. Paul Hodge, Fort Lauderdale, for appellee.

GLICKSTEIN, Judge.

This is an appeal from an order, approving a post-judgment report of a general master in Broward County, and denying appellant's exceptions thereto. The report struck the restriction in the final judgment upon the former wife's right to remove the parties' two minor children (ages 7 and 9) from Broward and Palm Beach Counties. We reverse and remand.

The senior Broward County Circuit judge, then retired and on special assignment, who entered the final judgment in March, 1981, informed the parties at the close of the proceedings in February, 1981, as follows:

THE COURT: I think it would simplify things in this case if I would award the children to the Husband, but I can't do it. These are young girls, and I just can't award custody to the father.

I kind of agree with the psychiatrist in this respect, but young girls should be with the mother, and therefore we'll award the main custody to the mother.

I will provide that they have--that the father have generous visitation, to consist of every other weekend, and one afternoon during the week. He should be able to pick the children up whenever he's able to pick them up after work, when they are available.

He should have the responsibility to see that they do their homework on that night. Just one day a week he picks them up. If he picks them up on Friday, and he has them on Sunday, it should be Tuesday or Wednesday. He can pick the day of his choice. That is, he will have that day every week, but he will have the responsibility of providing the evening meal, and responsibility of seeing that they do their homework on that day.

....

THE COURT: I will order her not to remove the children from the South Florida area without prior notification to the father, or without permission of the Court or his permission, if he agrees with it, whatever the circumstances. I mean, permanently move. I'm not talking about a visit.

During the summer vacation, during the time that you or she takes them, you can take them anywhere, as long as you bring them back. You should not remove the children from Broward County. I guess sometimes you have lived in Palm Beach County. I'll just say Broward to Palm Beach County. Do not move the residence of the children from Broward or Palm Beach County without the Court's permission, or the permission of the father, if you can agree on it.

If you have some reason for moving them back to Philadelphia or New Jersey, then you can come back to court, and the Court will have to make that determination, unless he disagrees with it.

The former wife's attorney announced at that time that he had no objection to the restriction on the right of his client to remove the children from the two county area.

Shortly after entry of final judgment each of the parties married another. In October, 1981, both filed petitions--the wife to remove the geographical restriction upon her custody, and the husband--to obtain custody.

In November, 1981, the former wife's petition was heard by the general master. She was the only witness and her very brief testimony of less than two pages of transcript established only that she had married Joseph Lahan, who had a job opportunity in Pennsylvania; that he could find a job in Broward County but not as lucrative as "up north"; and that she would be able to do much better for the children financially "up there." The former husband's motion for involuntary dismissal was denied. In view of the significance of the impact of any decision upon the two children and their relationship with their father, coupled with the concern and consideration given this matter by the trial judge who entered the final judgment, the motion should have been granted on this barren record. There was a genuine lack of substantial competent evidence that a material change in circumstances had occurred or that the modification of the restriction affecting custody was in the best interest of the children--both of which factors had to be shown in order to establish a prima facie case. See Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla.1980).

Subsequently, in February, 1982, the general master heard the former husband's evidence in defense to the former wife's petition; and it overwhelmingly established that the removal of the restriction was contrary to the best interest of the children and confirmed the absence of any material change in circumstances to justify such removal. There was no rebuttal evidence by the former wife.

Reduced to its essence, the former wife's case appeared to be a desire to leave south Florida because she had remarried; and her new husband could earn $2.00 more per hour, or $4,000 per year, doing the same thing in Pennsylvania for which he was employed in Broward County; namely, as a respiratory therapist. The former wife had not been awarded rehabilitative alimony in the final judgment as she was employed as a quality assurance analyst in a Broward County hospital. She had no prospective employment arranged in Pennsylvania and there was no testimony as to what her earnings would be in that state. Accordingly, there was nothing in the record to show any financial benefit to the children by the contemplated move, the new husband having no obligation to them.

The former husband's case established that he was a school teacher, earning only $18,400 per year, thus making it prohibitive to visit his children with any regularity should they be removed to Pennsylvania. He had lived in south Florida since childhood. Both of the children were born in Florida and visited with their paternal grandparents, who are residents of this state (as is the maternal grandmother). The husband faithfully maintained the rights of visitation which the final judgment provided. Dr. Singer, a clinical psychologist, testified that to remove the children from proximity to their father was contrary to their best interest. Dr. Caddy, also a clinical psychologist, testified on deposition that the children's best interest lay in their being in close proximity to both parents.

In light of all the foregoing, the trial court should have granted the former husband's exceptions to the general master's report and disapproved the latter. The happiness and well being of these small children had been traumatized and wrecked in part by the dissolution. As is generally the case, the children were the only real victims of their parents' falling out of love with each other and into love with others. We find a certain irony in the fact that the two adults who created this unhappiness had counsel while the real victims were unrepresented. Removal of the children would only exacerbate the children's trauma; and the regular visitations with their father had to mitigate the harm already done. Both of these parents have a fundamental, continual and permanent obligation to these children that can only be satisfied by the love and attention the close proximity of the two of them can provide at this time. The court can best serve the children's interest by making it possible that this occurs; thus, the wisdom of the restriction in the final judgment--which is supported by substantial authority. See Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982); Foss v. Foss, 392 So.2d 606 (Fla. 3d DCA 1981); Scheiner v. Scheiner, 336 So.2d 406 (Fla. 3d DCA 1976); Brandon v. Faulk, 287 So.2d 714 (Fla. 1st DCA 1974) and McManus v. McManus, 238 So.2d 473 (Fla. 2d DCA 1970).

After the decision of the trial court in this case, the Florida Legislature enacted Chapter 82-96, Laws of Florida (1982), amending sections 61.13(2)(b) and (3), Florida Statutes (1981). In it the law makers declared:

It is the public policy of this state to assure each minor child frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child-rearing.

....

2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the court determines that shared parental responsibility would be detrimental to the child, the court may order sole parental responsibility.

a. "Shared parental responsibility" means that both parents retain full parental rights and responsibilities with respect to their child and requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interests of the child. When it appears to the court to be in the best interests of the child, the court may order or the parties may agree how any such responsibility will be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family and/or in the best interests of the child.

The declaration of such public policy and the use of the term "responsibility" as opposed to "custody" is aspirational. It would be society's greatest reward--tangibly and otherwise--were the future adult inhabitants of this state able to look back to the 1980's and reflect how their predecessors finally came to recognize the priority to be given the well being of children. Such...