Zak v. Zak, 92-04050
| Decision Date | 05 November 1993 |
| Docket Number | No. 92-04050,92-04050 |
| Citation | 629 So.2d 187 |
| Parties | 18 Fla. L. Weekly D2358 Linda K. ZAK, Appellant, v. Paul J. ZAK, Appellee. |
| Court | Florida District Court of Appeals |
Stevan T. Northcutt, Levine, Hirsch, Segall & Northcutt, P.A., Tampa, for appellant.
Catherine M. Catlin, Langford, Hill, Trybus & Whalen, P.A., Tampa, for appellee.
Linda Zak (wife) appeals the trial court's final order of dissolution. We agree that the trial court erred by restricting the area of the children's residence, in establishing the child support obligations of Paul Zak (husband), and by failing to award the wife statutory interest on installment payments that she is to receive from the husband.
The Zaks were married while both were in medical school in Chicago. There are two children, born December 1990 and February 1992. The wife is a neonatologist, and the husband is an orthopedic surgeon. The wife completed her training before the couple moved to Brandon in order for the husband to complete a one-year fellowship. The wife found employment in a private practice, while the husband completed his training.
The husband was dissatisfied with opportunities in Tampa and decided to accept a position for $150,000 a year in Orlando. Unable to find an acceptable position in Orlando, the wife started a solo practice which was very successful. The husband, again dissatisfied with his position, decided to start a private practice in St. Petersburg. The best position the wife could find in St. Petersburg was a part-time position at a children's hospital which paid $60,000 per year and offered no benefits other than malpractice insurance. The wife closed her Orlando practice and moved to St. Petersburg in November 1991.
The week after the birth of their second child in February 1992, the husband petitioned for dissolution of the marriage. The husband admitted that he had developed and maintained a relationship with another woman since May 1991. The husband, unsuccessful in his private practice, accepted a position with Florida Spine Institute in Pinellas County. At the time of the final hearing, the wife was earning $60,000 per year and the husband was earning $200,000 per year, soon to increase to $250,000.
The wife requested that the court allow her to move to Chicago with the children. Loyola Medical School had offered her a position which provided her with additional benefits including payment of dues and medical literature subscriptions, paid vacation, a pension plan, health insurance, and college tuition for the children. The position also included a study program to aid her in achieving board certification, and it offered her part-time work which would aid her in caring for the children. In Chicago the children would be near the husband's family who remain on good terms with the wife. Additionally, the wife would be closer to her family who live in Iowa. The wife testified that St. Petersburg offers only one Level III neonatology unit, whereas Chicago has over six such units which provide the wife with more opportunities. The husband sought to keep the children within the immediate area to prevent his visitation from being frustrated. Both parties called expert witnesses who testified regarding the best type of visitation that these very young children needed with their father.
The trial court's order of dissolution encompassed many issues. We conclude three of those findings were error. First, the trial court erred in restricting the children's residence to no farther than a two-hour drive from St. Petersburg until the youngest child reached age three. Both the supreme court, in Mize v. Mize, 621 So.2d 417 (Fla.1993), and this court, in Lenders v. Durham, 564 So.2d 1186 (Fla. 2d DCA 1990), recognize a multi-factor test for deciding issues of residency. Those factors are:
1. Whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children.
2. Whether the motive for seeking the move is for the express purpose of defeating visitation.
3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the...
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