Muller v. Muller

964 So. 2d 732, 2007 WL 2188337
CourtDistrict Court of Appeal of Florida
DecidedAugust 1, 2007
Docket3D06-2700
StatusPublished
Cited by13 cases

This text of 964 So. 2d 732 (Muller v. Muller) 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
Muller v. Muller, 964 So. 2d 732, 2007 WL 2188337 (Fla. Ct. App. 2007).

Opinion

964 So.2d 732 (2007)

Ernesto MULLER, Appellant,
v.
Melonie R. MULLER, Appellee.

No. 3D06-2700.

District Court of Appeal of Florida, Third District.

August 1, 2007.
Rehearing and Rehearing Denied October 11, 2007.

*733 Jesus O. Cervantes, for appellant.

Lisa S. Walsh, Miami, for appellee.

Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.

Rehearing and Rehearing En Banc Denied October 11, 2007.

CORTIÑAS, Judge.

Ernesto Muller (the "Father") appeals from a final judgment of dissolution of marriage which granted Melonie Muller's (the "Mother") petition to relocate to Grand Junction, Colorado with their minor child. We reverse.

The parties were married in Grand Junction, Colorado in July 2002. Shortly thereafter, they moved to Miami, Florida. In April 2004, the minor child was born in Miami, Florida. In October 2004, the Father filed a petition for dissolution of marriage. The Father also filed a motion to compel the child's return to Miami from Grand Junction, Colorado on the ground that the Mother had taken the child without his consent or knowledge. The trial court ordered the Mother to return with the child and remain in Miami during the pendency of the divorce action. Subsequently, the Mother sought to relocate with the child to Grand Junction.

In September 2006, following an evidentiary hearing on the issue of relocation, the trial court entered a final judgment of dissolution of marriage. In its order, the trial court granted the Mother's petition for relocation. The Father's appeal follows.

We review a trial court's order regarding relocation under an abuse of discretion standard. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003)(citing Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001)). In reviewing the trial court's order, we must determine if there is substantial competent evidence to support the trial court's findings under section 61.13001(7), Florida Statutes (2006).[1]Id. Further, "we do not engage in reweighing the evidence and making value judgments that are appropriate for the trial judge." Id. (citing Flint v. Fortson, 744 So.2d 1217, 1218 (Fla. 4th DCA 1999)).

*734 Florida law does not recognize a presumption in favor of or against a primary residential parent seeking to relocate a child. See § 61.13001(7), Fla. Stat. (2006). Instead, in making a determination as to whether the primary residential parent may relocate with a child, section 61.13001(7) requires a trial court to consider the following factors:

(a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.
(d) The child's preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons of each parent or other person for seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or objecting other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Id.

After a thorough review of the entire record, we find that the trial court abused its discretion in granting the Mother's petition to relocate with the child to Grand Junction. Although the trial court noted each of the factors listed under section 61.13007(7) in its order, the record is devoid of corroborating facts supporting *735 nearly every subsection of the statute. Therefore, we find that the trial court erred in granting the Mother's petition for relocation. See Cecemski v. Cecemski, 954 So.2d 1227 (Fla. 2d DCA 2007)(reversing an order granting relocation because the trial court's findings were not supported by substantial competent evidence).

For example, with respect to the first factor, the trial court noted that the Mother was more involved in caring for the child as an infant and that the Father took a greater role when the child was a little older. The court also observed that the maternal grandparents are not employed while the paternal grandparents work. Without more, these facts do not constitute substantial competent evidence to support a finding that the proposed relocation would improve the nature, quality, extent of involvement, and duration of the child's relationship with the Mother and the Father or others.

Similarly, regarding the second factor, the trial court focused almost exclusively on the fact that the child would be cared for by the maternal grandmother in Colorado as opposed to receiving daycare services in Miami. The trial court did not consider the very young age of the child or any other impact the relocation will have on the child's physical, educational, and emotional development.

In considering the third factor, the trial court found that, despite the relocation, it would be feasible to foster a meaningful relationship between the Father and the child. However, the record clearly shows the hardships and complications of traveling between Miami and Grand Junction. For example, visitation in Grand Junction would require the father to purchase an airline ticket to Denver, which he cannot easily afford given his monthly net income of approximately $1,300. Moreover, the record shows that travel to Grand Junction entails a four-hour flight followed by a four-hour drive from Denver to Grand Junction.

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Bluebook (online)
964 So. 2d 732, 2007 WL 2188337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muller-v-muller-fladistctapp-2007.