Kilgore v. Kilgore, 97-4570.
| Decision Date | 28 December 1998 |
| Docket Number | No. 97-4570.,97-4570. |
| Citation | 729 So.2d 402 |
| Parties | Lisa KILGORE, n/k/a Lisa Holton, Appellant, v. John D. KILGORE, Appellee. |
| Court | Florida District Court of Appeals |
Gary Baker, Callahan, for Appellant.
Alexa K. Alvarez of Alvarez & Page, P.A., Fernandina Beach, for Appellee.
Appellant, the former wife in this domestic relations proceeding, contests an order modifying the final judgment of dissolution of marriage. The former wife maintains the circuit court erred in modifying the final judgment without making a sufficient finding of a substantial and material change in circumstances, and the court erred in changing the primary residential custody of the parties' minor children from her to the former husband. We reverse.
The final judgment of dissolution of the parties' marriage was rendered January 18, 1990. The final judgment provided for shared parental responsibility, and placed primary residential custody of the children with their mother. The former husband was directed to pay child support in the total amount of $100.00 per week ($50.00 per week per child).
On November 16, 1992, the circuit court entered an order on the parties' competing motions for modification, and on the wife's motion for contempt predicated on the former husband's delinquent child support payments. The order provided that both parties were prohibited from smoking in the presence of the children, and prohibited the parties from permitting others to do so. The court further ordered that, in the event the husband's mother was unable to provide day care for the children, the husband was to pay for a licensed day care center to provide day care services, with the husband to be solely responsible for payment of the day care until such time as the wife was able to secure employment. The former husband's motion for modification was denied, as was the former wife's motion for contempt.
Thereafter, the former wife filed a supplemental petition to increase child support. On August 5, 1996, the former husband filed a supplemental petition for modification of child custody. The former husband alleged a substantial change in circumstances, including an increase in the amount of time the children had resided with the former husband since 1994, and the children's expressed preference to remain in the former husband's home. The former husband also alleged the former wife had allowed men to stay overnight in her home when the children were present.
On September 9, 1996, the wife filed a motion to dismiss the husband's petition for modification of child custody, and a cross-petition for modification. The motion rejected the former husband's allegation that the children expressed a wish to live with him, as indicative of his breach of his parental responsibility to refrain from involving the children in any disputes or decisions regarding the children's welfare. In her cross-petition for modification, the former wife alleged the husband was paying child support in an amount significantly below the amount indicated by the child support guidelines. In this regard, the former wife alleged that the Department of Health and Rehabilitative Services had contacted the parties regarding the calculations of child support. The Department advised the parties that the former husband's child support obligation should be $793.60 per month, rather than the $100 per week established in the final judgment. The former wife moved for an upward modification of the husband's child support obligation, with child support to be set at the statutory limit.
On September 16, 1996, the former wife filed a motion for contempt, alleging the former husband had refused to pay child care expenses prior to the wife's obtaining employment, as ordered by the modified final judgment. The motion further alleged the former husband enrolled the parties' son in football, and regularly gave the son laxatives to maintain the child's ability to play within a specific weight class, and enrolled the parties' daughter in cheerleading, and allowed her to participate in the rain and inclement conditions soon after her recovery from bronchitis.
On December 17, 1996, the former husband filed a motion for contempt and an amended petition for modification of child custody. The former husband alleged the wife had continued to smoke cigarettes in the children's presence, despite the court's order. The former husband then alleged a change in circumstances, including the former wife's relationships with men and allowing men to whom she is not married to stay overnight in her home. Further, the former husband alleged the former wife left the children unattended in the afternoons and evenings, while she worked and went out for social occasions. The former husband also alleged that since 1994, the children had resided a greater portion of the time in his home than in the home of the former wife.
On October 15, 1997, the circuit court entered its "Order Modifying Final Judgment of Dissolution of Marriage and Change of Primary Residential Responsibility." The court found the former wife has a net income of $216.00 per week; the former wife admitted to violating the 1992 modification order by smoking cigarettes in the children's presence; and the former wife had placed the children on the reduced lunch program, but admitted to spending $1.85 per pack for cigarettes. The order states: "The Former Wife is taking food from her children's mouths by smoking cigarettes." The court further found:
The circuit court modified the final judgment, awarding the former husband primary residential responsibility of the children, subject to shared parental responsibility. After specifying a detailed visitation schedule, the court ordered the former wife to pay child support to the former husband in the amount of $73.00 per week.
On October 27, 1997, the former wife filed a motion for rehearing. The former wife alleged the evidence was insufficient to prove any of the findings in the modification order. The wife further alleged her financial difficulties had come about because the former husband was paying child support in an amount far below the amount called for by the child support guidelines. The former wife noted the former husband did not seek a change in residential custody until the former wife served notice of her intention to seek increased child support. The former wife admitted the children had seen her smoking, but asserted she had not smoked in an enclosed area. The motion states the only testimony about the wife's relationships with men was her own testimony that she had had relationships with two men within the preceding five years, and there was no evidence of any problems between the two men and the children.1 The former wife's motion states the former husband admitted he and his present wife lived together for two years prior to their marriage. Paragraphs 6 and 7 of the motion state:
In the rehearing motion, the former wife also asserted there was insufficient evidence to support any finding of a significant and material change in circumstances to warrant the court's decision to modify primary residential care of the children. The former wife also asserted the order did not even state there was such substantial change in circumstances since entry of the final judgment of dissolution of marriage. The circuit court summarily denied the wife's motion for rehearing.
Generally, the failure to provide a transcript or a proper substitute precludes consideration of the merits of a challenge to a circuit court's decision to modify child custody. See Fenner v. Fenner, 599 So.2d 1343, 1345 (Fla. 4th DCA), review denied, 613 So.2d 3 (Fla.1992); Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). Consideration of the merits of such cases is limited to those in which "an error of law is apparent on the face of the judgment." See Hirsch v. Hirsch, 642 So.2d 20, 21 (Fla. 5th DCA 1...
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