Lovell v. Lovell

• Decision Date: 12 June 2009
• Docket Number: Nos. 5D08-12, 5D08-1393.,s. 5D08-12, 5D08-1393.
• Citation: 14 So.3d 1111
• Parties: W. Kenneth LOVELL, Appellant, v. Heidi M. LOVELL, Appellee.
• Court: Florida District Court of Appeals

14 So.3d 1111

W. Kenneth LOVELL, Appellant, v. Heidi M. LOVELL, Appellee.

Nos. 5D08-12, 5D08-1393.

District Court of Appeal of Florida, Fifth District.

June 12, 2009.

Mina Bustamante, of Beller & Bustamante, P.L., Jacksonville, and Michael J. Korn, and Mary C. Coxe, of Korn & Zehmer, P.A., Jacksonville, for Appellant.

William S. Graessle, of William S. Graessle, P.A., Jacksonville, for Appellee.

MONACO, J.

The former husband, the appellant, W. Kenneth Lovell, seeks review of the final judgment of dissolution of marriage from his former wife, the appellee, Heidi M. Lovell, with respect to child custody and visitation, rehabilitative alimony, attorney's fees, and other determinations by the trial court. As we agree, at least to some extent, with the former husband's position regarding several of these grounds, we reverse in part, remand certain issues for additional consideration, and affirm the remainder of the final judgment.

The parties were married for thirteen years when they separated, at which time the former husband petitioned for dissolution. The former husband is a well-paid executive with the PGA Golf Tour, while the former wife is a school teacher whose primary occupation prior to the separation was as a mother and homemaker. There were two children born of the marriage, a son who is now 14, and a daughter who is now 12. The former wife and children have relocated to the State of Utah where the former wife has returned to her teaching career.

The dissolution process appears to have been highly charged emotionally, primarily because the former husband admitted that he had developed a relationship with a close friend of the family and fellow church member. Religion and church membership are particularly important to the parties and their children. Subsequent to the dissolution, the former husband married the person who the trial court referred to as the "paramour."

At the conclusion of the trial the court, with the acquiescence of the former husband, awarded the primary residential responsibility for the children in Utah to the former wife, and granted visitation to the former husband in accordance with local guidelines, but with some provisos that have proven to be troublesome. In addition, the former wife was awarded rehabilitative alimony in the amount of $4,000 per month for a period of eight years, along with guidelines child support. Finally, the court also awarded attorney's fees to the former wife. With this as a factual backdrop, we now deal with the legal issues raised by the parties.

I. Child Visitation Issues.

A. Limitation on Visitation In Presence of New Wife.

The former husband does not challenge the trial court's decision to award full residential custody of the children to the former wife. He does, however, appeal the order of the trial court forbidding his current wife from being in the presence of the children during visitation. More specifically, the final judgment (with proper names deleted) provides that:

The Husband shall not expose the minor children to his paramour ... until such time as the minor children's therapist ... deems it appropriate.

There are two serious flaws with this ruling. First, it is not supported by evidence or findings that would warrant the requirement to sequester the children from the current wife; and second, the court seems to have delegated an important part of the visitation regime to a third party.

It is clear from the testimony that the children do not like the their father's new wife, and that they blame her for the breakup of the family. There is testimony, in fact, that they refer to her as "Satan's Wife." The former husband, on the other hand, is very distressed by the fact that his children do not wish to talk to his new wife, nor be with her in the same room. Thus, emotions on this issue have been ratcheted to a high degree. More importantly, the children now live in Utah, while the former husband still lives in Florida and is now married to the woman they despise. When the children come to Florida for visitation, however, they are going to be staying in the former husband's residence, which, inconveniently, is also the residence of his current wife. One can easily appreciate the difficulties this situation presents.

Still, when the testimony is examined, there is scant evidence that being in the presence of the new wife is detrimental to the welfare of the children. There is no evidence that the female child suffered any ill effects by being exposed to the new wife, and the only negative manifestation demonstrated by the male child is that he lost a few pounds of weight. The experts testifying on behalf of each of the parties noted, on the other hand, that the new wife had never harmed the children, and that the young man's weight loss stemmed either from a severe case of parental alienation (in the view of one expert), or from "anxiety related issues" (in the view of the other). One of the experts testified that:

They've not felt love because that's being victimized by parental alienation. They're caught between God, this game I'm in with my mother is crazy but I got to do it or I'll be abandoned. It's madness what's going on in this family.

The former wife's expert—the person to whom the trial court delegated the responsibility of determining when the children could be exposed to the new wife—testified that she saw no parental alienation being practiced by the former wife. She said, instead that "from the depths of their heart, [the children] don't want to be around [new wife]."

We review a trial court's decision to restrict or limit visitation by an abuse of discretion standard. Allen v. Allen, 787 So.2d 215 (Fla. 5th DCA 2001). There must, however, be competent, substantial evidence that such a restriction or limitation is in the best interests of the children in order for it to be sustained. Miller v. Miller, 423 So.2d 638 (Fla. 4th DCA 1982). In Miller, our sister court succinctly held that because restrictions such as the one imposed in the present case "impact upon the private life of the custodial parent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child." Id. at 639-40. See also, Trylko v. Trylko, 392 So.2d 1034, 1035 (Fla. 2d DCA 1981). That logic applies here, as well.

In the present case the record is devoid of evidence demonstrating that exposure to the former husband's new wife is detrimental to the best interests of the children, nor does the record contain findings in the final judgment to that effect. For this reason alone, that portion of the final judgment requiring the sequestration of the new wife from the children must be reversed. Additionally, reversal is required because the trial court cannot delegate its authority to another person to rule on the visitation details. There is no legal basis for allowing the children's therapist to make the final call on when the new wife can be allowed to be in the presence of the children. This determination is solely within the province of a court of law.

B. Ambiguity With Respect To Summer Visitation.

The former husband contends that the trial court erred in not giving him the Seventh Circuit's guidelines summer visitation period in long distance visitation cases. While we do not conclude that the trial court erred in its division of the summer visitation period, we do find that the award is ambiguous and in need of clarification.

The former husband was awarded "one-half of the children's summer break, beginning at 5:00 p.m. on the second Friday after the end of the school year until 5:00 p.m. on the sixth Sunday after the end of the school year." We note initially that the final judgment in this regard mirrors the language of the visitation guidelines found in the local rules for the Seventh Circuit. Nonetheless, the former husband argues that the language used in the judgment did not comport with the goal of the guidelines of awarding the non-custodial parent half of the children's summer vacation because the award in time specific does not amount to half of the vacation period of the children.

Although we observe that the trial court is not bound by the visitation guidelines, as the guidelines themselves specifically provide, it appears that the trial court may have been attempting to adopt them in crafting the final judgment. Because it is uncertain from the final order whether the trial court intended to award to the former husband half of the summer vacation or four weeks of the vacation, either one of which would be reasonable under the circumstances, we remand to the trial court for clarification.

II. Propriety of Rehabilitative Alimony.

The former husband contends that the rehabilitative alimony awarded by the trial court to the former wife is not supported by a rehabilitative plan as required by law. The trial court awarded the former wife rehabilitative alimony in the amount of $4,000 per month for eight years. The award was supported, in part, by the following findings contained in the final judgment:

5. The time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment: The Husband is gainfully employed and has maintained his present employment for slightly over seven years. Although the Wife is employed as a school teacher, she just commenced her gainful employment on a full time basis. The Wife desires to return to school and pursue at least a master's degree, which will place her at the same educational level as the Husband. In order for the Wife to obtain a master's degree, she will need 45 credit hours at the rate of $270.00 per credit...