Gibbs v. Gibbs, 96-01231

• Decision Date: 27 November 1996
• Docket Number: No. 96-01231,96-01231
• Citation: 686 So.2d 639
• Parties: 21 Fla. L. Weekly D2513 Karie Lynn GIBBS, Appellant, v. Raymond Lemoyne GIBBS, Appellee.
• Court: Florida District Court of Appeals

Page 639

686 So.2d 639

21 Fla. L. Weekly D2513

Karie Lynn GIBBS, Appellant, v. Raymond Lemoyne GIBBS, Appellee.

No. 96-01231.

District Court of Appeal of Florida,

Second District.

Nov. 27, 1996.

Rehearing Denied Jan. 13, 1997.

John W. Hoft, Jr., Tampa, for Appellant.

Richard S. Pipkin, Sebring, for Appellee.

ALTENBERND, Acting Chief Judge.

Karie Lynn Gibbs appeals an order shifting primary residential custody of her eleven-year-old son to his father, Raymond Lemoyne Gibbs. We reverse because the father failed to meet the extraordinary burden necessary to support a postdissolution change of custody. Standing alone, the fact that a male infant grows into a young man and develops an interest in sports is not the type of extraordinary circumstance that authorizes a court to impose a change of custody upon a mother who received custody of the infant in the final judgment of dissolution.

I. THE FACTS IN THIS CASE

The parties were married for six years and have one son, who was born in October 1984. The 1987 final judgment of dissolution provided for shared parental responsibility with the mother being the custodial parent. The father received liberal visitation rights.

In May 1994, the father filed a petition for modification of the final judgment, seeking to become the custodial parent of his son. To his credit, the father did not allege unfounded accusations against the mother. Instead, he affirmatively alleged: "The petitioner recognizes the great love and affection existing between the mother and minor child, and does not allege the mother to be 'unfit.' " The father primarily claimed that, when the boy was an infant he needed to bond with his mother, and now that he is approaching puberty, he needs his father as a male role model. The child is bright and has progressed well in school under the custodial care of his mother, but now has expressed a desire to be with his father and to be active in sports.

The evidence at the modification hearing established that the father had remarried and the mother had developed a long-term relationship with another man, who is a Florida Highway Patrol trooper. Neither household was perfect in all respects, but both were more than adequate to care for this child. A psychologist who visited both homes testified that she did not see anything "particularly unhealthy" about either home, and did not expect that either parent would abuse or neglect the son in the future.

The trial court entered an order amending the final judgment to shift custody of the son to the father. The order states:

Since entry of the Final Judgment the Court finds, and the husband has shown by a preponderance of the evidence, that there has been a substantial and material change in circumstances; such that it is now in the best interest of the minor child that the primary residency be transferred from the mother to the father.... The minor child has matured, is now eleven years of age, and has consistently and repeatedly expressed a preference to reside with his father. In addition, the minor child shows an increased interest in the type of outdoor and sports activities in which the father engages.

We conclude that the mother is correct in her argument that the father did not establish the extraordinary burden necessary to compel a change of custody in this case. We take this opportunity to explain, however, that the mother has misread Grumney v. Haber, 641 So.2d 906 (Fla. 2d DCA 1994), and incorrectly believes that this district has established a new rule requiring the trial court to find conditions even more stringent than earlier descriptions of the "extraordinary burden" test.

II. THE TWO-PRONG EXTRAORDINARY BURDEN TEST

Over the years, Florida courts have used various phrases to explain the extraordinary burden test. Behind the rhetoric, however, are two consistent requirements. First, the party seeking to modify a custody decree must plead and establish that circumstances have substantially changed since the final judgment. This is required to overcome the legal doctrine of res judicata, and probably reflects a general belief that stability is good for children. Second, the petitioner must establish that the change has such an important impact on the child that the court is justified in imposing a change of custody in the "best interests " of the child. Although the "best interests" aspect of this test involves a consideration of the same general factors that are used to make an initial decision, the trial court must understand that the analysis in a modification proceeding is substantially different from when the initial child custody decision is made in the dissolution because the presumption in favor of the custodial parent in the modification proceeding can only be overcome by satisfying an extraordinary burden.

The following review of the cases describing the extraordinary burden test suggests a change of custody is appropriate when, after a review of all of the factors enumerated in section 61.13(3), Florida Statutes, the trial court finds that a change in custody will so clearly promote or improve the child's well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child's overall best interests. This test involves more than a decision that the petitioning parent's home would be "better" for the child, and requires a determination that there is some significant inadequacy in the care provided by the custodial parent. At this extraordinary level, the trial court may veto a custodial parent's desire to retain custody of the child.

Even before the creation of chapter 61, the courts required a special showing to support a change of custody. For example, in Frazier v. Frazier, 109 Fla. 164, 168, 147 So. 464, 465-66 (1933), the supreme court stated that an initial custody determination should not be "materially amended or changed afterward, unless on altered conditions shown to have arisen since the decree...." Thereafter, in Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA), cert. denied, 166 So.2d 591 (Fla.1964), the court provided a good discussion of the problem and, citing to Frazier, described the second prong of the test as an "essential to the welfare" test:

The rule applied on a petition to modify a decree for custody is that while the welfare of the child or children is of paramount concern, a final decree awarding custody to one parent, being res judicata of the matters involved and known at the time of the decree, should not be modified to change the custody to the other parent except upon materially changed circumstances, or for material facts unknown to the court at time of decree, and then only when it is shown to be essential to the welfare of the child to so order.

* * *

A change of decreed custody is justified in such improved circumstances of the wife when coupled therewith there are circumstances relating to the present custody which are improper and harmful to the child or children so as to make it manifest that a change of custody is essential for their welfare.

160 So.2d at 163-64. See also Klein v. Klein, 204 So.2d 239 (Fla. 3d DCA 1967), cert. denied, 214 So.2d 622 (Fla.1968).

In Smith v. Smith, 212 So.2d 117, 118 (Fla. 2d DCA 1968), this court used the "promote welfare" requirement announced by the supreme court in Bennett v. Bennett, 73 So.2d 274, 278 (Fla.1954):

"And, even if we do determine that there has been a substantial change in conditions, we would be warranted in altering said decree only where it appears that the welfare of the children will be promoted thereby."

The following year, in Hutchins v. Hutchins, 220 So.2d 438 (Fla. 2d DCA), cert. denied, 229 So.2d 869 (Fla.1969), this court stated the test in terms of "detriment":

Such a rule requires, then, in modification of child custody cases, not only that the general welfare of the children will be served by a change of custody, but that it will be detrimental to the children if custody is not changed. Here, the circumstances of all the parties, including the children, had not materially changed to the detriment of the children; and the trial judge merely found that the best interest and welfare of the children would be served by a custodial change. Such a finding was insufficient to warrant modification.

220 So.2d at 439-40 (footnote omitted).

In Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976), this court described a "reduced discretion" test:

In order to legally modify custody, there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a judgment of dissolution as it does in determining custody at the time of the original judgment.

Id. at 527 (citing Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967)). The Robinson court then observed that there was no evidence that the mother was "unfit."

In Garvey v. Garvey, 383 So.2d 1172 (Fla. 2d DCA 1980), our court considered the custody change of a seven-year-old boy in circumstances similar to those in this case. We recognized that the trial court had less discretion in modifying the custody provisions of a final judgment than in making the original determination. Relying on Hutchins and Robinson, the court again explained the test in terms of "detriment" To justify modification, the court must find a substantial change in circumstances since the date of the original judgment and detriment to the children if custody is not changed.

Id. at 1173. As in Robinson, the court noted that there was no evidence that the mother was "unfit." The court also emphasized that the preference of a child, although a factor to be considered, should not control the disposition of custody.

In Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980), the newly created Fifth District used somewhat different language than the earlier Second District ...