Matilla v. Matilla

• Decision Date: 16 July 1985
• Docket Number: No. 85-53,85-53
• Citation: 474 So.2d 306,10 Fla. L. Weekly 1739
• Parties: 10 Fla. L. Weekly 1739 Dale MATILLA, Appellant, v. Barbara MATILLA, Appellee.
• Court: Florida District Court of Appeals

Page 306

474 So.2d 306

10 Fla. L. Weekly 1739

Dale MATILLA, Appellant, v. Barbara MATILLA, Appellee.

No. 85-53.

District Court of Appeal of Florida,

Third District.

July 16, 1985.

Rehearing Denied Sept. 10, 1985.

Gerald A. Rosser, Miami, for appellant.

Michael D. Felton, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

Dale and Barbara Matilla grew up and married in the state of Michigan. In 1981, a daughter, Corrie, was born there. Shortly thereafter, they came to Florida in search of improved employment opportunities. The marriage broke up and was dissolved in 1985. The trial judge determined that the child's primary physical residence should be with the mother, with liberal visitation rights to the father. The sole issue on this appeal is the father's claim that, because he had a responsible position as a police officer and wished to remain in Florida, the trial judge erred in permitting the mother to return, as she wished, to Michigan with the child. We find no abuse of discretion in this ruling. Anderson v. Anderson, 461 So.2d 130 (Fla. 3d DCA 1984); Simon v. Simon, 435 So.2d 941 (Fla 4th DCA 1983); Hale v. Hale, 12 Mass.App. 812, 429 N.E.2d 340 (1981), and cases cited; Grothendick v. Grothendick, 175 Neb. 726, 123 N.W.2d 646 (1963); cf. McIntyre v. McIntyre, 452 So.2d 14 (Fla. 1st DCA 1984); but cf. Costa v. Costa, 429 So.2d 1249 (Fla. 4th DCA 1983).

We endorse the extensive analysis of the present issue in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch.Div.), aff'd per curiam, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976), where the court, in discussing the difference in a child's relationships with the residential and the non-residential parent, pointed out:

Even under the best of circumstances and where the custodial parent is supportive of a continuing relationship between the child and the non-custodial parent, the nature of a parental relationship sustainable by way of visitation is necessarily and inevitably of a different character than that which is possible where the parents and children reside together as a single-family unit. The fact remains that ordinarily the day-to-day routine of the children, especially young ones, and the quality of their environment and their general style of life are that which are provided by the custodial parent and which are, indeed, the custodial parent's obligation to provide. The children, after the parents' divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.

D'Onofrio, 144 N.J.Super. at 204-206, 365 A.2d at 29-30. The court went on to say, and we again agree, that the factors to be considered in determining whether the residential parent should be permitted to leave the jurisdiction include:

the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.... [T]he integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders ... which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed. The court should not insist that the advantages of the move be sacrificed ... solely to maintain weekly visitation by the father .... It is at least arguable, and the literature does not suggest otherwise, that the alternative of uninterrupted visits of a week or more in duration several times a year [or longer visits during the summer] ... may well serve the paternal relationship better than the typical weekly visit....

Id. at 206-207, 365 A.2d at 30.

Applying these standards to the order below, we cannot interfere with the trial court's determination as to the best interests of the child with whose welfare it was charged. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.

JORGENSON, Judge, dissenting.

Because the trial court obviously ignored the expert testimony and the report of the court-ordered guardian ad litem, which is the only evidence in this case bearing on the issue of the best interest of the child, I respectfully dissent.

I have no quarrel with the court's approval of D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch.Div.), aff'd per curiam, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976), but believe its facts are substantially different than those of the case at bar. In D'Onofrio the court approved the custodial parent's move to another state where the standard of living...