Stockburger v. Stockburger, 93-01298
| Decision Date | 18 March 1994 |
| Docket Number | No. 93-01298,93-01298 |
| Citation | 633 So.2d 1140 |
| Parties | 19 Fla. L. Weekly D619 Lisa P. STOCKBURGER, Appellant, v. Bruce H. STOCKBURGER, Appellee. |
| Court | Florida District Court of Appeals |
Michael L. Hastings, St. Petersburg, for appellant.
James W. Denhardt, St. Petersburg, for appellee.
The mother, who is the custodial parent of the parties' two minor children, challenges the trial court's order denying her supplemental petition to modify the final judgment of dissolution of marriage in which she requested permission to change her residence to Raleigh, North Carolina, with the children and to restructure the father's visitation schedule. She argues the trial court erred by concluding the move would not be in the best interests of the children. We agree and reverse.
The parties married in Pinellas County in April of 1980 and divorced there in November of 1990. The two children of this marriage are now twelve and thirteen years of age. They have always lived and attended school in the Pinellas area and have established friendships there.
The father has always resided in Pinellas County. His parents and two brothers also live there, and they enjoy a good relationship with the children. Additionally, the father has been employed for twenty years as a police officer with the city of St. Petersburg and is currently five years away from qualifying for full retirement benefits. This fact makes it financially impractical for him to relocate to another area at this time.
The mother was born in Pinellas County and spent her early childhood years there. She later lived in Raleigh while attending high school, but she no longer has any family in that immediate area. After graduating from college, she returned to the Pinellas area, where she met and married the father.
The final judgment of dissolution of marriage incorporated a marital settlement agreement in which the parties stipulated they would have shared parental responsibility of their children, with the mother as the primary residential parent. The parties agreed the father would have liberal visitation rights which were to include, at a minimum, two weekends each month, one evening during the week, two weeks during the summer, one week during the Christmas holidays, and Father's Day. They also agreed to alternate visitation on major holidays and birthdays. Although not specifically delineated in the agreement, the parties contemplated that the father would have very close physical contact with the children. However, there was no provision in either the agreement or the final judgment prohibiting the mother from relocating to another jurisdiction with the children.
One year after the parties' divorce, the mother renewed her relationship with her high school sweetheart from Raleigh. They were engaged to be married in May of 1992. Several weeks later she filed her petition to relocate to Raleigh. She alleged a desire to move based on her impending marriage, the availability of better employment opportunities, and the fact that the children would experience a higher standard of living and better educational, cultural, and recreational benefits.
Prior to the hearing on the mother's petition, the parties executed a court-approved written stipulation confirming the trial court's continuing jurisdiction over the children. They also agreed the residence of the children would continue to be in Pinellas County and neither of them would remove the children from the state of Florida without the consent of the other or the court.
The mother has delayed her marriage plans pending resolution of her petition. The evidence suggests that if the petition is not decided in her favor she will not remarry and will remain in Pinellas County.
In hopeful anticipation of being able to move to Raleigh with the children, the mother sought and received a firm employment offer there. Her annual salary would be $16,000, which represents a four thousand dollar annual increase over her present salary. The position also offers a retirement plan, which is not available at her current employment.
If allowed to move, the mother and children would live in a spacious home owned by her fiancee free of any mortgage where the children would have their own bedrooms. The home is located in a nice, secure subdivision, and the children would have access to various recreational and cultural amenities not available to them in their present setting. The children would also be enrolled in a good school system offering a variety of artistic and musical programs which they are interested in pursuing. Finally, in contrast to their present situation, they would have more reliable transportation to and from school.
The mother's fiancee enjoys an extremely stable financial position. In addition to owning his home outright, he owns two cars which are also unencumbered, earns an annual salary of $27,500, and receives ten thousand dollars a year in gifts from his parents. More importantly, he and his parents, who also live in Raleigh, have established a good relationship with the children.
In contrast to this anticipated lifestyle, the mother and children currently live in a small apartment where the children must share a room. The apartment is in need of repairs and is located in a deteriorating three-hundred-unit complex that does not offer a safe environment. The mother is also having difficulty meeting their basic living expenses. Indeed, the father acknowledged that since the divorce the children have experienced a lower standard of living.
If approved, the move would cause an approximate six-hundred-mile separation between the father and the children. To alleviate this situation, the mother proposed a visitation arrangement allowing for less frequent but longer periods of visitation than provided for in the parties' original agreement. Under her plan, the father would have the children during the summer months and certain holidays for a minimum of ninety-three days a year. The mother agreed to pay the childrens' airfare necessitated by the new schedule and one hour per week of long distance telephone calls between the father and the children. Finally, she had no objection to the father visiting the children in Raleigh and calling them without restriction.
The evidence clearly established that during the marriage the father played as equal and as significant a role in raising and caring for the children as did the mother. After the divorce, he continued to be actively involved in all phases of the childrens' lives and spent considerably more time with them than the minimum periods outlined in the agreement, which often included overnight stays several times a week. As a result of the father's commitment to the children, there is no question they enjoy...
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Wilson v. Wilson, 2D01-4197.
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