Dobbins v. Dobbins

• Decision Date: 21 August 1991
• Docket Number: No. 90-2843,90-2843
• Citation: 584 So.2d 1113
• Parties: Chris Ellen DOBBINS, Appellant, v. Daniel Wayne DOBBINS, Appellee. 584 So.2d 1113, 16 Fla. L. Week. D2240
• Court: Florida District Court of Appeals

Page 1113

584 So.2d 1113

Chris Ellen DOBBINS, Appellant, v. Daniel Wayne DOBBINS, Appellee.

No. 90-2843.

584 So.2d 1113, 16 Fla. L. Week. D2240

District Court of Appeal of Florida,

First District.

Aug. 21, 1991.

Rehearing Denied Sept. 24, 1991.

Thomas L. Powell, Douglass, Cooper, Coppins & Powell, Tallahassee, and Warren K. Anderson, Jacksonville, for appellant.

Cathi C. Wilkinson and Carl L. Pennington, Jr., Pennington, Wilkinson, Dunlap, Bateman & Camp, P.A., Tallahassee, for appellee.

PER CURIAM.

The former wife (W) appeals an order on her petition to modify custody which places the primary residential custody of the parties' two minor children with the former husband (H), terminates all child support payments and restricts the former wife's visitation with the children. We reverse.

Modification of custody is proper only if there is competent substantial evidence showing a substantial or material change in the circumstances of the parties since the entry of the original order and that the welfare of the children would be promoted by a modification of the custody provision. Sanchez v. Sanchez, 575 So.2d 744 (Fla. 5th DCA 1991); Poole v. Savage, 561 So.2d 360 (Fla. 1st DCA), review denied, 576 So.2d 291 (Fla.1990). Here neither part of this two part requirement has been satisfied.

H and W were divorced by Final Judgment of Dissolution of Marriage rendered Sept. 3, 1987. H and W have two daughters who are now 8 and 6 years old. H and W initially agreed to equally share the physical residence of the children, alternating on a 3-day basis. W remarried in July 1988, and her new husband is an attorney practicing and residing in Jacksonville. W, however, continued to live in Tallahassee in the former marital home. In 1989 H and W reached a new agreement to alternate custody of the children on a weekly basis. In July 1990, W filed a Petition for Modification seeking primary physical custody of the children. H filed a counter-petition seeking that primary physical custody of the children be placed with him. The matter proceeded to final hearing August 16-20, 1990, at which 22 witnesses testified. Following the hearing the trial court entered an order modifying custody and placing the primary physical custody of the children with H during the school year and with W during the summer, Thanksgiving, Easter, and one-half of Christmas. The noncustodial parent was afforded visitation one weekend per month. In support of this modification the court found that there had been a substantial change of circumstances since the parties agreed to alternate custody on a weekly basis in that W had "engaged in a deliberate pattern of alienation of the children" from H, that W was contemplating a relocation from Tallahassee to Jacksonville, and that the children were being subjected to "anxiety, uncertainty and frustration as a result of the current weekly custody arrangement." Of these findings, only the third finds any support in the extensive evidence below. Further, the court's drastic reduction in the amount of contact W is to have with her daughters is contrary to all of the expert testimony adduced below and constitutes an abuse of discretion. Finally, it is apparent from the record that the trial court's ordered modification was made not on the grounds of the best interests of the children but with regard to what the court perceived as the best interests of the former husband.

The court's finding that W had engaged in a deliberate pattern of alienation was supported by four specific incidents, only one of which can properly be ascribed to deliberate volitional acts on the part of W: her allowing the children to call their new stepfather "daddy." The other three incidents cited by the court either concern independent acts of the children for which W was not shown to be responsible in any way, or are unsupported by the record.

As its second basis for finding a substantial change of circumstances the trial court cites the fact that W "is contemplating a relocation to Jacksonville, Florida, where her current husband resides and practices law." This statement is accurate in that W uncontrovertedly had expressed her preference for moving to Jacksonville permanently. But the evidence adduced at trial was uncontroverted that W did not plan to move to Jacksonville unless she was awarded primary residential custody of the children. Further, both W and her new husband testified there were no current plans for such a move, and other than the purchase of a lot in Sawgrass, there was no evidence a move was imminent. W was still residing in the former marital home and there was no evidence it had been placed on the market. She was still employed in her state job in Tallahassee and there was no evidence of any job hunting in Jacksonville. Therefore, regardless of W's understandable preference for living in Jacksonville, there was no indication an actual relocation there was pending.

A custodial parent's freedom to move is qualified by the special obligation of custody, the state's interest in protecting the best interests of the child, and by the competing interests of the noncustodial parent. Cole v. Cole, 530 So.2d 467 (Fla. 5th DCA 1988). Therefore, in some cases, one parent's relocation has been found to constitute a substantial change warranting modification. However, in these cases, the parent had either already made the move, or had made definite plans to do so. See e.g., Cole v. Cole, 530 So.2d 467 (Fla. 5th DCA 1988); Jones v. Vrba, 513 So.2d 1080 (Fla. 5th DCA 1987); Adams v. Adams, 477 So.2d 16 (Fla. 1st DCA 1985). Even when such a move is planned or made the move may not be found to be a substantial change of circumstances warranting modification. Gaber v. Gaber, 536 So.2d 381 (Fla. 3d DCA 1989); Delgado v. Silvarrey, 528 So.2d 1358 (Fla. 3d DCA 1988); Nissen v. Murphy, 528 So.2d 502 (Fla. 2d DCA 1988); Shelley v. Shelley, 480 So.2d 166 (Fla. 1st DCA 1985), review denied, 491 So.2d 280 (Fla.1986). A move may constitute a substantial change of circumstances if the distance is far and the visitation of the other parent will be subject to significant interference as a result. Jones v. Vrba, 513 So.2d 1080 (Fla. 5th DCA 1987).

Here W's "contemplated" move is not out-of-state and is neither an accomplished fact nor an imminent possibility. It is at best a desire on her part, expressly conditioned upon the court's disposition of the...