Hood v. Hood, BI-284
| Decision Date | 05 December 1985 |
| Docket Number | No. BI-284,BI-284 |
| Citation | 479 So.2d 269,10 Fla. L. Weekly 2685 |
| Parties | 10 Fla. L. Weekly 2685 Suzanne F. HOOD, Appellant, v. Richard L. HOOD, Appellee. |
| Court | Florida District Court of Appeals |
Elaine N. Duggar and Judith A. Loucks of Gardner, Shelfer & Duggar, Tallahassee, for appellant.
Anthony L. Bajoczky of Barrett & Bajoczky, Tallahassee, for appellee.
The issue in this case is whether the trial court erred in ordering the removal of a minor child of the parties from the primary physical custody of appellant to appellee. We reverse and remand with directions.
Appellant was awarded primary custody of the minor child involved in this appeal, Andrew, pursuant to a stipulated settlement agreement incorporated by reference into a final judgment of dissolution entered March 4, 1980. Subsequently, Andrew manifested certain academic difficulties which prevented him from performing up to his predicted level of ability. As a result, the parties entered into an informal agreement modifying Andrew's place of residence during the 1984-1985 school year. The agreement provided that Andrew would begin attending a public school in Chattahoochee. Under the agreement, Andrew would reside with appellee during the school week, returning to appellant on weekends. The arrangement was to discontinue during the "summer vacation" period of 1985, with the parties' previous arrangement to begin anew (under the 1980 separation agreement, Andrew resided with his mother on week days, and his father on weekends).
In August 1985, the parties exchanged a series of letters concerning Andrew's 1985-1986 schooling. On August 3, 1985, appellant wrote a letter to appellee which, among other things, indicated appellant's agreement with appellee that Andrew should continue to attend Chattahoochee Elementary School, at least through the 1985-1986 school year. This letter also made certain requests for additional child support payments, covering both Andrew and their other minor child, Edward. Appellee responded with a letter dated August 20, 1985, which indicated appellee's desire that Andrew continue to attend school in Chattahoochee, and hence reside with appellee, but which rejected appellant's request for increased child support payments. Subsequently, on August 23, 1985, appellant visited the faculty at Robert F. Munroe School, where Andrew had attended school while residing with appellant, and discussed Andrew's academic needs with certain members of that school's faculty. After receiving assurances that Andrew would receive special tutoring in mathematics, as well as permission to allow Andrew to take second grade math, appellant informed appellee that she was enrolling Andrew at Robert F. Munroe instead of allowing him to return to Chattahoochee Elementary School.
Appellee responded by filing a motion for temporary relief on August 27, 1985, which requested enforcement of the parties' purported agreement modifying the residence of Andrew for the 1985-1986 school year. Appellant received notice of a hearing on appellee's motion on August 28, 1985; the hearing was held August 30, 1985. At the hearing, both appellant and appellee testified regarding their understanding of the nature of their agreement. Also introduced into evidence were the various letters exchanged by the parties, as well as a copy of a report prepared by Dr. Robert Morris of Atlanta, Georgia, concerning the source of Andrew's academic problems.
By order dated September 3, 1985, the trial court found that the parties' 1984 agreement to modify Andrew's residence during the school year was intended by the parties to apply to the 1985-1986 school year. The trial court characterized appellant's attempts to discern the presence or absence of "special programs" available for Andrew at Robert F. Munroe as "an eleventh-hour rationale" meant to support her decision to rescind the parties' "agreement." While the trial court specifically found that it would be in Andrew's best educational interest to continue to attend public school at Chattahoochee, and hence reside with appellee during the school year, the court found that the evidence failed to disclose a substantial change in circumstances which would warrant modifying custody from appellant to appellee. 1 The order states the further finding:
It is in the best interest of Andrew that the parties follow through with their previous agreement and permit him to attend third grade at the school he attended last year. While he will necessarily reside with his Father during the school year, primary custody will remain with the Mother.
We...
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