DeCamp v. Hein

• Decision Date: 29 March 1989
• Docket Number: No. 88-0205,88-0205
• Citation: 14 Fla. L. Weekly 794,541 So.2d 708
• Parties: 14 Fla. L. Weekly 794 Cynthia Louise DeCAMP, f/k/a Cynthia Louise Kern, f/k/a Cynthia Louise Hein, Appellant, v. Darwin Uhle HEIN, Appellee.
• Court: Florida District Court of Appeals

Page 708

541 So.2d 708

14 Fla. L. Weekly 794

Cynthia Louise DeCAMP, f/k/a Cynthia Louise Kern, f/k/a Cynthia Louise Hein, Appellant, v. Darwin Uhle HEIN, Appellee.

No. 88-0205.

District Court of Appeal of Florida Fourth District.

March 29, 1989.

Rehearing Denied May 11, 1989.

Cynthia Louise DeCamp, Linwood, N.J., pro se.

Charles D. Barnard, Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING

LETTS, Judge.

We grant the petition for rehearing, filed by the wife pro se, and set aside the per curiam affirmance and its accompanying special concurrence. Instead, we substitute the opinion that follows:

In a dissolution proceeding, the final judgment provided for the shared parental responsibility of two infant females aged one and three. It also set forth that the This tumultuous six-year Florida marriage ended in separation when the twenty-eight year old wife ¹ returned with the infants to her birthplace in New Jersey ² where her mother, four sisters, a brother and innumerable aunts, uncles and fifteen cousins all live. Thereafter, the wife filed a petition for dissolution in Florida and the ensuing order for temporary relief provided for the husband to have possession of the children for a thirty-day Florida visit, at the conclusion of which "the husband shall pay for the expenses of returning the children to the wife's current residence which is New Jersey." ³ The wife waived alimony. Over eight months later, when the second amended final judgment was entered, the court, though it found it in the best interests of the children that their primary residence be with the wife, also found that their best interests would be served by requiring the wife to reside in Broward, Dade or Palm Beach County, Florida. To achieve that end, the trial judge granted "temporary custody" of the children to the husband until such time as the wife relocated to one of those three Florida counties. We believe the trier of fact was in error for several reasons, as hereinafter set forth.

mother's home would constitute the primary residence for the two infants, but gave temporary custody of the children to the husband until the wife relocated her residence to the "Tri-County area" in Florida. We reverse.

First, the facts of the case at bar go beyond the classic dilemma of whether the custodial parent can move out of state. In fact, the wife's movements were drastically restricted within the state. Moreover, the earlier temporary order recognized that she had already moved and no protest or comment was made as to that order. On the contrary, the temporary order provided that the children be returned to New Jersey. Meanwhile, back in her birthplace, a small town in New Jersey, the wife had found an apartment, a job and had renewed old ties among friends and family. Over twelve months after her return to New Jersey and eight months after the temporary hearing, she was commanded by the final judgment to return to one of only three counties in Florida or give up her hard fought battle to be named as the custodial parent. Under the circumstances, this placed an unreasonable burden on her and was, in effect, a punishment. See Crippen v. Crippen, 508 So.2d 1339 (Fla. 4th DCA 1987); and Ginder v. Ginder, 536 So.2d 1155, (Fla. 1st DCA 1988).

Second, the trial judge's conclusion, and his reasons therefor, are inconsistent. He flatly stated that the wife "has got to move to New Jersey. She has no support down here." Yet he also stated that, "the children do not leave the State of Florida.... They are Florida children and they're not going up [to] New Jersey." The recognition that the wife must go to New Jersey, yet the children must stay in Florida, makes his supposed choice of her as the primary custodial parent an illusory one. We conclude under these circumstances that the trial judge's two pronouncements were incompatible.

Third, passing next to the question of whether the husband or the wife should be preferred as the custodial parent of two female children aged one and three, we note the provision in section 61.13(2)(b)(1) that "the father of the child shall be given the same consideration as the mother in determining the primary residence of the child irrespective of the age of the child." (emphasis supplied) This statutory language at first blush appears to abolish the tender years doctrine, as indeed the Fifth District believes it has. See Kerr v. Kerr, 486 So.2d 708 (Fla. 5th DCA 1986). Yet, this very same section also provides that the equal rights provision only applies "after Fourth, and perhaps most importantly, we address the vexing problem of moving out of state and what havoc that wreaks on the visitation rights of the noncustodial parent. Prior to the adoption of the 1971 Dissolution of Marriage Statute, there was little question that the custodial parent could move away from the jurisdiction of the court which granted the dissolution. Even after the enactment of Chapter 61, things continued on, more or less as they had before, until the bombshell of Giachetti v. Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982). Much has been written in criticism of Giachetti, ⁴ and while its actual language has been somewhat distorted, it is widely quoted as authority for the proposition that the custodial parent cannot move out of state, because to do so "effectively terminate[s] the natural father's visitation." However, the Giachetti court opined that such a move would be permitted if it could be shown to be in the best interests of the children. The problem with that deceptively simple predicate, which we have emphasized, was poignantly expressed by Judge Anstead when he wrote: "Who among us has the wisdom to know ... what decision will be in the best interests of the children." Barnhill v. Barnhill, 353 So.2d 923, 925 (Fla. 4th DCA 1978).

                considering all relevant facts."  (emphasis supplied) Relevant facts should obviously include, at least in part, some consideration of the tender years doctrine.  It is true that the doctrine can no longer be dispositive because the 1983 amendment to the statute added the "irrespective of age" language;  however, we do not believe the doctrine has been totally abolished.  For example, a six-month-old baby being nursed by her mother should obviously be in her mother's custody, unless the judge found her unfit.  In the case at bar, there is no mention of whether the one-year-old was being nursed by the mother.  Nonetheless, our version of common sense suggests that, under the facts of this particular case, the one-year-old female infant and her three-year-old sister preferably should reside with the mother.  In Brown v. Brown, 409 So.2d 1133 (Fla. 4th DCA 1982), Judge Hurley quoted with approval the testimony of a psychiatrist who opined:  "From zero until four and a half ... the essential person in that child's life is the mother....  I maintain it's extremely important for [a] three year old little girl to be with her mother."   True, that case was decided before the 1983 amendment to the statute, as was the seminal case of Dinkle v. Dinkle, 322 So.2d 22 (Fla.1975), yet the psychiatrist's pronouncement in Brown would still, in our opinion, prove to be a relevant factor in deciding the primary residence of these two baby girls.  The reader may well study the preceding deathless prose and remark of its author:  "What is he talking about?   The trial court did make the wife the primary custodial parent."   However, as we have already noted, that was largely an illusory award.  The trial court, having agreed that the wife had to permanently return to New Jersey, yet having given "custody" to the husband until she relocated back to Florida, for all practical purposes made the husband the custodial parent.  In fact, the record reflects that the husband has had both children living with him ever since the final hearing
                

The husband is of the belief that it will serve the best interests of the children to be with him because he has more money, a bigger house with a pool near a school. However, while the trial judge wrote and spoke generally about the best interests of the children, it is clear that his decision to prohibit relocation was almost exclusively limited to the cost of air fares and the possibility that the wife, once in New Jersey, would thumb her nose at the Florida court and seek relief in her newfound jurisdiction.

Searching around for something to guide us in resolving the dilemma of to-move-or- The New Jersey relocation test, which we here adopt, is found in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27, aff'd, 144 N.J.Super 352, 365 A.2d 716 (1976): ⁶

not-to-move, ⁵ we read with much approval Judge Schwartz' decision in Matilla v. Matilla, 474 So.2d 306 (Fla. 3d DCA 1985) wherein, and ironically enough, the Third District adopted the rationale of none other than a court in New Jersey to whence the wife sub judice has now returned.

1. The likelihood of the move improving the general quality of life for both the primary residential spouse and the children.

2. The integrity of the motives for seeking the move to insure it is not done for the express purpose of defeating visitation.

3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. That the substitute visitation will be adequate to foster a continuing...