Hamilton v. Hamilton

922 So. 2d 263, 2006 WL 197153
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 2006
Docket2D04-1105
StatusPublished
Cited by1 cases

This text of 922 So. 2d 263 (Hamilton v. Hamilton) 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
Hamilton v. Hamilton, 922 So. 2d 263, 2006 WL 197153 (Fla. Ct. App. 2006).

Opinion

922 So.2d 263 (2006)

John M. HAMILTON, Jr., Appellant,
v.
Grace H. HAMILTON, Appellee.

No. 2D04-1105.

District Court of Appeal of Florida, Second District.

January 27, 2006.
Rehearing Denied March 16, 2006.

Philip A. McLeod, St. Petersburg, and Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami, for Appellant.

Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, and William L. Penrose, St. Petersburg, for Appellee.

NORTHCUTT, Judge.

John Hamilton appeals the judgment dissolving his marriage to Grace Hamilton. He challenges only the circuit court's decision concerning custody of the parties' young daughter. We reverse the final judgment insofar as it placed primary residential responsibility for the child with Mrs. Hamilton. We affirm the judgment in all other respects.

The Hamiltons both had been married previously and had children by their former spouses. They wed in June 1997. From its early days the parties' marriage was hampered by financial difficulties and trouble blending the two families. Things were further complicated by Mr. Hamilton's 80 — to 100-hour work weeks. Mrs. Hamilton, who stayed home to maintain the household, contributed her own difficulties *264 to the mix: she was a recovering alcoholic, she had a mild bipolar disorder, and one of her sons was schizophrenic. The parties' daughter was born in August 1998.

Sometime in 2000, Mrs. Hamilton began to deteriorate. After six years of sobriety, she started drinking again. Things came to a head one day in December of that year, when she declared that she no longer wanted to live. She told Mr. Hamilton that she "just want[ed] to go away," and asked him to take care of the children. Mr. Hamilton immediately took a sixty-day leave of absence from his job to stay home and tend Mrs. Hamilton and the family. When he returned to work in March 2001, he reduced his work schedule to forty or forty-five hours per week.

One day in February 2002 Mr. Hamilton arrived home to find Mrs. Hamilton passed out on the floor, unconscious from an aspirin overdose. The parties' daughter, then three and one-half years old, was asleep on a couch a couple of feet away. Thereafter, in April 2002 Mrs. Hamilton voluntarily entered residential treatment for her substance abuse and psychiatric disorder. During her inpatient stay, Mr. Hamilton served her with his petition for dissolution. From approximately February 2002 until the final dissolution judgment was entered nearly two years later, Mr. Hamilton was his daughter's primary caretaker.

The final hearing took place in November 2003. The court heard considerable testimony about each party's relative suitability as primary residential parent. Not surprisingly, much of the evidence concerned Mrs. Hamilton's substance abuse problems and her recovery. Everyone agreed that she had made good progress in coping with her alcoholism. But the evidence was in conflict about the period of abstinence necessary to predict her likelihood of recidivism. One expert testified that two to five years of sobriety is a good indicator of success; another expert opined that the first year of sobriety is critical, after which there is a significant drop in relapses. Several witnesses also discussed the effect Mrs. Hamilton's schizophrenic son might have on the parties' daughter.[1]

In reaching its decision regarding permanent primary residential responsibility, the circuit court analyzed the factors set forth in section 61.13(3), Florida Statutes (2003). In its final judgment the court made three relatively minor negative findings concerning Mr. Hamilton. First, during a financially tight period in the past, he had allowed the family's medical insurance to lapse. See § 61.13(3)(c). But it was undisputed that the insurance had been reinstated, and no one suggested that the lapse had caused the child any harm. Second, the court disapproved of Mr. Hamilton's failure to assist Mrs. Hamilton with housekeeping chores. See § 61.13(3)(l).[2] Finally, the court noted that Mr. Hamilton tended to acquiesce to Mrs. Hamilton's wishes. See § 61.13(3)(m).

The court found that all the other statutory factors either were equal as to both parties or favored Mr. Hamilton.[3] For example, the court noted that Mr. Hamilton's family "has a much broader and stronger local presence." See *265 § 61.13(3)(i). The court found that both parties were loving parents who were interested in their daughter's welfare, that the child had a loving relationship with both, that either would provide a stable and loving home, that both had had significant responsibility for their daughter, and that both would foster a relationship between the child and the noncustodial parent. See § 61.13(3)(a), (b), (e), (j).

The court's analysis of the statutory factors reflected that it had serious reservations about Mrs. Hamilton's suitability as a custodial parent. Under the "moral fitness" factor, § 61.13(3)(f), the court discussed Mrs. Hamilton's alcoholism.[4] Although she had successfully maintained sobriety since her treatment, the court wrote, it shared the "concerns of [Mr. Hamilton] and all the testifying experts that any relapse by the [mother] would be detrimental to her and her daughter and would be a significant factor in evaluating her continuing fitness as a parent with primary residential responsibility." In the "mental health" portion of its evaluation, § 61.13(3)(g), the court also observed that Mrs. Hamilton was diagnosed with bipolar disease and had been prescribed psychotropic medications. The court warned that "her continuing compliance with all prescribed medications and therapies would be an absolute requirement for her continuing parental responsibility." Concerning "evidence of domestic violence or child abuse," § 61.13(3)(l), the court found that Mrs. Hamilton had neglected the child before she entered rehabilitation, but it determined that this factor was no longer significant, "as long as the sobriety continues."

In its discussion of "other relevant factors," § 61.13(3)(m), the circuit court expressed respect for Mr. Hamilton's assumption of responsibility for the child during Mrs. Hamilton's periods of "lessened capacity." But the court observed that "nonetheless, it is clear that Mrs. Hamilton had primary responsibility for the child while Mr. Hamilton worked extensively outside the home." Were it not for Mrs. Hamilton's alcoholism, the court wrote, "it can be presumed that that situation would have continued."

Beyond that, the court noted that it gave little weight to the opinion of Herbert Goldstein, Ph.D., who, by stipulation of the parties, had conducted psychological evaluations and made recommendations about the Hamiltons' respective parenting abilities. Dr. Goldstein believed that Mr. Hamilton should be the custodial parent for various reasons, including that he was stable, loyal, considerate, perceptive, and concerned, and that he had the characteristics of a good primary parent. Dr. Goldstein had even considered suggesting that Mr. Hamilton be granted sole parental responsibility. In the court's analysis of the mental health factor, § 61.13(3)(g), it acknowledged Dr. Goldstein's testimony that Mr. Hamilton was "psychologically more well adjusted" than Mrs. Hamilton.

Notwithstanding that the parties themselves chose Dr. Goldstein, the court disagreed with some of his methods, specifically his decision to include psychological profiles of people sharing Mrs. Hamilton's personality traits without specifically applying the profiles to her.

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Bluebook (online)
922 So. 2d 263, 2006 WL 197153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-hamilton-fladistctapp-2006.