Giachetti v. Giachetti, 81-818

• Decision Date: 30 June 1982
• Docket Number: No. 81-818,81-818
• Citation: 416 So.2d 27
• Parties: Pamela GIACHETTI, Appellant, v. Robin GIACHETTI, Appellee.
• Court: Florida District Court of Appeals

Page 27

416 So.2d 27

Pamela GIACHETTI, Appellant, v. Robin GIACHETTI, Appellee.

No. 81-818.

District Court of Appeal of Florida Fifth District.

June 30, 1982.

Ford & Minkoff, P.A., Tavares, for appellant.

Richard H. Langley, Clermont, for appellee.

ORFINGER, Judge.

The trial court found that appellant's proposed removal of her children from Florida to Alaska would totally impair appellee's rights of visitation with his children, and prohibited removal of the children from the state. The mother appeals. We affirm.

Appellant/wife was granted custody of the parties' two minor daughters, now eight and five years old, by a 1977 divorce decree. Appellant has since remarried, and has a third child, age 2. Appellant's new husband is a carpenter, and in April of 1981, he moved to Alaska because of what he considered to be better employment opportunities. Both appellant and her new husband have relatives in Alaska. Appellant planned to join her husband when the school year ended.

Upon learning of the intended move, the former husband filed a petition for modification of the judgment of dissolution, seeking a change of custody to himself, and requesting an order prohibiting appellant from removing the children from this state. After hearing evidence, the trial court found that the non-custodial parent (appellee) had maintained a good father/child relationship with his minor children; that to allow the wife to take the children to Alaska would "totally eradicate and make any further semblence of a father/child relationship impossible"; that to allow the wife to remove the children to Alaska would be completely contrary to the provision of the final judgment which provides that:

"The parties shall use all reasonable efforts to maintain free access and to create a feeling of affection between themselves and the minor children. Neither should do anything to hamper the natural development of the children's love and respect to the other party."

and that there was no evidence that such move would be in the best interest of the minor children. Finding also that there was no evidence that a change of custody would be in the children's best interest, he denied the father's petition for change of custody, but prohibited the removal of the children's residence from the state without an order of the court.

Appellant contends that the trial court improperly modified the final judgment when it prohibited the removal of the children from the state, because no pleadings requested such modification, and, appellant says, the trial court has no authority to modify a final judgment unless the issue of modification is presented to it in an appropriate proceeding and each party is given an opportunity to be heard on the issue, relying on Cortina v. Cortina, 98 So.2d 334 (Fla.1957). However, we do not view the requirement that the children remain in the state as a "modification" of the original judgment.

Inherent in the visitation privileges granted to a non-custodial spouse by a judgment of dissolution is a command to the custodial spouse that such visitation privileges should not be unreasonably hampered, hindered or destroyed. What circumstances or conditions unreasonably hamper or destroy visitation privileges will vary from case to case, and because, by the very nature of the subject matter there are very few absolutes, the trial court must be allowed wide latitude in determining how the visitation rights of the parties are to be enforced. ¹

Here, while the final judgment did not explicitly prohibit a change of residence, it did require that the parties maintain free access with the children and that nothing be done to hamper the natural...