Nissen v. Murphy, 87-2537

• Decision Date: 13 July 1988
• Docket Number: No. 87-2537,87-2537
• Citation: 528 So.2d 502,13 Fla. L. Weekly 1676
• Parties: 13 Fla. L. Weekly 1676 Susan L. NISSEN, a/k/a Susan L. Murphy, Appellant, v. Sherwood Dale MURPHY, Appellee.
• Court: Florida District Court of Appeals

Page 502

528 So.2d 502

13 Fla. L. Weekly 1676

Susan L. NISSEN, a/k/a Susan L. Murphy, Appellant, v. Sherwood Dale MURPHY, Appellee.

No. 87-2537.

District Court of Appeal of Florida,

Second District.

July 13, 1988.

Steven D. Merryday and Linda Julin McNamara of Glenn, Rasmussen, Fogharty, Merryday & Russo, Tampa, for appellant.

Gregory M. Ruster of Weeks & Ruster, and C. Kenneth Stuart, Lakeland, for appellee.

CAMPBELL, Chief Judge.

Appellant, Susan L. Nissen, also known as Susan L. Murphy (mother), appeals the final order of August 13, 1987, entered in a post-final judgment proceeding relating to modification of child custody, support and visitation. We affirm in part and reverse in part. A detailed recitation of facts is not necessary to understand the reasons for our decision.

The marriage of appellant/mother and appellee/father was dissolved by final judgment of dissolution of marriage on December 15, 1980. That final judgment approved and incorporated the parties' stipulation and property settlement governing, among other things, child custody, child support and visitation rights. There were three minor children. The oldest child is Beth Anne Murphy, born on March 11, 1970, the natural child of the mother and adopted by the father on June 12, 1978. The two younger children are Jennifer Leigh Murphy, born on September 8, 1976, and Mark Stephen Murphy, born on September 14, 1977.

The stipulation and property settlement contained the following identical language relating to child custody, support and visitation:

2. That the Husband will have permanent care, custody and control of the two minor children of the parties, to-wit: JENNIFER LEIGH MURPHY, date of birth: September 8, 1976, and MARK STEPHEN MURPHY, date of birth: September 14, 1977, subject to the right of the Wife to reasonable visitation with said children.

3. That the Wife will have permanent care, custody and control of the minor child of the parties, to-wit: BETH ANNE MURPHY, date of birth: March 11, 1970, subject to the right of the Husband to reasonable visitation with said child.

4. That the Husband will be responsible for the financial support of the two minor children of the parties, to-wit: JENNIFER LEIGH MURPHY, date of birth: September 8, 1976, and MARK STEPHEN MURPHY, date of birth: September 14, 1977, continuing until the two minor children reach majority, marry, become self-supporting or depart this life.

That the Wife will be responsible for the financial support of the minor child of the parties, to-wit: BETH ANNE MURPHY, date of birth: March 11, 1970, continuing until the minor child reaches majority, marries, becomes self-supporting or departs this life.

That any change in said support conditions shall be subject to prior Court approval.

There was no provision in either the stipulation or final judgment that restricted a custodial parent from removing the children and their place of residence from the jurisdiction of the court. There was a restriction that prohibited either noncustodial parent from removing the child or children not in their custody from the jurisdiction of the court without prior approval. In October 1986, the father announced that in the summer of 1987, he planned to move with his children to seek better employment opportunity in South Carolina. The mother filed a petition for modification of custody asserting, among other things, that the father intended to move from the state, the children desired to remain with their mother and that the mother was able to provide the children with a happy, stable familial environment. The father, in his response, counterpetitioned for modification seeking, for the first time, an award of child support...