Perez v. Perez, 3D99-2182.

• Decision Date: 05 July 2000
• Docket Number: No. 3D99-2182.,3D99-2182.
• Citation: 767 So.2d 513
• Parties: Deborah PEREZ, Appellant, v. Jorge M. PEREZ, Appellee.
• Court: Florida District Court of Appeals

767 So.2d 513

Deborah PEREZ, Appellant, v. Jorge M. PEREZ, Appellee.

No. 3D99-2182.

District Court of Appeal of Florida, Third District.

July 5, 2000.

Rehearing Denied August 16, 2000.

Marsha B. Elser, Miami; Cynthia L. Greene, Miami, for appellant.

Barranco, Kircher & Vogelsang, P.A., Miami; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A. and Joel S. Perwin, Miami, for appellee.

Before COPE, GREEN, and FLETCHER, JJ.

GREEN, J.

The former wife appeals an order changing the primary residential custody of two of the parties' three minor children from her to the former husband. She essentially maintains that the trial court abused its discretion in granting the former husband's petition for modification of custody where the evidence relied upon by the trial court failed to establish a substantial change in circumstances and that the best interests of the two minor children would be served by the modification.¹ We agree and reverse.

The parties were divorced in 1995. Pursuant to the terms of their marital settlement agreement, which was later incorporated into the final judgment of dissolution of marriage, the former wife was named the primary residential parent of the parties' three minor children. The marital settlement agreement also provided that "neither Party shall remove the permanent residence of the minor children from Dade, Broward or Palm Beach Counties, Florida, without the express written permission of the other Party or in the absence of an order issued by a court of competent jurisdiction."

After entry of the final judgment of dissolution, the former wife expressed a desire to relocate from Miami with the minor children to Park City, Utah. The parties had vacationed there on occasion with the children during the course of their marriage. In September 1996, the former husband agreed to the former wife's request to relocate with the children to Utah. It was further agreed that the relocation would take place on or about June 2, 1998. Their agreement was duly reduced to writing entitled "Addendum and Modification to the Separation and Marital Settlement Agreement".² This addendum agreement was approved by the court and incorporated as an order of the court.

In reliance upon the addendum agreement, the former wife sold her Miami home, purchased 18 acres of land in Park City, Utah and commenced construction of a 12,000 square foot home thereon for herself and the three minor children. The former wife oversaw the construction of her Utah home and thus had numerous occasions to travel to and from Utah. During her travels to Utah, the minor children remained in Miami with the former husband, usually from Wednesdays through Mondays. According to the former husband, it was during this time that the children began to express their desires to remain in the Miami area. Thereafter, the former husband had the minor children, then ages 15, 12 and 9, write a letter stating their preference to remain in Miami and had his secretary present for the purpose of attesting to and notarizing the letter. The former husband then turned this letter over to his legal counsel.

There is no record evidence that this letter or its contents was ever disclosed to the former wife by the former husband prior to the commencement of this proceeding. Rather, approximately two weeks prior to the agreed upon departure date for the former wife and children, the former husband filed a petition for modification of custody and sought an emergency injunction enjoining the former wife from relocating the children to Utah. The trial court denied the emergency motion for an injunction. The former wife and children then moved to Utah as scheduled in 1998.

After their relocation to Utah, the evidentiary hearing on the former husband's petition for modification of custody came on for hearing by the trial court in the spring and summer months of 1999. Although both the former wife and former husband presented evidence as to shortcomings in each other's parenting skills, the trial court essentially discounted the same for purposes of the petition. Indeed, both parties acknowledged and the record fully supports that both of them are very decent, loving, and caring parents who are each capable of providing these children with a very stable, nurturing and fit home environment. Moreover, the evidence unequivocably established that the former husband's primary motivation for seeking a change in custody was the children's preference and his belief that an urban area such as Miami offered a better cultured environment for the children than rural Utah.³ At the final hearing, however, the guardian ad litem reported that the parties' daughter (age 16) had changed her mind and had expressed a desire to remain with the former wife in Utah while the parties' two younger sons (ages 15 and 11) had maintained their preference of returning to Miami to reside with the former husband. The guardian ad litem ultimately recommended that the petition for modification be granted and that all three of the children be returned to Miami to reside with the former husband. Because the trial court deemed the guardian's recommendation and report to be based upon inadmissible hearsay, see Scaringe v. Herrick, 711 So.2d 204, 204-05 (Fla. 2d DCA 1998),

the court decided to interview each of the children separately, in camera, with the permission of both parents.

At the conclusion of the hearing and the court's in camera interview with each of the children, the court issued its order on the former husband's petition for modification of custody that is the subject matter of this appeal. After finding the children to be extremely articulate and intelligent and praising the parties for doing an excellent job in raising them, the trial court granted the former husband's petition as to the parties' two sons, but denied the petition as to their daughter. The court's decision was overwhelmingly based upon the articulated preference of each of the children. The court found the children's intelligence and maturation level to be sufficient enough for it to modify custody in accordance with their respective preference. The only other finding of the court to support its decision was that the children had always resided in Miami and that there had been a decline in the academic grades of the parties' oldest son since moving to Utah. The former wife's motion for rehearing of this order as well as a stay were both denied by the lower court. We granted a stay of the order pending our appellate review.

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. See Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999)

; Young v. Young, 732 So.2d 1133, 1134 (Fla. 1st DCA 1999); Chant v. Chant, 725 So.2d 445, 447 (Fla. 2d DCA 1999); Schweinberg v. Click, 627 So.2d 548, 551 (Fla. 5th DCA 1993). In applying this two-prong test for modification, it is insufficient that the petitioning parent may possess the superior financial resources or that the child may be "better off" with the petitioning parent. See Young, 732 So.2d at 1134; Chant, 725 So.2d at 447. For that reason, for purposes of a modification of custody, Florida courts have required proof that a child's continuing residence with the custodial parent would be detrimental to or have an adverse impact upon the child. See Kilgore v. Kilgore, 729 So.2d 402, 406-07 (Fla. 1st DCA 1998) (modification order to father reversed where trial court made no findings that mother's relationships with several men had affected children in any way or any finding that mother's parenting skills had deteriorated since entry of the final judgment of dissolution); Enyeart v. Stull, 715 So.2d 320, 321 (Fla. 2d DCA 1998) (holding that "The petitioner must prove both that a substantial change in circumstances has occurred since the last permanent custody order, and that the custody modification would `so clearly promote or improve the child's well-being ... that maintaining the status quo would be detrimental to the child's overall best interests.'") (citation omitted, emphasis in the original); Metcalfe v. Metcalfe, 655 So.2d 1251, 1252 (Fla. 3d DCA 1995) (evidence supported modification where "this evidence tended to show that there has been a substantial and material change of circumstances since the final judgment of marriage dissolution of such a magnitude that it would be detrimental for the children to remain in the custody of the husband, and that the best interests of the children would be promoted if the wife, who was since remarried, obtained custody of the children"); Elkins v. Vanden Bosch, 433 So.2d 1251, 1253 (modification order reversed where "there is no finding that the mother is any less fit a parent than she was when given custody of the children in 1977 and no finding that the children will be detrimented if custody is not changed").

Despite the special concurrence's protestations to the contrary, the requirement that the non-custodial parent demonstrate that a child will suffer detrimental harm if custody is not changed, does not somehow convert the well-established two-prong test for modification of custody into a three-part test. Specially concurring opinion at 19. Rather, a showing of detriment or inadequacy of care has consistently been required by the courts of this state to effectuate a modification of custody and indeed has clarified for both the bench and the bar what actually constitutes a "substantial change in circumstances."⁴See e.g., Hunter v. Hunter, 540 So.2d 235, 237 (Fla. 3d DCA 1989)

(stating that: "the trial court erred in awarding sole parental responsibility to be mother absent a specific finding that `shared parental responsibility would be detrimental to the children,'") (quoting § 61.13(2)(b)...