Lenders v. Durham
| Decision Date | 20 July 1990 |
| Docket Number | No. 89-02675,89-02675 |
| Citation | 564 So.2d 1186 |
| Parties | 15 Fla. L. Weekly D1879 Mary Susan LENDERS, formerly Mary Susan Durham, Appellant, v. Kirby P. DURHAM, Appellee. |
| Court | Florida District Court of Appeals |
Phillip J. Jones of Wilkins, Frohlich, Jones, Hevia & Russell, P.A., Port Charlotte, for appellant.
C. Michael Fischer, Englewood, for appellee.
Mary Susan Lenders, also known as Mary Susan Durham (mother), appeals the final judgment of November 11, 1989, which modified the final judgment of dissolution by awarding custody of the two minor children to Kirby P. Durham (father), and by ordering the mother to pay $27.50 per week for the support of the two minor children. We reverse because the father did not meet his burden of establishing that there has been a substantial and material change in circumstances since the dissolution of the marriage.
The parties were married in 1971 and divorced in 1979 in Illinois. At the time of their divorce, they had two children; one was four years old and the other was one and one-half years old. The Illinois final judgment awarded the care, custody and control of the children to the mother. The parties had agreed on custody and stipulated this to the Illinois court. The judgment neither limited nor restricted the geographical location of the mother and children.
In 1980, the mother and her two sons moved to Florida, followed by the father and his subsequent wife. The parties enjoyed an amicable relationship until the father learned that the mother and her present husband were planning a move to Tennessee. On April 28, 1988, the father filed a petition in Charlotte County to establish the Illinois final judgment as a Florida decree and to modify it to award him custody of the children based upon a substantial change of circumstances. The petition alleged that the children were not being properly cared for; that their educational needs were not being properly addressed by the mother; that the mother was planning a move to Tennessee with the two minor children; and that the children did not want to leave Florida.
The trial court entered an emergency ex parte order which enjoined the mother from removing the children from the court's jurisdiction. The court denied the mother emergency relief from the order and sua sponte changed the custody of the minor children to the father.
During the modification hearing, the trial judge heard from both parents, the father's wife, the mother's husband and friends of the parties. The evidence presented regarding the quality of care the mother was giving the children, and the mother's housekeeping skills did not support a finding that any substantial change of circumstances had occurred since the final dissolution of marriage. While we recognize the broad discretion given the trial court in making these decisions, we hold that the trial court abused its discretion in transferring residential custody to the father. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Wells v. Wells, 501 So.2d 700 (Fla. 2d DCA 1987).
The fact that the husband never complained about the allegedly poor care of the children and the inadequate housekeeping skills of the mother, until learning that the mother was planning a move to another state, tends to support the belief that the motive behind the petition to modify the final judgment is the father's objection to the move. In fact, the record reveals that the parties had a very good relationship, one that the father described as being like a brother and sister. It is interesting to note that even the court found that both parents had a stable and healthy relationship with their present spouses, and an affectionate regard and concern for the welfare of the children.
This court has held that a custodial parent's planned move to another state, in and of itself, does not constitute a substantial change in circumstances warranting a change of custody of the minor children. Nissen v. Murphy, 528 So.2d 502 (Fla. 2d DCA 1988). When a noncustodial parent objects to the relocation of the minor children, the trial court should resolve the question by applying the test enunciated in Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989). Hill sets forth the...
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deBeaumont v. Goodrich
...the child's residence, and relocation without more is not per se a substantial change of circumstances. See Lenders v. Durham, 564 So.2d 1186, 1188 (Fla.Dist.Ct.App.1990); Smith v. Mobley, 561 N.E.2d 504, 506 (Ind.Ct.App.1990); VanName v. VanName, 308 S.C. 516, 419 S.E.2d 373, 374-75 (Ct.Ap......
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Muniz v. Muniz, 3D00-312.
...which would support a change of custody.")[e.s.]; see VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999); Lenders v. Durham, 564 So.2d 1186 (Fla. 2d DCA 1990); Finney v. Giddens, 707 So.2d 856 (Fla. 2d DCA 1998); Schweinberg v. Click, 627 So.2d 548 (Fla. 5th DCA 1993); cf. Goodmon v. G......
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...(Fla. 3d DCA 1993), rev. denied, 639 So.2d 975 (Fla.1994); Tamari v. Turko-Tamari, 599 So.2d 680 (Fla. 3d DCA 1992); Lenders v. Durham, 564 So.2d 1186 (Fla. 2d DCA 1990); Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989), rev. denied, 560 So.2d 233 (Fla.1990); Sherman v. Sherman, 558 So.2d 149......
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