McIntyre v. McIntyre, AN-449

Decision Date18 April 1984
Docket NumberNo. AN-449,AN-449
Citation452 So.2d 14
PartiesRodney K. McINTYRE, Appellant, v. Nance Ruth McINTYRE, n/k/a Nance Ruth Greene, Appellee.
CourtFlorida District Court of Appeals

Gene T. Moss, Moss & Edwards, Jacksonville, for appellant.

Kevin V. Canipelli, Jacksonville, for appellee.

SMITH, Judge.

Appellant seeks reversal of an order modifying child custody. Under the order, custody of the parties son was changed from appellant to the appellee-mother, and the mother was permitted to take the son and the parties' second child, a daughter, to Japan where they will reside during the two-year tour of duty of the mother's present husband, a naval officer. We affirm.

Appellant cites alleged erroneous rulings on evidentiary matters, and contends that the trial judge also applied an erroneous standard in determining whether the mother's petition and supporting evidence warranted a change of custody. Appellant further argues that the evidence did not support change of custody of the parties' son to the mother, nor did it support denial of appellant's petition for change of custody of the daughter to appellant. He further complains that it was error for the trial court to fail to limit the children's residence outside Florida to the two-year period in Japan, and to require appellant to continue child support payments while the children are in Japan.

The parties were divorced in February, 1980, at which time by agreement of the parties the mother was granted custody of the six year-old daughter, and the father was given custody of the nine year-old son. In September, 1981, the mother married a Lt. Commander in the naval service, a member of the North Carolina Bar serving as a legal officer at Jacksonville Naval Air Station. The present litigation stems from the new husband's impending transfer to Misawa Air Base, Japan, where he will be stationed for a period of two years, if accompanied by dependents, or eighteen months if not so accompanied. The mother petitioned for modification to gain custody of the son, and, as required by the final judgment, requested the court's permission to remove the daughter and the son from the State of Florida. 1 In response, appellant petitioned for a modification, seeking custody of the parties' daughter.

The most critical issue of law is whether the trial court erred in misconstruing the effect of the newly amended Section 61.13(2)(b), Florida Statutes (1982), by determining that the new law changes the requirements for modification of a custody decree. The long-established rule in this state is that to justify modification, the trial court must find (1) a substantial change in circumstances and (2) that the best welfare and interests of the child will be promoted by the court's action. Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla.1980); Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975). The question is whether the 1982 amendments eliminated the requirement of showing a "substantial change in circumstances" in modification proceedings. Before enactment of Chapter 82-96, Laws of Florida (1982), Section 61.13(2)(b), Florida Statutes, read in part as follows:

The court shall award custody and visitation rights of minor children of the parties as a part of proceedings for dissolution of marriage in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. (emphasis supplied)

By enactment of Chapter 82-96, the above quoted portion was amended to read as follows:

The court shall determine all matters relating to custody of each minor child of the parties as a part of any proceeding under this chapter in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. (emphasis supplied)

As seen from the above, the "best interests of the child" standard, formerly applicable (by the terms of the statute) only to initial custody determinations made in dissolution proceedings, by the 1982 amendment is made applicable to "any proceeding" under Chapter 61, which obviously would include modification proceedings. The problem presented by the statutory amendment is that while the statutes provide (as they have since 1975) specific factors to be considered by the trial courts in determining "best interests of the child," (see Section 61.13(3)(a)-(j), inclusive), the statutes are silent with respect to the "substantial change in circumstances" requirement in modification proceedings.

As contended by appellant, it appears from the transcript of the hearing below that the trial court viewed the amendments as setting forth the criteria applicable to child custody decisions in modification proceedings as well as in initial custody determinations, and there is some indication from the language used by the court in discussing the amendments that he believed a "substantial change in circumstances" was no longer required for modification. Whether the trial court completely disregarded the "change of circusmtances" requirement is open to some question, from a mere reading of the record, but in view of appellee's acceptance of the interpretation advanced by appellant, we are bound to address this issue.

The trial judge's assumption, if he did so assume, that the new act does away with the requirement of "change in circumstances," is in our view incorrect. As appellant points out, the new amendments retain the requirement that determination of child custody matters be made "in accordance with the best interests of the child," but the same amended section also continues to require that this determination be made "in accordance with the Uniform Child Custody Jurisdiction Act." Therefore, the Uniform Child Custody Jurisdiction Act, not merely subparagraphs (3)(a) through (j), setting forth factors "affecting the best welfare and interests of the child," must be considered. It is clear that other provisions, specifically Section 61.1326, relating to the binding force and res judicata effect of a custody decree, must also be considered. That provision reads as follows:

61.1326 Binding force and res judicata effect of custody decree --A custody decree rendered by a court of this state which has jurisdiction under s. 61.08 binds all parties who have been served in this state or notified in accordance with s. 61.1312 or 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.

We find no indication that the res judicata effect of custody decisions made prior to the effective date of the amendments may be disregarded. See, Avery v. Avery, supra, 314 So.2d at 200, and Teta v. Teta, 297 So.2d 642, 646 (Fla. 1st DCA 1974). On the other hand, once a change in circumstances sufficient to bring the matter before the court for redetermination has been shown, we agree with the trial court's ruling that the amended statute controls modification proceedings as well as original custody determinations. 2 Thus Appellant urges that the trial court's misinterpretation of the statute requires reversal. This may or may not be the case. 4 As our sister court has recently observed in Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2nd DCA 1979), the "cardinal principle" of appellate review is that error is reversible only when, considering all the facts peculiar to the particular case, it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed. It has also been stated, as noted by the Fourth District in Anthony v. Douglas, 201 So.2d 917 (Fla. 4th DCA 1967), that errors which do not affect the outcome of the trial are not harmful. See also, 3 Fla.Jur.2d, "Appellate Review," §§ 360-364.

we find no error in the trial court's use of the "best interests of the child" standard in this modification proceeding. One of the statutory factors to be considered is the "reasonable preference of the child," Section 61.13, subparagraph (3)(i). 3 Here the trial court specifically found that both children have "indicated to their parents a preference to go to Japan which the court finds to be a reasonable preference," pursuant to the statute.

Under the foregoing principles, whether reversible error is shown by the trial court's erroneous assumption that a change in circumstances is no longer a prerequisite to modification of child custody arrangements must be determined from examination of the facts and circumstances presented by this case. In this connection, we note first that the mother's motion for modification was filed before the effective date of Chapter 82-96, and in conformity with existing law; that is, the motion specifically alleged "that there have been substantial changes in the conditions and circumstances surrounding the parties" since the original custody judgment was entered, and it alleged that it would be "in the best interests" of both children if custody of the son were transferred from the father to the mother. The motion for modification reveals the mother's remarriage, the fact that her new husband had received orders from the United States Navy to proceed to Misawa, Japan, for a tour of duty, and that she planned to accompany him and desired to take the two children so that they would be together during their absence from the state of Florida. The alternative of allowing the mother to take only the daughter and of having the children change residences during the summer vacation would have meant virtual total separation of the children for the entire two year period.

This court has recently held, in Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), that a motion for judgment on the pleadings was properly denied with...

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