Young v. Hector

• Decision Date: 24 June 1998
• Docket Number: No. 96-2847.,96-2847.
• Parties: Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.
• Court: Florida District Court of Appeals

740 So.2d 1153

Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.

No. 96-2847.

District Court of Appeal of Florida, Third District.

June 24, 1998.

Opinion Granting Rehearing July 14, 1999.

Rehearing Denied September 1, 1999.

Barbara Green, Coral Gables; Ellen Lyons, Miami, for appellant.

Young, Berman, Karpf, and Burton Young, and Andrew S. Berman, Miami Beach; Hector and Harke, and Lance A. Harke, Miami; Amy D. Ronner, Miami, for appellee on rehearing.

Before SCHWARTZ, C.J., and NESBITT and GODERICH, JJ.

Opinion Granting Rehearing En Banc July 14, 1999.

PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage. We reverse and remand for further proceedings.

The record indicates that the parties were married in New Mexico in February 1982. The parties have two daughters, Baylor, who was born in 1985, and Avery, who was born in 1988. Since the children were born, the parties have always had either a live-in nanny, au pair, or housekeeper, who has helped care for the children.

At the time of their marriage, one spouse, an architect, was involved in several business ventures, including a publishing company and a custom-home building firm. The architect was very successful until the stock market crashed in October 1987.

The other spouse was an attorney, who, at the time of the parties' marriage, had a law firm. The attorney's income would vary somewhere between $30,000 and nearly $100,000 per year.

After the parties' youngest child was born, the parties discussed a possible relocation to Florida. The architect told the attorney that if the attorney could find a job in Miami, the architect would be willing to relocate. In 1989, the attorney found employment at a prestigious, mid-sized law firm earning approximately $120,000 per year. Shortly thereafter, the attorney and the children relocated to Miami, while the architect remained in New Mexico for six months to finish several projects and to sell the parties' home. In the summer of 1992, the architect returned to New Mexico for approximately 14 months to direct a treasure recovery project. During the 14-month period, the children remained in Miami with the attorney, but the children visited with the architect approximately every five weeks.

In the fall of 1993, the attorney, who by this time was earning approximately $275,000 with the mid-sized law firm, accepted a shareholder position at one of Florida's largest law firms earning over $300,000 per year. Shortly after the attorney accepted the position with the new firm, the architect returned to Florida. Upon the architect's return, the parties separated although they both continued to live in the marital home. The attorney filed for divorce in May 1995.

At trial, the court accepted evidence relating to alimony, child custody, and the equitable division of the marital assets and liabilities. The evidence included the testimony of the parties, neighbors, friends, the children's teacher, school counselor, and the managing partner of the law firm where the attorney is currently employed.

The attorney testified that when the attorney is involved in a trial, the attorney works approximately 12 to 14 hours per day, six to seven days per week. On the other hand, when the attorney is not in trial, the attorney works 45 to 50 hours per week. Moreover, during the past two years, the attorney has had several cases that have required the attorney to travel to Central Florida. When traveling, the attorney would either leave Miami very early in the morning and return late at night, or would stay in Central Florida overnight. The cases that required the attorney to travel to Central Florida have been settled, and the attorney's remaining cases will no longer require the attorney to travel outside of Miami. In addition to the attorney's employment at the law firm, the attorney also teaches at a law school.

The managing partner gave deposition testimony stating that the attorney is a senior litigation partner and is responsible for major cases. The managing partner also testified that it is "very easy" to accommodate family problems when an attorney works in the corporate or real estate department, but that it is "very difficult" to accommodate family problems when an attorney works in the litigation department. Further, he stated that the average litigation partner works 10 to 11 hours per day, and that litigators cannot work only eight hours per day, five days per week.

The parties testified that except for a few small remodeling jobs, the architect has been unemployed for approximately six years. After the architect moved to Miami, the architect attempted to find employment, but was unsuccessful. The architect lacks the computer skills that are needed to find employment as an architect in the present job market. The architect testified that both University of Miami and Florida International University have a two-year masters program that will teach the necessary computer skills.

The record demonstrates that since returning to Miami in the fall of 1993, the architect has been very dedicated to the children. For example, the architect started and led one of the children's Brownie troop, coached one of the children's soccer team, regularly volunteered at the children's school, and takes the children to doctor and dentist appointments.

At trial, the guardian ad litem's report was introduced into evidence, and he also testified at trial. In his report, the guardian ad litem recommended that the attorney be designated the primary residential parent and that the architect be granted very liberal and frequent access to the children. The report states that the architect is "warmer" and "phenomenal" with the children, and that the attorney "tends to be somewhat cooler by nature, but consistently spends time with the children and makes a point out of doing things with them on weekends and when [the attorney] is available evenings." The guardian ad litem also found that since the parties have been living in Miami, the architect "has been the dominant caretaker during the day, and [the attorney] on weekends, although both pitch in as needed." The guardian ad litem testified that he looked at three "determinative factors" in recommending that the attorney be named the primary residential parent. First, the attorney has been more economically stable throughout the marriage. Second, the attorney has been "the more constant factor throughout the entire relationship. There have been times in the children's life when [the architect] has been, for whatever reasons, away from the home for substantial periods of time and [the attorney] has been the dominant influence." Third, the attorney "controls [anger] better around the kids."

Isabel Singleton, a neighbor and family friend, testified that the architect pays attention to detail, is very goal-oriented, and very caring. She also stated that the attorney is involved in the children's activities, plays with the children, takes them to the movies, the beach, and the zoo, and brings out their self-expression. Further, she testified that the attorney is usually available on weekends and that the attorney's work has not interfered with the ability to be a good parent. Laura Mirabito, another neighbor and family friend, testified that the architect has a very close relationship with the children, coaches the soccer team, picks the children up from school, coordinates the children's play dates, and participates in school activities. On the other hand, she testified that the attorney is the one who coordinates the sleepovers, and that the attorney is at home on the weekends and in the evenings.

Keith Chasin, who coached in the same soccer club as the architect, testified that the architect interacts with the children well and is a good coach. He also stated that he has never met the attorney.

Joan Hamel, the mother of one of the children's best friend, testified that the architect gets to the children's school functions early and videotapes the children. On the other hand, she stated that she once saw the attorney arrive late and read law books during the performance. Further, the architect is the one who usually picks up the children from her house; the attorney has only picked up the children approximately three times in the last four years. She testified that the architect is one of the few parents who stays at parties that the children attend. Moreover, the architect is the one who leads the Brownie troop, and at one meeting, one of the parties' children stated that the attorney is never home and does not read the Brownie's paper. Further, she described the architect as a "devoted" parent. Finally, she stated that all the children in the Brownie troop, including the parties' children, "adore" the architect.

Dulce del Castillo, one of the children's former pre-school teachers, testified that the architect constantly volunteered at the school. For example, the architect made repairs to the classroom, attended field trips, and participated in cooking and art activities. Whereas, the attorney's involvement was limited to dropping the children off at school eight to ten times during the school year.

Lynn Drittel, a school counselor, testified that the architect involved the children in the school's divorce group. Further, when she sent home questionnaires, only the architect's questionnaire was returned. Finally, she stated that the architect volunteered for the second grade self-esteem program.

David Harper, a fellow parent and sports coach, also testified. He stated that the architect is a good parent, a good caretaker, patient with the children, and involved in the children's daily activities. He also testified that the attorney was involved in the parent-child soccer games, even though the games were played in the early afternoon. The attorney also attended the Saturday games and the parent-child program. Further, he stated that the architect...