In re the Former Marriage of Franklin

38 Fla. Supp. 2d 116
CourtCircuit Court for the Judicial Circuits of Florida
DecidedDecember 15, 1989
DocketCase No. DR 85-12810
StatusPublished

This text of 38 Fla. Supp. 2d 116 (In re the Former Marriage of Franklin) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Former Marriage of Franklin, 38 Fla. Supp. 2d 116 (Fla. Super. Ct. 1989).

Opinion

OPINION OF THE COURT

ROM POWELL, Circuit Judge.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This case came on for trial on November 22, 1989, on the Former [117]*117Wife’s Supplemental Petition to modify Final Judgment, the Former Husband’s Counter-Supplemental Petition to Modify Final Judgment, and the Answers thereto.

On the evidence presented, I make the following findings of fact:

1. The Final Judgment, entered August 8, 1986, following a contested trial, provides for shared parenting of the minor child, Jason, now five years of age. The former wife was awarded primary residence of the child, with visitation by the former husband every Monday from four p.m. until eight p.m., every Wednesday from four p.m. until Thursday at nine a.m., and every Saturday from nine a.m. until Sunday at nine a.m. Although the Final Judgment did not contain a provision prohibiting removal of the child from the State of Florida, the parties have taken the position that a subsequent order of February 4, 1988, has the effect of modifying the Final Judgment to so provide.

2. Both the Former Husband and Former Wife are fit and proper parents, and genuine and close emotional ties exist between each of them and the child. There appears to be no acrimony or hostility existing between the parents.

3. The child is now five years of age. He was bom and has lived all of his life in Orlando, Florida, except for six months when the Former Wife took a temporary assignment in Texas with Court approval. The Former Wife was bom and raised in Orlando. Her parents live in Orlando. She has an aunt and three cousins residing in Jacksonville, and an aunt and cousins residing in New Smyrna Beach. The Former Husband was raised in Oralndo, having moved here when he was five years of age. He, his parents, three brothers and two sisters have continuously resided here. One of his brother has a son age seven. One of his sisters has two boys, ages two and three. The maternal and paternal extended families are close knit, have extensive contact with the child, and there is interaction between members of both families on an amicable basis.

4. The Former Husband has fully and continuously exercised all of his visitation rights, and has had the child on at least one extended occasion. He has paid two hundred dollars per month in child support on a regular basis, and has offered to provide money for private school for the child, which offer was declined by the Former Wife. The Former Husband makes an approximate gross annual income of twenty-five thousand dollars.

5. The initial and primary reason for the wife wanting to move to San Diego, California, was to marry her fiancee’ who lives there and is in business there. He was born and raised in Los Angeles and his [118]*118parents still reside there. He has grandparents and an aunt and uncle residing in San Diego. He is employed by an entertainment production company in San Diego at an annual gross salary of thirty-six thousand four hundred dollars plus some bonuses. Although he only has at present a verbal agreement with the owner of the company, he has an expectancy of greater income and responsibility as the company grows.

6. After deciding to marry, the Former Wife sought and obtained an offer of a position with Sea World of California located in San Diego. She currently works for Sea World of Orlando at an annual base salary of twenty-seven thousand five hundred dollars. The offer is for a base salary of thirty-five thousand dollars. Fifty percent of the difference in salary increase is for the cost of living adjustment since it is more expensive to reside in San Diego.

7. The benefits to Jason from the move would be the higher combined incomes of his mother and stepfather-to-be. Some of the increase in income, however, would be spent on the increased cost of living and transportation between California and Florida. There is no evidence that that school system is better in San Diego. There are more cultural and perhaps more recreational advantages there, and the dryer climate would be better for Jason’s asthma.

8. The Former Wife has proposed a revised visitation schedule of every Christmas, spring and summer vacations, and other times when she would visit her family in Orlando. This would necessitate driving two and a half hours to Los Angeles to put Jason on a four hour direct airplane flight at a cost of two hundred fifty to one thousand dollars depending upon when the flight was booked. She has offered to share these expenses with the Former Husband. She would faithfully comply with such schedule, if ordered.

9. The Former Wife testified at the trial that if she is not allowed to relocate with the child to California, she would remain in Florida, marry her fiancee’ and retain primary residential care of the child. Her fiancee’ testified that if this were the case, he would marry the Former Wife and move here. He also testified that he could find employment within his field here in Florida. If this were the case, there would be no material change of circumstances which would warrant a change of primary residential care to the Former Husband.

Having made the foregoing findings of fact, I now state the following conclusions of law:

A. There is no statute in Florida which prohibits the residential parent from relocating the residence of a child to another state. However, it has long been recognized that Florida courts have the [119]*119power to restrict the movement of child’s residence upon proper grounds shown. Giachetti v Giachetti, 416 So.2d 27 (Fla. 5th DCA 1987) .

B. Although the law on the issue of relocation has been rapidly developing in the district courts, the Florida Supreme Court has not yet written an opinion on this point.

C. The Third and Fourth District Courts of Appeal have adopted the New Jersey “real advantage” test set forth in D’Onofrio v D’Onofrio, 365 A.2d 27 (N.J. Ch. Div. 1976), affirmed, 365 A.2d 716 (N.J. App. Div. 1976), as amended in Cooper v Cooper, 491 A.2d 606 (N.J. 1984). See DeCamp v Hein, 541 So.2d 708 (Fla. 4th DCA 1989); Matilla v Matilla, 474 So.2d 306 (Fla. 3d DCA 1985); Kantor v Kantor, 14 FLW 1549, — So.2d — (Fla. 3d DCA 1989).

D. The First and Second District Courts of Appeal have not yet expressly adopted the New Jersey test, but have resolved the issue on a case-by-case basis, balancing the competing interests of the parents caused by this change of circumstance against the best interest of the child, but placing emphasis upon the importance of Florida’s statutory shared parenting provision which promote mutual parental involvement in decision making and frequent and continuing contact between the child and the non-residential parent. See e.g. Parker v Parker, 519 So.2d 673 (Fla. 1st DCA 1988), review dismissed, 531 So.2d 1354 (Fla. 1988) ; Warren v Warren, 475 So.2d 736 (Fla. 2d DCA 1985) (Grimes, J.)

E. Our own Fifth District Court of Appeal, by whose opinions I am bound by stare decisis has taken the same approach as that of the First and Second Districts. Giachetti v Giachetti, supra; Jones v Verba, 513 So.2d 1080 (Fla. 5th DCA 1987); Cole v Cole, 530 So.2d 467 (Fla. 5th DCA 1988). The Court in Cole

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DeCamp v. Hein
541 So. 2d 708 (District Court of Appeal of Florida, 1989)
D'Onofrio v. D'Onofrio
365 A.2d 27 (New Jersey Superior Court App Division, 1976)
Cole v. Cole
530 So. 2d 467 (District Court of Appeal of Florida, 1988)
Jones v. Vrba
513 So. 2d 1080 (District Court of Appeal of Florida, 1987)
Parker v. Parker
519 So. 2d 673 (District Court of Appeal of Florida, 1988)
Matilla v. Matilla
474 So. 2d 306 (District Court of Appeal of Florida, 1985)
Cooper v. Cooper
491 A.2d 606 (Supreme Court of New Jersey, 1984)
Warren v. Warren
475 So. 2d 736 (District Court of Appeal of Florida, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
38 Fla. Supp. 2d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-former-marriage-of-franklin-flacirct-1989.