Pedersen v. Pedersen, 1D99-1896.

• Decision Date: 28 February 2000
• Docket Number: No. 1D99-1896.,1D99-1896.
• Citation: 752 So.2d 89
• Parties: William L. PEDERSEN, III, Appellant, v. Debra Ann Barker PEDERSEN, Appellee.
• Court: Florida District Court of Appeals

752 So.2d 89

William L. PEDERSEN, III, Appellant, v. Debra Ann Barker PEDERSEN, Appellee.

No. 1D99-1896.

District Court of Appeal of Florida, First District.

February 28, 2000.

Kristin Adamson of Novey, Mendelson & Adamson, Tallahassee, for appellant. Patricia B. Fournier of Bajoczky & Fournier, Tallahassee, for appellee.

WOLF, J.

Appellant appeals the dismissal of his petition to modify the custody arrangements in the parties' final judgment of dissolution of marriage. Because appellant's allegations, if true, would amount to a material and substantial change in circumstances, we reverse.

After 15 years of marriage, the parties were divorced on December 1, 1993. They reached a settlement agreement which included the custody arrangements for their two children. The son was to live with appellant, and the daughter was to live with appellee. The agreement provided for regular contact between the two children, including spending every weekend together alternating between the parents.

According to appellant's petition, very little has gone according to plan. Specifically, appellant alleged a substantial change in circumstances as follows:

Since the parties' original agreement, a substantial change of circumstances has occurred such that primary residency of [daughter] should be modified and child support for both children should be awarded to the former husband:

(A) On or about August 1, 1995, the former wife left Tallahassee to obtain an advanced nursing degree in Birmingham, Alabama. The [daughter] stayed in Tallahassee and resided with the former husband and her brother....

(B) During the time the former wife was in Birmingham, Alabama, she had very limited contact with the minor children. This was of her own accord and to the dismay of the minor children.

(C) The former wife began paying child support for [daughter] to the former husband of $200 per month at that time. The former husband became responsible for virtually all of [daughter's] expenses with the exception of the previously bargained-for health expenses.

(D) The former wife relocated back to Tallahassee, Florida, but [daughter] has continued to reside with her brother and the former husband and has done so for at least the last three years. At that time, the former wife agreed to pay to the former husband $500 per month for child support.

(E) The former wife has never availed herself to the complete visitation agreement. She has never had mid-week visits with the children despite the former husband's encouragement to do so. She has often not picked the children up for her weekend visitation until Saturday morning, alleging conflicts. The children and their father have then seen her out at restaurants on Friday nights with her friends (alleged conflicts).

(F) The children are both performing well in school and are actively involved in extra-curricular activities.

(G) It is in their best interest to remain in the primary residence of the former husband and would be to the detriment of both children for the [daughter] to return to the primary residence of the former wife. The former wife has, on more than one occasion, failed to pick Meredith up from school on her proposed weekend visitation. One occasion was the very recent hurricane, causing the child to have to walk home in the rain and storm. The former wife has not shown the degree of care necessary to care for this child on a part-time basis, let alone a full-time basis.

(H) [Daughter] is 13 years old and desires to continue residing with her father and brother. It is in the best interest of the children to remain residing together as a family.

(I) The former wife recently stopped her $500 per month child support payments for [daughter]. She has never paid child support for [son]. This is causing financial strain on the former husband. The former wife is well able to support financially these children and should be required to do so.

The trial court ruled that appellant's allegations failed to demonstrate a substantial change of circumstances, and therefore, would not support a modification of the permanent custody agreement. See Smoak v. Smoak, 658 So.2d 568 (Fla. 1st DCA 1995)

. In reviewing an order granting a motion to dismiss for failure to state a cause of action, the appellate court must accept as true all well-pled allegations in the complaint and draw all reasonable inferences in favor of the pleader. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999). The issue before us in this case is whether the appellant's allegations of voluntary relinquishment of custody for a substantial period of time, when coupled with other factors, may constitute a...