Knipe v. Knipe

840 So. 2d 335, 2003 WL 354904
CourtDistrict Court of Appeal of Florida
DecidedFebruary 19, 2003
Docket4D01-4148, 4D02-1347, 4D02-2296
StatusPublished
Cited by9 cases

This text of 840 So. 2d 335 (Knipe v. Knipe) 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
Knipe v. Knipe, 840 So. 2d 335, 2003 WL 354904 (Fla. Ct. App. 2003).

Opinion

840 So.2d 335 (2003)

Ray J. KNIPE, Appellant,
v.
Laura KNIPE, Appellee.

Nos. 4D01-4148, 4D02-1347, 4D02-2296.

District Court of Appeal of Florida, Fourth District.

February 19, 2003.
Rehearing Denied April 16, 2003.

*336 Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, and Richard Barlow of Kibbey & Barlow, Stuart, for appellant.

Denise S. Calegan Desmond of Joel M. Weissman, P.A., Doreen M. Yaffa, P.A., and Denise Calegan Desmond, P.A., West Palm Beach, for appellee.

GROSS, J.

The primary issue we address in this appeal is whether the evidence supported post-dissolution modifications short of a change in primary physical custody where the parents failed miserably at sharing parental responsibility. We affirm the trial judge on this issue.

The trial court entered an amended final judgment of dissolution in October, 1998. The judgment characterized the proceeding as "bitterly and fiercely litigated by the parties." The judgment awarded the father primary residential custody of the couple's two children, finding that he was "more likely to facilitate and encourage a close relationship between the minor children and the Former Wife."

Five factors were significant to the court's custody decision in the amended final judgment. First, the mother asserted that the children had been sexually abused while in their father's custody, "[w]ithout any evidence of sexual abuse." Second, in a dissolution of marriage proceeding with a prior husband, the mother had made allegations that the child of that marriage had been sexually abused by the prior husband and members of his family. *337 Although the prior husband was arrested and jailed, the prosecutor refused to file formal charges. However, "[a]s a result of the financial and emotional strain put on him by the allegations of sexual abuse," the prior husband agreed to "surrender custody" of the child to the former wife and agreed not to see the child. At the time of the trial, the son from this prior marriage was seventeen, but he had no relationship or contact with his father. Third, the court found that the mother had had a "number of relationships with men." The breakup of these relationships ended her son's relationships with the men. As a result, the trial judge in this case concluded that the father could "provide a more stable and satisfactory environment for the minor children." Fourth, the mother had caused the father to be arrested and obtained a domestic violence injunction against him for which "there was an insufficient basis." Fifth, the court noted that the mother was unable to communicate with the former husband's family.

The final judgment declared that the mother would have shared parental responsibility. It also provided that she would have "reasonable and liberal visitation with the minor children, no less than as is set out in the attached visitation schedule for the Nineteenth Judicial Circuit." Both parents were "encouraged to promote and allow telephone contact between the minor children and the other parent."

This court affirmed the final judgment. See Knipe v. Knipe, 731 So.2d 161 (Fla. 4th DCA 1999). Soon thereafter, the mother filed a petition for modification. The modification litigation was as contentious and bitter as the original dissolution proceeding. Although the petition originally sought a modification of the children's primary residence, the mother abandoned that count at the beginning of the trial. She asserted that her true goal was to increase her visitation.

At the hearing, the mother testified that, despite the order of liberal and reasonable visitation, she was not accorded any additional overnights beyond the minimum set forth in the visitation schedule. Her telephone contact with the children had been severely limited. The father excluded her from decisions concerning the children's schooling. To curtail her time with the children, the husband threatened that if she did not stop volunteering at the children's school, he would remove them from that school. The father carried out the threat two weeks later and took them out of the school. The mother hired a private investigator to find out where the children were enrolled.

Dr. Stephen Alexander, a psychologist, testified as an expert witness for the mother. He described the situation between the parents as "extremely acrimonious" and "perpetually combative." He recommended overnight visitation from after school on Friday to the beginning of school on Monday morning. He opined that such visitation would allow the mother to participate in school and homework. Also, dropoffs at school would cut down on the contact between the parents, thereby lessening the opportunities for hostile exchanges witnessed by the children.

The existing visitation plan gave the mother overnights on Wednesdays during the weeks when she did not have weekend visitation. Dr. Alexander also opined that Thursday nights were more appropriate for overnight visitation; the non-custodial parent then had a four-day block, which allowed that parent to more fully participate in the child's life. Dr. Alexander said that the parents were probably unable to co-parent and to share parental responsibility as contemplated in the final judgment. He indicated that there was little *338 probability that the parents would be able to set aside their differences in the best interests of the children.

Dr. Mark Agresti, a psychiatrist, testified that the children were "starved for their mother" and that they would be adversely affected if they did not spend more time with her. He opined that where children do not spend adequate time with their mother, their development is compromised.

Pamela Black, a clinical social worker, whom the court had appointed to do a home study, said that the former wife functioned only as a "weekend parent." She stated that the children do not have the type of time with the mother that they need.

After the hearing, the trial judge made extensive findings:

9. The activities of the parties in this bitter divorce proceeding merely set the stage for what was to occur after the entry of the final judgment.
10. Under the terms of the temporary order, the Former Wife had been the primary residential parent, but once the final judgment was entered the Former Husband then became the primary residential parent, and the day following the entry of the final judgment ... the Former Husband took the police with him to gain custody of the children.
11. The following day, a Friday, the first weekend after the Final Judgment was entered, the Former Wife showed up at the Former Husband's home with the police to enforce the visitation arrangements.
12. What follows is a sampling of the parties' actions following the entry of the final judgment. It's not meant to be all-inclusive nor is it [designed] to show that one party is worse than the other.
a. The father enrolled the children in kindergarten. He listed his family members as emergency contacts, but did not list the Mother as an emergency contact.
b. The father sent copies of the divorce decree and the home study to the children's elementary school for the purpose of winning them over to his side.
c. The father's family, his parents and siblings, united on his behalf and campaigned against the mother.
d. On the day the appeal was affirmed by the District Court, a party was held at the father's home.

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Bluebook (online)
840 So. 2d 335, 2003 WL 354904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knipe-v-knipe-fladistctapp-2003.