Hull v. Hull

273 So. 3d 1135
CourtDistrict Court of Appeal of Florida
DecidedMay 31, 2019
DocketCase No. 5D18-1517
StatusPublished
Cited by4 cases

This text of 273 So. 3d 1135 (Hull v. Hull) 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
Hull v. Hull, 273 So. 3d 1135 (Fla. Ct. App. 2019).

Opinion

LAMBERT, J.

Adam Hull ("Former Husband") appeals the supplemental final judgment denying his petition to relocate to Oregon with his three minor children that he shares with his ex-wife, Autumn Sexton Hull ("Former Wife").1 We affirm.

The parties' marriage was dissolved in June 2014. The final judgment incorporated a mediated settlement agreement executed by the parties, which included a parenting plan outlining their parental responsibilities and time-sharing with the children.

In February 2017, Former Husband was residing in Volusia County when he filed the instant petition under section 61.13001, Florida Statutes (2017), to allow him and the children to relocate to a forty-acre farm in Eugene, Oregon, beginning in April 2017. At the time, the children were residing with Former Wife in Palm Coast, Florida, and Former Husband's time-sharing included a midweek dinner every week, alternate weekends, two seven-day blocks of time during the children's summer vacation, and evenly-split holidays. Former Husband alleged that it would be in the best interest of the children to relocate with him to Oregon because it would provide the children "with a stable household, safe community, increased household income, superior schooling, [and] a wholesome and more natural lifestyle." He also requested in his petition that the current time-sharing plan be modified so that Former Wife's time-sharing would now "follow the Volusia County Long Distance Parenting Plan."2 Former Wife timely filed an objection to the proposed relocation. See § 61.13001(5), Fla. Stat. (2017).

The trial court's task in a relocation proceeding is to decide whether the requested relocation is in the best interest of the children. Chalmers v. Chalmers , 259 So.3d 878, 879 (Fla. 4th DCA 2018) (citing Rossman v. Profera , 67 So.3d 363, 365 (Fla. 4th DCA 2011) ). The court begins with no presumption in favor of or against a parent's request to relocate with the child, even when the move would materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent. See § 61.13001(7), Fla. Stat. (2017). In determining the best interest of the children, the court must consider and evaluate eleven separate factors set forth in section 61.13001(7)(a)-(k), with the last factor being described as "[a]ny other factor affecting the best interest of the child or as set forth in [section] 61.13," which *1137itself separately lists twenty factors regarding the best interest of a child. See § 61.13(3)(a)-(t), Fla. Stat. (2017) ; Buschor v. Buschor , 252 So.3d 833, 835 (Fla. 5th DCA 2018).

A three-day trial on the parties' respective petitions was held in February 2018. By the time of trial, Former Husband had already voluntarily relocated to Oregon without the children. Both parties were given a full and fair opportunity at trial to present their evidence, and they both submitted written closing arguments to the court post-trial. In its detailed supplemental final judgment, the trial court addressed each factor under section 61.13001, as well as the twenty factors described in section 61.13, and specifically found that after weighing all of the factors in section 61.13001, it was not in the children's best interest for Former Husband and the children to relocate to Oregon. Although it acknowledged in its final judgment that Former Husband intended to remain in Oregon, regardless of the outcome of the case, the court declined to modify Former Husband's present time-sharing schedule because he had not separately filed a supplemental petition to modify time-sharing under section 61.13.

Former Husband's primary argument in this appeal is that the trial court erred as a matter of law in determining that absent his filing a petition or a count to modify timesharing under section 61.13, it lacked the authority under section 61.13001 to adjust his time-sharing schedule "to make it geographically viable" to accommodate his relocation to Oregon. Our review of a trial court's interpretation and application of the relocation statute is de novo. Brooks v. Brooks , 164 So.3d 162, 163-64 (Fla. 2d DCA 2015) (citing B.Y. v. Dep't of Child. & Fams. , 887 So.2d 1253, 1255 (Fla. 2004) ). We, however, see the dispositive question to be whether a parent who was unsuccessful in showing under section 61.13001 that his relocation is in the best interests of the minor children is nevertheless entitled to a modification of a previously agreed upon time-sharing schedule when the parent has voluntarily relocated without court permission. We look to the plain language of this statute for our answer.

Unlike earlier versions of the statute that focused on the relocation of the principal residence of the child,3 the term "relocation" under section 61.13001 is now defined to mean a change in the location of the principal residence of a parent to a new location at least fifty miles away from his or her principal place of residence at the time of the last order establishing *1138time-sharing. § 61.13001(1)(e), Fla. Stat. (2017). "Parent" means any person so named in a court order or express written agreement or who is reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child. § 61.13001(1)(d), Fla. Stat. (2017). Thus, based upon this present statutory language, and, as explained by our sister court, a parent without the majority of the time-sharing with the child must still petition the court for permission to relocate his or her residence when the proposed relocation will be fifty or more miles away, Brooks , 164 So.3d at 164-65, with the court to decide whether the relocation of the parent is in the best interest of the child.4

Pertinent here, section 61.13001 provides that, if relocation is approved , the trial court has the authority and discretion to order or modify time-sharing, contact, access, telephone, internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent, if financially affordable and in the best interest of the child. § 61.13001(9), Fla. Stat. (2017). Former Husband, in fact, requested that the court modify time-sharing for Former Wife, if his petition was granted. This statute, however, makes no provision for the trial court to modify time-sharing when the parent's relocation is not approved because it was not in the children's best interest, as happened here.

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Bluebook (online)
273 So. 3d 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-hull-fladistctapp-2019.