Martinez v. Martinez

• Decision Date: 19 December 1990
• Docket Number: No. 90-1201,90-1201
• Citation: 16 Fla. L. Weekly 22,573 So.2d 37
• Parties: 16 Fla. L. Weekly 22 Jose Manuel MARTINEZ, Appellant, v. Patricia Dee MARTINEZ, Appellee.
• Court: Florida District Court of Appeals

Page 37

573 So.2d 37

16 Fla. L. Weekly 22

Jose Manuel MARTINEZ, Appellant, v. Patricia Dee MARTINEZ, Appellee.

No. 90-1201.

District Court of Appeal of Florida First District.

Dec. 19, 1990.

T. Sol Johnson of Johnson, Green & Locklin, P.A., Milton, for appellant.

Michael A. Morris of Myrick & Davis, P.A., Pensacola, for appellee.

ZEHMER, Judge.

Jose Martinez and Patricia Dee Martinez were married for nine years, during which they adopted two young children. The marriage eventually ended in failure and a judgment for dissolution. Mr. Martinez now appeals that judgment, complaining of error in the entry of the following provisions:

(1) that "Mr. Martinez shall be designated as the children's interim primary residential parent";

(2) that "[t]he children shall remain at their school, Creative Learning Center, during this interim period of time";

(3) that "Mr. Martinez shall pay to Mrs. Martinez as rehabilitative alimony the sum of $2,000 per month ... for a period of three years";

(4) that "[t]he Court hereby reserves jurisdiction in order to effect a partition sale of the [marital] home. The said former marital home shall be listed for sale and sold by the parties as soon as reasonably practicable ";

(5) that "[i]f Mr. Martinez has a special equity in the marital home ..., it is offset by the contributions that came from Mrs. Martinez's parents "; and

(6) that "Mr. Martinez shall be responsible for the payment of Mrs. Martinez's reasonable legal fees and taxable costs incurred."

(Emphasis added.) Concluding there is error in respect to each point argued by Mr. Martinez, we reverse and remand for entry of a judgment modified in accordance with this opinion.

I. Designation of "Interim" Primary Residential Parent

In the final judgment, after reciting that "[b]oth of the parties are presently undergoing a significant lifestyle transformation," and that "it is a little bit uncertain at this time for this Court to fashion a hard and fast final decision with respect to which parent should be designated as the children's 'final primary residential parent'," the circuit court ordered that "Mr. Martinez shall be designated as the children's interim primary residential parent" and noted that "[t]his ruling will hold fast and stand for a period of two years, at which time the Court will re-examine and make a decision that should be final and binding." Mr. Martinez contends that since he is the person found to be the proper primary residential parent, the trial court abused its discretion in designating him an "interim" primary residential parent and requiring the parties to relitigate the custody issue in two years rather than proceeding by modification of this award based on a showing of a material change in circumstances. He points out that he cannot make any permanent plans for housing and care of the children so long as their ultimate custody is open to change without such a showing.

We agree with appellant's argument on this point. The issue of primary residential responsibility was ripe for decision when the case came on for final hearing, and it was the obligation of the court to enter a judgment determining this issue with finality, subject to subsequent modification upon a substantial change in circumstances. Section 61.13(2)(b)1, Florida Statutes (1989), provides that "[t]he court shall determine all matters relating to the custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act." Section 61.1326, a provision of the UCCJA, provides that:

[a] custody decree rendered by a court of this state which has jurisdiction ... binds all parties who have been served in this state or notified ... or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties, the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this act.

(Emphasis added.) As a general rule, when a cause is submitted to a court for determination and the court renders its judgment, "there should always be as much finality as possible ..., not only for the benefit of the parties and the court, but also for the public and any third persons who may have to look at the records for guidance in dealing with the litigants." 46 Am.Jur.2d Judgments § 379 (1969). See also Irving Trust Co. v. Kaplan, 155 Fla. 120, 20 So.2d 351, 354 (1944) (final judgment is one that determines and disposes of the whole merits of the cause before the court by declaring that the plaintiff either is or is not entitled to recover by the remedy chosen, or completely and finally disposes of a branch of the cause that may be separate and distinct from the other parts thereof). This degree of finality is necessary because "[a] litigant is entitled to know that a judgment determining his rights is final and will not be disturbed, except on appeal, or under the conditions prescribed by a rule." Board of Public Instruction v. Dinkines, 278 So.2d 663, 664 (Fla. 3d DCA 1973). Orders providing for temporary custody or temporary primary residential care are appropriate to enter while the case is pending before the entry of final judgment. See, e.g., Bowles v. Bowles, 384 So.2d 299, 300-301 (Fla. 4th DCA 1980) (non-final order awarding wife temporary custody of the children pending final dissolution proper and should not be disturbed); Blass v. Blass, 316 So.2d 308, 309 (Fla. 3d DCA 1975) (where evidence as to which parent should have permanent custody was insufficient, trial court's award of temporary custody of the children upheld and case remanded for a full evidentiary hearing de novo to determine which parent should be awarded permanent custody). However, when a cause involving child custody is presented to the trial court at the final hearing and there is evidence from which the trial court can conclude that the children's best interests dictate that one parent rather than the other should be designated the primary residential parent, the trial court is required to make a final determination on that issue at that time. Appellee cites no statutory or case authority for the proposition that the trial court can defer such decision for several years to see how the respective situations and conduct of the parents work out, as the court did in this case, and we know of no authority for that proposition.

Accordingly, we hold that the trial court abused its discretion in ruling that Mr Martinez would be the "interim primary residential parent" and requiring the parties to return before the court in two years to continue litigating this issue for the court to "make a decision that should be final and binding." The child custody issue was properly before the court at the final hearing, and both parties presented evidence on the children's best interests assuming either party were designated the primary residential parent. After hearing this evidence, the court specifically found that it was in the children's best interest that Mr. Martinez should be the primary residential parent and this finding is supported by competent substantial evidence. There was evidence that due to Mrs. Martinez's physical and emotional condition, she could not serve as the primary residential parent at this time or at any specific time in the future. There was nothing in this record precluding the court from making a final decision on custody at the time of the hearing. There was no evidence to support the court's decision to provide a two-year delay, as distinguished from some other period of time, in making that decision. This ruling thus erroneously deprived the final judgment of the statutorily-required finality. Therefore, we vacate the designation of Mr. Martinez as "interim" residential parent and remand with directions to award Mr. Martinez permanent primary residential responsibility, subject to future modification in accordance with the general law of modification upon a showing of substantial change in circumstances. See § 61.1326, Fla.Stat. (1989). See also Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975), opinion modified, 327 So.2d 55 (Fla. 1st DCA 1976); Brush v. Brush, 414 So.2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So.2d 688 (Fla. 3d DCA 1980).

II. Specification of a Particular School

The final judgment ordered that both children remain at the Creative Learning Center (CLC), where they had previously attended school, during the two-year period of time that Mr. Martinez was to serve as the "interim" primary residential parent. This requirement was based on the court's finding that "the welfare and the best interests of the children will be better served if their stability with respect to the Creative Learning Center, teachers and schoolmates, remains the same." Mr. Martinez does not object to providing private education for his children, but he contends that the court abused its discretion in ordering him to continue the children's enrollment at CLC because: (1) the primary residential parent should be permitted to choose the school that the children will attend in the absence of agreement between both parents, (2) he is financially unable to continue the children's education at that particular school, and (3) he should not be compelled to continue an unhappy relationship at the school manifested by hostility between him and the school's principal, who has been and continues to be Mrs. Martinez's paramour and a primary cause of the dissolution of the marriage. Again we agree with appellant.

Section 61.13(2)(b)2.a, Florida Statutes (1989), provides that:

[i]n ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide...