D.M.J. v. A.J.T.

190 So. 3d 1129, 2016 WL 1718857, 2016 Fla. App. LEXIS 6541
CourtDistrict Court of Appeal of Florida
DecidedApril 29, 2016
DocketNos. 2D15-2918, 2D15-4068
StatusPublished
Cited by2 cases

This text of 190 So. 3d 1129 (D.M.J. v. A.J.T.) 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
D.M.J. v. A.J.T., 190 So. 3d 1129, 2016 WL 1718857, 2016 Fla. App. LEXIS 6541 (Fla. Ct. App. 2016).

Opinion

BLACK, Judge.

.D.M.J.1 (the Father) challenges various orders entered by the trial court following the final judgment of paternity. The Father contends, among other things, that the court failed to consider the statutory best interests of the child in entering the orders, on appeal. We agree and reverse.

■. A final judgment .of paternity was rendered..in July 2011 in .this. case. Incorporated into that final judgment were, a mediation agreement and a parenting plan. The parenting plan established a weekly rotating time-sharing schedule and provided that when the child became eligible for kindergarten the parents would revisit the issue of education and return to mediation if necessary. The parenting plan" was otherwise silent as to education. In-August 2015 A.J.T. (the Mother) filed a petition for an order granting modification of the final judgment of paternity regarding the parenting plan, time-sharing, and child support. The Mother alleged that the Father had moved “some twenty-five miles, one way, from where he resided at the time of the entry of the final judgment.” She claimed this was a substantial and material change in circumstances warranting mQdification. The Mother alleged that síie had to “drive an extra nine miles, one way, to meet the Father to ¿xchange the child.” “ ’ '

The Mother’s proposed parenting plan allowed her 305 nights with the child, as compared to the . prior 183, and increased the child support.obligation of the Father accordingly, The Mother’s plan also designated her as the ultimate decision maker as to education and nonemergency healthcare decisions.

After an evidentiary hearing, the court granted the' Mother’s petition,. The court approved the.Mother’s parenting plan, including the time-sharing schedule; designated her the ultimate decision maker as to education and nonemergency healthcare decisions; and ..named Hillsborough Sehpol A, the Mother’s preferred school, as the school ⅛ which, the child would enroll.2 The Father then filed a motion for,rehearing, which the court granted in part. An [1131]*1131amended order granting the Mother’s petition was entered.

The Father timely appealed the amended order and subsequently filed a motion for stay pending appeal. The Father alleged that the Mother was unable to enroll the child in Hillsborough School A as ordered by the court, that she falsely represented, the school to which , she was zoned, and that the Mother had unilaterally .enrolled the child in Hillsborough School B, a ■school not approved by the court. This court affirmed the denial of the stay but relinquished jurisdiction of the. appeal to allow the Father to file a motion for relief from judgment ora supplemental petition for modification based upon the impossibility of enrollment in the school designated in the amended final order. The Father’s motion was granted in part, and a supplemental final judgment of paternity was rendered by the trial court.3 In the order granting in part the- .Father’s motion to vacate the amended order, the court stated that the designation of Hillsborough School A was a mistake but that it was the court’s intention to order that the child’s school designation be based on the Mother’s address. The court then entered the supplemental final judgment of paternity to include the provision that the Mother’s residence should be used to détermine the child’s school designation. The Father filed a notice of appeal, and the two cases were consolidated here.4

On appeal, the Father argues that the evidence was insufficient to establish a substantial, material, ■■ and unanticipated change supporting modification of parental responsibility and time-sharing. He contends that the testimony at the hearing on the Mother’s petition established that at the time of the final judgment the Father’s address was in Pasco County and that he had not moved a substantial distance from that address. He also argues that the court’s order granting the Mother’s petition adopted the Mother’s proposed order without alteration and that the order contains unsupported findings. As to the supplemental final judgment, the Father argues that, the court erred in failing to hold an evidentiary hearing on the schooling issue where the court’s rationale in initially determining the child’s school designation included the quality of Hillsborough School A.

“[A] time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” Griffith v. Griffith, 133 So.3d 1184, 1186 (Fla. 2d DCA 2014) (alternation in original) (quoting § 61.13(3), Fla. Stat. (2012)). “It is well settled that- in order to modify a timeshar-ing plan there must be a substantial change in circumstances.” George v. Lull, 181 So.3d 538, 540 (Fla. 4th DCA 2015) (citing Wade v. Hirschman, 903 So.2d 928, [1132]*1132932 (Fla.2005)). And “the petitioning party has the extraordinary burden to prove the'substantial change in circumstances.” Id.

“In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location.” Halbert v. Morico, 27 So.3d 771, 772 (Fla. 2d DCA 2010). In Halbert, this court concluded that a forty-five-mile move was not a substantial change warranting modification. Id.; see also Ragle v. Ragle, 82 So.3d 109, 112 (Fla. 1st DCA 2011) (concluding that the court abused its discretion in modifying time-sharing where “[t]he crux of Ap-pellee’s request for modification is Appellant’s decision to move the children to a new home [twenty-eight] miles from their previous home”). The amended order granting the Mother’s petition does not make a finding that a substantial change has occurred. Nor does the court indicate that its findings and modification -of the time-sharing plan are based upon the Father’s move,- the only change alleged in the Mother’s petition. Cf. Griffith, 133 So.3d at 1186 (remanding for reconsideration where “the trial court did make a specific finding that there was a substantial change in circumstances; however,, neither the final order of modification nor the court’s oral pronouncement specifies what that substantial change is. Furthermore, there is nothing in the record to specifically suggest that the trial court considered the best interests of the children”).

We note that the Mother’s petition did not include the reservation of jurisdiction over the schooling issue as a basis for modification and that the court’s order does not indicate that the parties attempted -to mediate the issue as required by the original parenting plan. However, and despite the fact that we cannot agree with the trial court’s implicit finding that the Father’s move was substantial, the original parenting plan required the parties to address the schooling of the child once she became of school age.

Where the final judgment reserves jurisdiction to determine school enrollment and the parties are unable to agree on the minor child’s school, they are required to obtain a court order on the issue. Dickson v. Dickson, 169 So.3d 287, 289-90 (Fla. 5th DCA 2015). “In such a circumstance, the court must resolve the impasse by determining the .best interests of the child.” Id. (citing § 61.13(2)(c), (3), Fla. Stat. (2014)).

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Bluebook (online)
190 So. 3d 1129, 2016 WL 1718857, 2016 Fla. App. LEXIS 6541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dmj-v-ajt-fladistctapp-2016.