Fetzer v. Evans, 5D12–2716.
| Decision Date | 11 October 2013 |
| Docket Number | No. 5D12–2716.,5D12–2716. |
| Citation | 123 So.3d 124 |
| Parties | Mistie FETZER, Appellant, v. Kyle T. EVANS, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Sharon L. Stedman, Orlando, for Appellant.
Melanie M. Demps, of McMichen, Cinami & Demps, PLLC, Orlando, for Appellee.
Mistie Fetzer (“Former Wife”) appeals from the final judgment denying her petition to relocate to Indiana with the child born of her marriage to Kyle Evans (“Former Husband”). We affirm.
The parties were married for nearly three years, living in California. One child was born of the marriage. The parties divorced in 2008, and the Superior Court of California for Solano County entered a final judgment of dissolution (“the California judgment”). The California judgment incorporated the parties' marital settlement agreement (“MSA”), which included a time-sharing schedule providing for shared parental responsibility. Specifically, the MSA provided: At the time the parties entered into the MSA, both Former Wife and Former Husband resided in California, but Former Wife anticipated moving to Florida. Accordingly, the MSA provided:
IN THE EVENT that [Former Wife] relocates to Orlando, Florida within the twelve months following the effective date of this agreement, the child custody and visitation order will be modified as follows:
a. The parties shall share joint legal and joint physical custody of [the child]. [Former Wife] shall have primary physical custody of [the child].
.... e. In the event that [Former Husband] relocates to Florida, the parties will resume joint legal and joint (50/50) physical custody of [the child].
Former Wife moved to St. Cloud, Florida, in April 2008. In an effort to be closer to his child, Former Husband followed, moving to Orlando, Florida, in August 2010. On November 20, 2010, without court approval or Former Husband's consent, Former Wife relocated with the child to Indiana. On December 3, 2010, Former Husband filed a petition to domesticate the California judgment. He also filed a verified motion for a temporary injunction to prevent the removal of the child. The trial court denied the motion, but set the matter for a hearing on January 27, 2011.
On January 26, 2011, Former Wife filed an affidavit contesting both personal and subject matter jurisdiction. The next day, she filed a notice of special appearance and a motion to dismiss Former Husband's petition for domestication, again arguing that the Florida court lacked both personal and subject matter jurisdiction.
On February 2, 2011, the trial court entered an order domesticating the California judgment. The order provided that the Florida court would accept full jurisdiction over the parties and subject matter of the California judgment upon receipt of a California order declining jurisdiction. On May 10, 2011, Former Husband filed an order from the Superior Court of California for Solano County declining jurisdiction over the matter.
In the meantime, Former Husband filed a motion for contempt and for return of child. On September 14, 2011, the trial court entered an order on that motion, requiring Former Wife to return the child to Osceola County on or before 11:59 p.m. on October 16, 2011. The trial court set a hearing for October 17 and ordered that the child be brought to the hearing. Although she was served with the order, Former Wife did not return the child to Osceola County by October 16. Instead, she attended the October 17th hearing telephonically. Following the hearing, the trial court entered an order denying Former Wife's motion to dismiss and directing the parties to attend mediation.1
The parties attended mediation on November 15, 2011, which resulted in an impasse. The next day, Former Wife filed a petition to relocate the child pursuant to section 61.13001, Florida Statutes (2011). Former Husband filed a verified objection to the petition.
On April 27, 2012, a non-jury trial on Former Wife's petition to relocate was held, where the following evidence was presented.2 At the time of the trial, the child was eight years old. Former Husband was an aerospace equipment technician for the United States Air Force at the time the parties separated. Before Former Wife moved to Florida, the parties had equal time-sharing with the child. When Former Husband agreed to allow Former Wife to move to Florida with the child, there was a “good chance” that he would be transferred to an Air Force base in Florida. From the time the child moved to Florida in April 2008 until the time Former Husband moved to Florida in August 2010, Former Husband spent all of his leave time visiting the child.
When Former Husband later learned that he would be unable to transfer to Florida, he decided to end his career in the Air Force so that he could be closer to his daughter. Other than his daughter, he had no reason to move to Orlando. He had no family or friends in the area and he took a considerable pay cut by leaving his military career. Former Husband's fiancée also left a career in the Air Force and moved to Florida so that Former Husband could be a part of his child's life. From the time he moved to Orlando in August 2010 until Former Wife and the child moved to Indiana in November 2010, Former Husband had time-sharing with the child almost every week from Thursday after school until Monday morning.
Prior to leaving the Air Force and moving to Florida, Former Husband informed Former Wife of his plan to relocate to Orlando. At no time did Former Wife advise him that she planned to move to Indiana. On November 15, 2010, approximately two and a half months after moving to Florida, Former Husband received an e-mail from Former Wife stating that she was relocating to Indiana within one week because her current husband received an offer for a job to begin on November 22, 2010. Former Wife further stated, ...
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...of the timesharing schedule set forth in the initial judgment, not a modification of the time-sharing schedule. [ Fetzer v. Evans , 123 So. 3d 124 (Fla. 5th DCA 2013) (Final judgment denying former wife’s petition to relocate with child is well-supported by the evidence. No merit to the arg......