Ginder v. Ginder, 88-591

• Decision Date: 28 December 1988
• Docket Number: No. 88-591,88-591
• Citation: 14 Fla. L. Weekly 49,536 So.2d 1155
• Parties: 14 Fla. L. Weekly 49 Carrie Dianne GINDER, wife, Appellant, v. Carl L. GINDER, husband, Appellee.
• Court: Florida District Court of Appeals

Page 1155

536 So.2d 1155

14 Fla. L. Weekly 49

Carrie Dianne GINDER, wife, Appellant, v. Carl L. GINDER, husband, Appellee.

No. 88-591.

District Court of Appeal of Florida,

First District.

Dec. 28, 1988.

Larry L. Bryan, Jacksonville Beach, for appellant.

Harry B. Mahon, of Mahon, Farley & McCaulie, Jacksonville, for appellee.

PER CURIAM.

The former wife appeals an order which provided that she "shall reside in Jacksonville ... or the Court will enter its order changing custody" of the parties' children to the former husband. We vacate the pertinent portion of the order and remand to permit entry of a new order on the disputed issues.

The Ginders were divorced by final judgment rendered September 17, 1986. Primary residential responsibility for the couple's two children was placed with the former wife in Guantanamo Bay, Cuba, where the family had resided since 1985. ¹ The judgment, however, enjoined her from "accepting or contracting for employment in any place other than Jacksonville, Florida, subsequent to August, 1987 without a prior order of this court." In May 1987 the former wife determined that if she were to return to Jacksonville she would have to take a pay decrease in her government service (GS) job. On the other hand, if she were to stay in Cuba she would remain at her current GS-9 pay level and as of April 19, 1989 she would be promoted to a GS-11 pay level. She signed a contract to stay in Cuba in June 1987.

On August 31, 1987 the former wife filed a motion to modify requesting that the court allow her to remain with the children in Cuba in light of these circumstances. The former husband filed motions for contempt and to modify; the former wife filed an answer; and a hearing was held. ²

We begin by finding that the former husband failed to carry the required burden for implementing a custody change. "In Zediker v. Zediker, 444 So.2d 1034 (Fla. 1st DCA 1984), this court held that a noncustodial parent seeking to modify child custody carries the extraordinary burden of showing that changes occurring after the entry of the original custody decree represent a substantial change in circumstances and that the welfare of the children would be promoted by a change in custody." Ours v. Ours, 515 So.2d 281, 282 (Fla. 1st DCA 1987). The record is well short of establishing these criteria for a custody change.

By the February 4, 1988 order now appealed, the court extended through June 30, 1988, the former wife's "right to continue to reside in Cuba," ³ and required that after that time "the former Wife shall reside in Jacksonville, Duval County, Florida, or the Court will enter its order changing custody of the minor children to the father."

A "court cannot change residential custody purely as a method of punishment." Breeding v. Breeding, 515 So.2d 374, 375 (Fla. 4th DCA 1987). "Changing the custody of a child is not a device to be used to obtain compliance with other court orders." Crippen v. Crippen, 508 So.2d 1339, 1340 (Fla. 4th DCA 1987) (quoting Agudo v. Agudo, 411 So.2d 249, 251 n. 4 (Fla. 3d DCA 1982). The February 1988 order mandates issuance of a change of custody order should the former wife fail to comply with the order's requirement that she return to Jacksonville with the children. We find that such a change of custody order would impose an impermissible punishment on the former wife.

In Breeding the court reversed a custody change based on the former wife's contempt, holding that the proper course in the event of contempt was an arrest and hearing. In Crippen the court reversed a custody change that was based on the mother's frustration of the father's visitation rights. In Agudo the court reversed the temporary custody change rendered for the reason that a visitation dispute between the parties could not be settled. Though somewhat different on the facts, we find that these cases compel vacation of the contingent custody change portion of the subject order.

The former husband argues that the order appealed merely presents the wife with a choice on how to comply with the original, final judgment, i.e., keep the job and stay in Cuba without the children or return to Jacksonville with the children. However, under the foregoing analysis, if the former wife opted for neither of these choices and elected to remain in Cuba with the children, the court was not free to issue a change of custody order without evidence that a substantial or material change in the circumstances of the parties has taken place and that the best interests of the children would be served by such a change. E.g., Crippen, 508 So.2d at 1340. No such changes are evident from the record. We therefore vacate that portion of the February 4, 1988 order that states: "or the Court will enter its order changing custody of the minor children to the father."

As to the requirement in the order that "[c]ommencing July 1, 1988, the former wife shall reside in Jacksonville," and extending through June 30, 1988, her "right to continue to reside in Cuba," the former wife asserts only that the court erred by not granting her motion to modify. Her assertion necessarily raises the issue of whether the court's requiring her to relocate to Jacksonville on July 1 was error, because her motion prays for permission to remain in Cuba with the children through August 1989 which permission the court did not grant. The court's affirmative requirement of relocation does not escape the former wife's premise of error just because it was not couched in terms of denial. The relocation requirement is, in effect, a denial of part of the motion to modify. The former wife appeals this denial.

Undoubtedly, the purpose of the relocation requirement was to ensure increased accessibility of the children to their father and vice-versa. Section 61.13(2)(b)1, Florida Statutes (1987), states in part: "It is the public policy of this state to assure that each minor child has frequent and...