Schutz v. Schutz

• Decision Date: 16 May 1991
• Docket Number: No. 72471,72471
• Parties: , 16 Fla. L. Weekly 380 Laurel D. SCHUTZ, Petitioner, v. Richard R. SCHUTZ, Respondent.
• Court: Florida Supreme Court

Page 1290

581 So.2d 1290

59 USLW 2734, 16 Fla. L. Weekly 380

Laurel D. SCHUTZ, Petitioner, v. Richard R. SCHUTZ, Respondent.

No. 72471.

Supreme Court of Florida.

May 16, 1991.

Rehearing Denied July 26, 1991.

Cynthia L. Greene and Robin H. Greene of the Law Offices of Greene and Greene, P.A., and Marsha B. Elser of the Law Offices of Elser & Hodor, Miami, for petitioner.

Andrew M. Leinoff of the Law Offices of Andrew M. Leinoff, P.A., Coral Gables, and Mark A. Gatica, Miami, for respondent.

KOGAN, Justice.

We have for review Schutz v. Schutz, 522 So.2d 874 (Fla. 3d DCA 1988), in which the district court affirmed a post-dissolution order which the petitioner contends requires her to affirmatively express feelings and beliefs which she does not have in violation of her first amendment right of free expression. ¹ Although we approve the result reached below, our decision is based on a more narrow construction of the challenged order than that urged by the petitioner and accepted by the district court.

A brief summary of the facts leading up to the order at issue is sufficient for our purposes. A final judgment dissolving the six-year marriage of petitioner, Laurel Schutz (mother) and respondent, Richard R. Schutz (father) was entered by the trial court on November 13, 1978. Although custody of the parties' minor children was originally granted to the father, the final judgment was later modified in 1979. Under the modified judgment, the mother was awarded sole custody of the children, and the father was both granted visitation rights and ordered to pay child support.

As noted by the trial court, the ongoing "acrimony and animosity between the adult parties" is clear from the record. The trial court found that in February 1981 the mother moved with the children from Miami to Georgia without notifying the father. After moving, the mother advised the father of their new address and phone number. Although the father and children corresponded after the move, he found an empty house on the three occasions when he traveled to Georgia to visit the children. The father was not notified that after only seven months in Georgia the mother and children had returned to Miami. Four years later in 1985, upon discovering the children's whereabouts, the father visited the children only to find that they "hated, despised, and feared" him due to his failure to support or visit them. After this visit, numerous motions concerning visitation custody and support were filed by the parties.

After a final hearing on the motions, the trial court found that "the cause of the blind, brainwashed, bigoted belligerence of the children toward the father grew from the soil nurtured, watered and tilled by the mother." The court further found that "the mother breached every duty she owed as the custodial parent to the noncustodial parent of instilling love, respect and feeling in the children for their father." The trial court's findings are supported by substantial competent evidence.

Based on these findings, the trial court ordered the mother "to do everything in her power to create in the minds of [the children] a loving, caring feeling toward the father ... [and] to convince the children that it is the mother's desire that they see their father and love their father." The court further ordered that breach of the obligation imposed "either in words, actions, demeanor, implication or otherwise" would result in the "severest penalties ..., including contempt, imprisonment, loss of residential custody or any combination thereof."

Although the district court construed the above quoted portions of the order to require the mother to "instruct the children to love and respect their father," 522 So.2d at 875, it concluded that she was not " 'protected' by the first amendment from a requirement that she fulfil her legal obligation to undo the harm she had already caused." Id.

We begin our analysis by noting our agreement with the district courts of appeal that have found a custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. See Schutz v. Schutz, 522 So.2d at 875; Gardner v. Gardner, 494 So.2d 500, 502 (Fla. 4th DCA 1986), appeal dismissed, 504 So.2d 767 (Fla.1987); In re Adoption of Braithwaite, 409 So.2d 1178, 1180 (Fla. 5th DCA 1982). This duty is owed to both the noncustodial parent and the child. This obligation may be met by encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction.

Consistent with this obligation, we read the challenged portion of the order at issue to require nothing more of the mother than a good faith effort to take those measures necessary to restore and promote the frequent and continuing positive interaction (e.g., visitation, phone calls, letters) between the children and their father and to refrain from doing or saying anything likely to defeat that end. There is no requirement that petitioner express opinions that she does not hold, a practice disallowed by the first amendment. Coca-Cola Co. v. Department of Citrus, 406 So.2d 1079, 1087 (Fla.1981) ("the state may never force one to adopt or express a particular opinion"), appeal dismissed, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d 1297 (1982); see Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (states' interest insufficient to outweigh individual's first amendment right to avoid being courier of state motto); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (state cannot "prescribe ... matters of opinion or force citizens to confess by word or act their faith therein").

Under this construction of the order, any burden on the mother's first amendment rights is merely "incidental." ² Therefore, the order may be sustained against a first amendment challenge if "it furthers an important or substantial governmental interest ... and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Accordingly we must balance the mother's right of free expression against the state's parens patriae interest in assuring the well-being of the parties' minor children. However, as with all matters involving custody of minor children, the interests of the father and of the children, which here happen to parallel those of the state, must also factor into the equation.

In this case, the court, acting on behalf of the state as parens patriae, sought to resolve the dispute between the parties in accordance with the best interests of their children by attempting to restore a meaningful relationship between the children and their father by assuring them unhampered, frequent and continuing contact with him. See Sec. 61.13(2)(b)1, Fla.Stat. (1985) (the court shall determine all matters relating to custody of minor children in accordance with the best interests of each child and it is the public policy of this state to assure a minor child frequent and continuing contact with both parents after marriage has been dissolved); id. Sec. 61.13(3)(a) ("frequent and continuing contact with the nonresidential parent" is generally considered to be in best interest of child). In resolving the matter, the court also properly considered the father's constitutionally protected "inherent right" to a meaningful relationship with his children, ³ a personal interest which in this case is consistent with the state's interest in promoting meaningful family relationships. See id. Sec. 61.001(2)(a) (one of the purposes of chapter 61 is to "safeguard meaningful family relationships").

There is no question that the state's interest in restoring a meaningful relationship between the parties' children and their father, thereby promoting the best interests of the children, is at the very least substantial. Likewise, any restriction placed on the mother's freedom of expression is essential to the furtherance of the state's interests because affirmative measures taken by the mother to encourage meaningful interaction between the children and their father would be for naught if she were allowed to contradict those measures by word or deed.

Moreover, as evinced by this record, the mother as custodial parent has the ability to undermine the association to which both the father and the parties' children...