Albanese v. Albanese

135 So. 3d 532, 2014 WL 1325667, 2014 Fla. App. LEXIS 5012
CourtDistrict Court of Appeal of Florida
DecidedApril 4, 2014
DocketNo. 5D13-4469
StatusPublished

This text of 135 So. 3d 532 (Albanese v. Albanese) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albanese v. Albanese, 135 So. 3d 532, 2014 WL 1325667, 2014 Fla. App. LEXIS 5012 (Fla. Ct. App. 2014).

Opinion

EVANDER, J.

Sandra Albanese (Wife) appeals from a temporary order granting Maxwell Alba-nese (Husband) permission to have the parties’ minor children relocate with him to the New York City area. Wife argues that not only does the trial court’s order [533]*533fail to include a finding that relocation would be in the children’s best interest, but that there was a lack of competent, substantial evidence to support such a finding. We agree and, accordingly, reverse.

The parties separated on or about February 1, 2013, at which time Husband filed his petition for dissolution of marriage. On April 17, 2013, the trial court entered an agreed order providing for the parties to have equal time sharing with their two sons (ages six and five). Three months later, Husband filed an amended petition for dissolution of marriage seeking, inter alia, permission to relocate his residence with the parties’ minor children to the New York City area.1 In support of his request, Husband alleged that he was a student in good standing at the Touro College of Pharmacy in New York City and that he desired to return to school for the semester commencing in January 2014. Husband further alleged that the relocation would be in the best interest of the minor children because he would “be able to provide for all of the minor children’s needs and furnish an excellent elementary education for the children” and would “be able to complete his own pharmaceutical education, thereby greatly increasing his earning capacity which would translate to significant economic benefits for the minor children.”

Wife filed a detañed written objection to Husband’s relocation request and the matter proceeded to a temporary hearing on November 12, 2013.

Both parties testified at the hearing. Suffice it to say, their testimony conflicted on numerous points. The facts as set forth below are taken almost exclusively from Husband’s testimony.

In August 2012, Husband moved to New York City to attend Touro College of Pharmacy. Husband successfully completed the first semester of his studies before returning to Florida in February 2013 “to attend to his children’s needs.” He desired to return to Touro to complete the school’s pharmacy program. His anticipated graduation date would be May 2017. Husband’s plan was to live with his two sons in a single-family house in a middle-class neighborhood in East Rutherford, New Jersey. Husband testified that the children would attend Lincoln Elementary School and that he had spoken with the principal once and “by e-mail with the prospective teachers once.” He had also “looked at” the school online. Husband did not intend to obtain employment while attending Touro so that he would be able to properly care for the chüdren. His mother, who lived near the parties’ marital residence in Brevard County, had agreed to move to New Jersey to assist Husband, when needed, in caring for the children. Notwithstanding his intent to not seek employment, Husband advised the trial court that he would be willing to pay all transportation costs for the children to spend time with their mother in the summer, during spring and winter school breaks, and on extended holiday weekends. His testimony reflected that he would pay for his living expenses, and the children’s transportation costs, from his $720/month VA benefits and his student loan proceeds.2 Husband further believed that relocation was necessary to improve his economic circumstances.

Husband went on to testify that the children could experience museums, histor[534]*534ical monuments, theaters, plays, shows, parks, and major sporting events in the New York City area. Although Husband opined that he believed relocation would be in the best interest of the children, he provided little or no evidence as to the children’s educational, recreational, and cultural opportunities in Florida. For example, there was no evidence reflecting that the children would receive a better education in East Rutherford, New Jersey than they had, or would receive in Brevard County.

Additionally, Husband provided little or no evidence as to the strength of the bond between Wife and the children and the potential emotional effect on the children from the proposed relocation. As a result, Wife’s testimony on these points was largely uncontroverted. Wife testified that she had a close, loving relationship with her sons, and that relocation would cause the children great emotional harm.

In addition to receiving live testimony from the parties and Wife’s adult daughter, the parties agreed that the trial court could consider the custodial evaluation report prepared by Dr. Robert Lehton. It would be an understatement to say that Dr. Lehton was critical of both parties’ behavior. Indeed, he opined that their divorce was “the most adversarial, chaotic, and destructive process between a couple that [he had] participated as an examiner in the last 43 years.” Dr. Lehton found that neither parent was capable of demonstrating the disposition to honor a time-sharing schedule, that the environments in both households was “chaotic,” and that both parents lacked veracity in their statements and history. Dr. Lehton did conclude that Husband was more likely to provide structure in the children’s lives and less likely to delegate parenting responsibilities to third persons. Dr. Lehton believed that one of the two children had a closer relationship with Husband than Wife, but nevertheless recommended an equal time-sharing arrangement. He also, with little elaboration, recommended against relocation of the children at the present time.

On December 4, 2013, the trial court entered an order granting Husband’s request to temporarily relocate with the minor children. In its order, the trial court found that the children clearly had a bond with each of their parents, but that the children had been affected negatively by their parents’ combative and adversarial divorce action. The trial court acknowledged that relocation would change the relationship between the boys and their mother but found that Husband was likely to comply with a substitute time-sharing arrangement.3 In granting Husband’s relocation request, the court stated:

The relocation, if permitted, will allow the father to continue his interrupted education. He has about three and a half years more to complete his pharmacy degree. Upon completion, his earning capacity will be greatly enhanced. The father’s school schedule would be similar to the children’s school schedule, which would allow him to spend significant time assisting them with their homework, and provide the children with a consistent routine in their household.
The undisputed evidence indicates that the Father began attending pharmacy school in New York in the fall of 2012. He returned home to Florida on several occasions in the fall, and then took a leave of absence from the school [535]*535for the next term based on the turmoil that was happening in the parties’ marriage and in their home. He testified that he desired to relocate so that he could resume his studies, and that he desired to have the boys relocate with him so that he can be available to them on a daily basis. The court finds that this relocation is sought in good faith.

The trial court did acknowledge that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
135 So. 3d 532, 2014 WL 1325667, 2014 Fla. App. LEXIS 5012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albanese-v-albanese-fladistctapp-2014.