Garvie v. Garvie, 94-03011
| Decision Date | 19 July 1995 |
| Docket Number | No. 94-03011,94-03011 |
| Citation | 659 So.2d 394 |
| Parties | 20 Fla. L. Weekly D1689 Janet Lee GARVIE, Appellant, v. Robert Daly GARVIE, Appellee. |
| Court | Florida District Court of Appeals |
Celia Ellen Deifik of Richman, Deifik and Lanier, P.A., Naples, for appellant.
Antonio J. Perez-Benitoa of Faerber, Hissam, Cliff & Perez-Benitoa, Naples, for appellee.
Janet Lee Garvie, the former wife, appeals a final judgment of dissolution of marriage. She argues, and we agree, that the trial court abused its discretion in ordering that the parties have rotating custody of their minor child. Accordingly, we reverse and remand for a new hearing at which the trial court shall determine who is to be the primary residential custodian based on the best interest of the child. We further direct that if the former wife is accorded this designation, the trial court shall revisit the issue of her request to relocate to another state with the child, as well as the issue of child support.
The parties were both high school teachers in Naples, Florida, when they married in 1988, establishing a household with the former wife's two minor children by previous relationships. Their child was born in the fall of that year. The parties separated in October of 1993, and the former wife assumed temporary custody of the child, who was then five years of age, subject to agreed-upon visitation with the former husband. The former wife filed a petition for dissolution of marriage in November of 1993, alleging that parental responsibility should be shared, but that it would be in the child's best interest if his primary residence was with her. The former husband responded with a counter-petition, contending that the child's primary residence should be with him. During the pendency of the proceedings, the former wife filed a motion to relocate with the child to Carlisle, Pennsylvania, where she had been offered the position of assistant professor of education at Dickinson College. She alleged that the move would be appropriate under Mize v. Mize, 621 So.2d 417 (Fla.1993), in which the supreme court directed trial courts to weigh and consider certain factors in deciding whether to allow a custodial parent to relocate with a minor child to another geographical area.
At the final hearing held in June of 1994, the former wife maintained that she should be awarded primary physical residence of the parties' child based on his emotional ties to her and to her children from the prior relationships. The former husband retreated from his earlier position and argued for rotating custody with equal time allotted to both parents. The trial court considered not only the testimony of the parties and their witnesses, but also a psychological evaluation of both parties and the child, as well as the report of a guardian-ad-litem. At the conclusion of the hearing, the trial court found on the record that the former wife's petition to relocate with the child did not satisfy the requirements of Mize, and ordered that if she stayed in Naples, the parties would have joint and equal rotating custody, which issue would be revisited when the child enrolled in school.
In July of 1994, the trial court rendered its final judgment of dissolution of marriage. It reiterated its findings under Mize and directed the former wife not to move the child's place of residence outside of Collier County, Florida. The trial court also determined that it was "in the minor child's best interest that the parties share the primary residential parent designation, and that said sharing should be equal." It went on to provide that should the former wife move from Collier County, the former husband would then become the primary residential parent. Prior to the issuance of the final judgment, the former wife had already accepted the position at Dickinson College and, upon her leaving the county, the former husband assumed primary residential custody of the child.
We begin our analysis of the rotating custody issue by noting the "well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained." Bienvenu v. Bienvenu, 380 So.2d 1164, 1165 (Fla. 3d DCA 1980). We recently reaffirmed this long-standing principle by recognizing that "[r]otating custody ... is presumptively not in the best interest of a child." Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995). We noted in Langford, however, the existence of seven factors that could overcome such a presumption:
(1) that the child was older and mature; (2) that the child was not yet in school; (3) that the parents lived near each other; (4) that the child preferred rotating custody; (5) that rotation would not have...
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Boardman v. Roy, 2D99-1869.
...(citing psychologist's report that joint custody works only when there is good communication between the parents); Garvie v. Garvie, 659 So.2d 394, 396 (Fla. 2d DCA 1995) (court "can reasonably foresee that this mutual antagonism [between the parents], coupled with this inability to communi......
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Lamelas v. Granados, 97-05352.
...peculiar factors in an individual case require otherwise. See Valiente v. Valiente, 689 So.2d 352 (Fla. 2d DCA 1997); Garvie v. Garvie, 659 So.2d 394 (Fla. 2d DCA 1995); Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995). The trial court's expressed reasons for awarding it— the animosity ......
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Valiente v. Valiente, 95-04613
...is strongly disfavored and should be avoided unless peculiar factors in an individual case require otherwise. See Garvie v. Garvie, 659 So.2d 394 (Fla. 2d DCA 1995), and Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995); compare Quinn v. Settel, 682 So.2d 617 (Fla. 3d DCA 1996) (affirmin......