Muniz v. Muniz, 3D00-312.
| Decision Date | 28 March 2001 |
| Docket Number | No. 3D00-312.,3D00-312. |
| Citation | 789 So.2d 370 |
| Parties | Virginia MUNIZ, etc., Appellant, v. Juan MUNIZ, Appellee. |
| Court | Florida District Court of Appeals |
Guy Spiegelman, Miami; Cynthia L. Greene, Miami, for appellant.
Douglas Isenberg, North Miami Beach, for appellee.
Before SCHWARTZ, C.J., and SORONDO, and RAMIREZ, JJ.
Virginia Muniz appeals from an order which simultaneously denied her application to relocate her fourteen-year-old twin daughters from Miami to Jersey Island, United Kingdom, where she is now employed, and modified the award of primary physical residence of the children as provided in the final judgment of dissolution, from the mother to the children's father. We reverse under the authority of Perez v. Perez, 767 So.2d 513 (Fla. 3d DCA 2000),1 because a modification of primary physical residence cannot be based solely on the preference of the children.
When the parties' marriage dissolved on December 12, 1988, the mother was designated the primary residential parent of their twin daughters, who at the time were three years of age. In the summer of 1998, the mother accepted a promotion from her employer, Banco Bilbao Vizcaya, which, including benefits, would more than double her yearly earnings. This promotion, however, required her to move to Jersey Island. In October, 1998, the mother notified the father that she planned to relocate with the girls. The father subsequently filed a motion for injunctive relief which resulted in an order that the children remain in Miami-Dade County with the father. In order to avoid a change in schools during the middle of the children's school year, the mother agreed that the father could serve as temporary residential parent from October, 1998 to May, 1999, when the school year would end. In any event, the children would have to transfer to a new school in the fall of 1999.
The mother first makes serious due process allegations which, if we were to affirm, would encourage trial by ambush. These allegations stem from the Guardian ad Litem's change in testimony. On September 20, 1999, the Guardian ad Litem testified that she had no recommendation on the ultimate outcome of the parents' custody dispute. On December 7, 1999, however, she changed her testimony and recommended that the children remain with the father. The father's counsel knew of the Guardian ad Litem's change in testimony because he recalled the Guardian ad Litem to the stand and never disclosed his intention to do so to opposing counsel until after the start of the hearing. Because we are reversing on the merits, however, this issue will not be addressed.
In Perez v. Perez, 767 So.2d 513 (Fla. 3d DCA 2000), we reversed a modification of custody where the wife moved to Utah and the trial court based its decision to change custody to the father on the preference of the children. We first stated that "[a] parent seeking to modify a prior custody award bears the extraordinary burden of demonstrating a substantial change in circumstances since the entry of the initial custody decree and that the child's best interest or welfare will be promoted by the change." Id. at 516. The majority held that, before modifying a custody award, Florida courts require "proof that a child's continuing residence with the custodial parent would be detrimental to or have an adverse impact upon the child." Id. In this case, the record is devoid of any evidence that the mother's relocation would have an adverse effect upon the parties' twin girls. On the contrary, the trial judge found that the mother "offers her girls a role model of a professional woman on a successful career path, who is also an extremely devoted mother."
We also stated in Perez, that in the absence of compelling circumstances, a custodial parent's move to a foreign state was not itself a substantial change of circumstances which would support a change of custody. Id. at 517. In this case, the trial court stated that it had The mother testified that the move would improve the general quality of life for the children. The uncontradicted evidence was that the girls would be attending private schools which are "feeder schools for Cambridge and Oxford."
A review of the trial court's careful and detailed order reviewing the criteria set forth in section 61.13(2)(d), Florida Statutes (1999), finds the parents essentially at equipoise, with the decisive factor being the preference of the children, as testified to by the Guardian ad Litem. Again, Perez, 767 So.2d at 518-19, explained that:
Generally speaking, the stated preference of a child in a modification proceeding is entitled to some weight if the child possesses sufficient maturity and understanding to make an intelligent choice. However, under Florida law, the stated preference of a child who possesses the requisite maturity to make an informed decision, without more, has never been found to be sufficient to sustain a change in primary residence. (citations and footnote omitted).
Thus, the stated preferences of the children cannot support the trial court's modification of custody in the absence of other viable or compelling reasons to modify what was, in this case, a ten-year-old custody order.
We therefore reverse and remand with directions that the court reinstate the mother as the primary residential parent and readjust the financial obligations accordingly.
Reversed and remanded.
I join Judge Ramirez in reversing the trial court because I believe I am compelled to do so by this Court's decision in Perez v. Perez, 767 So.2d 513 (Fla. 3d DCA 2000). In paragraph 14 of her Final Judgment on Pending Custody Modification and Relocation, the trial judge concludes as follows:
See also Zugda v. Gomez, 553 So.2d 1295, 1296 (Fla. 3d DCA 1989)
. There are no "compelling circumstances" in this record sufficient to alter the general rule, and the trial court did not articulate any other factor as constituting the necessary "substantial change of circumstance."
I confess that I have struggled with this decision because of the amount of time that has passed since this litigation began and the substantially different situation in which the children find themselves. I firmly believe that Mrs. Muniz should have been allowed to relocate to Jersey Island with her children at the time she sought leave of court to do so. Because of the pendency of this litigation she was not, and now, two years later, this Court reverses the trial court and authorizes the move. The obvious problem is that the lives of these teenagers has greatly changed since this litigation began.2
At the time Mrs. Muniz left for Jersey Island, the children were completing the eighth grade. She envisioned that they would graduate and begin their high school education in Jersey Island. Because of this litigation, however, this did not happen. Instead, the children began high school in Miami and are now completing their second year.
During their freshman and sophomore years, the children have developed many close friendships and become extremely active in athletic activities. Whereas the move to Jersey Island might have been merely undesirable to them two years ago, such a move now will be unimaginably onerous.
By all accounts, Mr. and Mrs. Muniz are excellent parents who are devoted to their children. The trial judge was understandably impressed with both of them. In the wake of this victory, I hope that Mrs. Muniz will seriously weigh the present benefit of taking the children with her, against the effect that leaving their established surroundings will have on them. This will not be easy. Considerable financial resources have undoubtedly been expended in this lawsuit, not to mention the bitterness that such prolonged litigation usually engenders.
In the very difficult and demanding business of parenting, sacrifices must be constantly made in the interest of our children. Some of these sacrifices are more painful than others, and severely test the extent of our selflessness. I urge all concerned in this very difficult situation to be wise and to consider only the best interest of these children. As naive as this suggestion may seem, I am as morally compelled to articulate it as I am legally compelled by this Court's precedent to reverse.
Ms. Muniz appeals from an order which simultaneously denied her application to relocate her fourteen year old twin daughters from Miami to the Island of Jersey in the English Channel, where she is now employed, and modified the award of primary physical residence of the children as provided in the final judgment of dissolution, from her to the children's father.3 I agree with the court's reversal of the latter ruling, but do not as to the former.
The judgment under review ably and comprehensively summarizes the applicable facts and the manner in which the issues presented were resolved below:
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