Keitel v. Keitel, No. 97-0748

• Decision Date: 27 January 1999
• Docket Number: No. 97-0748, No. 98-1748., No. 97-1112
• Citation: 724 So.2d 1255
• Parties: Frederick J. KEITEL, III, Appellant, v. Diane De La Begassiere KEITEL, Appellee.
• Court: Florida District Court of Appeals

724 So.2d 1255

Frederick J. KEITEL, III, Appellant, v. Diane De La Begassiere KEITEL, Appellee.

Nos. 97-0748, 97-1112, 98-1748.

District Court of Appeal of Florida, Fourth District.

January 27, 1999.

Cynthia L. Greene of Law Offices of Cynthia L. Greene, P.A., Miami, and Frederick J. Keitel, III of Law Offices of Keitel & Keitel, P.A., Palm Beach, for appellant.

Joel M. Weissman, Stephanie A. Russo and Denise S. Calegan of Weissman & Yaffa, P.A., West Palm Beach, for appellee.

PER CURIAM.

We sua sponte consolidate case number 98-1748 with consolidated appeals 97-0748 and 97-1112. These appeals arise out of the child custody and visitation provisions of the final judgment of dissolution and two related post judgment orders.¹ In case number 97-0748, Frederick J. Keitel, III ("appellant") appeals from the final judgment and contends that the trial court erred when it awarded primary residential custody to Diane De La Begassiere Keitel ("appellee") and provided for visitation based on a standard schedule. In case number 97-1112, he appeals a post-trial order entered on rehearing in which the trial court vacated the relocation paragraph from the final judgment. In case number 97-1748, a non-final appeal, he appeals the trial court's order requiring him to pick up and deliver the child at appellee's residence in New York. We affirm.

The parties were married on November 28, 1992, and separated in July, 1995. They have one child of the marriage, born on August 12, 1995. At the final hearing, appellant asked the court to provide in its final judgment that the child not be removed from the county except by court order. Appellee objected because the issue was not pled nor litigated. The court stated, "She cannot move out of the tri-county area without court permission, that's all I am saying."

In the final judgment, the trial court awarded custody of the parties' child to appellee. The court found that she "is more likely to mature in her parenting to the benefit of [the child] than the father" and ordered that she be the primary residential parent. The trial court granted appellant visitation as provided in a schedule attached to the judgment. The visitation schedule, if the parties could not agree otherwise, provided in part,

LOCATION OF PICK UP AND DROP OFF:

Unless agreed to by the parties, pick up and return of the child shall be at the custodial parent's home. However, once [the child] attends school he may be picked up and returned on any visitation date (where school is in session) at the school facility. The time of pick up and delivery shall be altered to reasonably relate to the child's school requirements and activities.

The court also included a relocation provision in the final judgment:

By agreement of the parties reached at trial, the primary residential parent shall not relocate [the child]'s permanent residence outside of Palm Beach, Martin, or Broward Counties without agreement of the parties or Court Order. A request for any permanent relocation shall be reviewed by the Court in accordance with the law in effect at that time.

Appellee moved for rehearing and argued that the final judgment misstated the stipulation of the parties as to the visitation schedule, relocation, religion, and school. On March 12, 1997, the trial court granted appellee's motion and vacated the relocation paragraph from the final judgment.

On May 8, 1998, the trial court held another hearing on various visitation motions and ordered as follows:

1. That the Former Husband shall continue to have the right to visit with his son through and including May 14, 1998 at 8:30 a.m.

2. The Former Husband shall return the child to the Former Wife, at her address in New York City, on or before 8:30 a.m. on May 14, 1998.

3. That the Former Wife shall not unilaterally deny the Former Husband the right to visitation pursuant to the schedule that was previously adopted by the court order under any pretext, including but not limited to the fact that she has decided to visit family or friends in some other part of the country.... Specifically, under the terms of this Court's previous order, the Court wants both parties to understand that the pickup and deliver[y] of the child shall occur at the Wife's residence in New York City pending further order of this Court....

Appellant first argues that the trial court abused its discretion when it awarded primary residential custody to appellee. "The party who seeks to challenge a trial court's initial custody decision in a contested custody case carries a heavy burden. Where the testimony is in conflict, the trial court must resolve all factual disputes." Keesee v. Keesee, 675 So.2d 655, 656 (Fla. 5th DCA 1996). The record must be read in the light most favorable to the prevailing party, and the trial court must disregard any conflicting evidence counter to her position. Id. We hold that the record contains competent, substantial evidence supporting the trial court's decision to award primary residential custody to appellee. Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th DCA 1989).

Next, appellant argues that the trial court erred by providing a "standard visitation schedule." "[I]n matters of child visitation, the trial court is not bound by any stipulation or agreement. Moreover, the creation of a visitation schedule is within the discretion of the trial court." Lewis v. Lewis, 665 So.2d 322, 324 (Fla. 4th DCA 1995) (citations omitted); see also Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992). The trial court may properly impose a standard visitation order rather than a...