Mulligan v. Mulligan

41 Fla. Supp. 2d 202
CourtCircuit Court for the Judicial Circuits of Florida
DecidedApril 4, 1990
DocketCase No. 86-930-CA
StatusPublished

This text of 41 Fla. Supp. 2d 202 (Mulligan v. Mulligan) 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
Mulligan v. Mulligan, 41 Fla. Supp. 2d 202 (Fla. Super. Ct. 1990).

Opinion

OPINION OF THE COURT

RAYMOND T. McNEAL, Circuit Judge.

ORDER DENYING PETITION FOR MODIFICATION

Petitioner, Elizabeth Mulligan, filed a Petition for Modification requesting that she be allowed to remove the minor children permanently from the State of Florida to her anticipated new home in California. Petitioner, who recently graduated from law school and who has taken the Florida Bar exam, plans to marry a California attorney and move permanently to that state. Respondent, Kevin Mulligan, objected to the move contending that the move is not in the children’s best interests because of the very close personal relationship he enjoys with them. The court finds that the move is not in the [203]*203children’s best interest so the petition is denied. Because petitioner has not married or moved, Respondent’s counter-petition requesting a change in custody is not ripe for a decision and will remain pending.

Petitioner and Respondent were divorced August 14, 1986. The Property Settlement Agreement and Addendum entered into on July 15, 1986 and incorporated into the Final Judgment of Dissolution of Marriage, contained the parties’ understanding of shared parental responsibility and provided that “neither party shall remove the children from the State of Florida on a permanent basis without prior order of this court.” Such an agreement is consistent with the concept of shared parental responsibility allowing both parents to “retain full parental rights and responsibilities with respect to their child.” Fla. Stat. § 61.046(11) (1989).

Before the court can modify this provision, it must find that the proposed move is in the best interests of the Mulligan children. Deciding the children’s best interest requires an analysis of all of the factors affecting the welfare and interests of the child and the specific criteria set forth in Fla. Stat. § 61.13(3) (1989). Stamm v Stamm, 489 So.2d 851 (Fla. 5th DCA 1986). The factors listed in Fla. Stat. §61.13(3) (1989) are:

(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing between the parents and the child.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care, . . . and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed marital home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.

In addition to these factors, many courts apply the reasoning in D’Onofrio v D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (Ch. Div.), aff'd, 365 A.2d 716 (1976) to determine whether the custodial parent should be permitted to relocate:

1. The likelihood of the move improving the general quality of life for both the primary residential spouse and the children.
[204]*2042. The integrity of the motives for seeking the move to insure it is not done for the express purpose of defeating visitation.
3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. That substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent.

To this list, the Fourth District Court of Appeals has added:

5. That the cost of transportation is financially affordable by one or both of the parents.
6. That the move is in the best interest of the children.

DeCamp v Hein, 542 So.2d 708, 711 (Fla. 4th DCA 1989).

The sixth requirement is clearly the touchstone approved by the Fifth District Court of Appeals in Giachetti v Giachetti, 416 So.2d 27 (Fla. 5th DCA 1982). In addition to the six factors applied by Judge Gavin Letts in DeCamp, it is important to consider the parties’ agreement providing restrictions on moving and to consider the public policy of Florida favoring shared parental responsibility. Cole v Cole, 530 So.2d 467 (Fla. 5th DCA 1988).

Giachetti also requires a custodial parent seeking removal to show a material change in circumstances necessitating the modification. Id. at 29. In the instant case Mrs. Mulligan has not remarried and has not relocated to the state of California. Nevertheless, the court finds that her anticipated move and imminent marriage to a California lawyer is sufficient to require the court to examine if such a move would be in the best interests of the children. In cases where the Final Judgment of Dissolution of Marriage requires a court order to remove a child from the jurisdiction of the court, such application prior to the actual change in circumstances is not only authorized, but prudent.

GENERAL QUALITY OF LIFE

Although Mrs. Mulligan testified that the quality of life will be improved for her and the children, the only objective criteria she could point to was the ability of her future husband to support her so she could work part-time, eliminating the need to leave the children in Day Care and allowing her to use her income to provide for visitation by the natural father. She adds that because she will be happier, the children will be happier. See e.g., In Re: Marriage of Burgham, 86 Ill. App. 2d 341, 408 N.E. 37 (Ill. 1980). She does not have a job and has not taken the California Bar exam. The only reason for the move is her desire to be with the man she loves. See, Cole at 468.

[205]*205The children have been disrupted once by the dissolution of marriage and again by their mother’s unplanned move to St. Petersburg, Florida. Analyzing objective criteria, it does not appear that the children’s quality of life will be improved by moving to Los Angeles, California, 3000 miles away from their father, their extended family, their church and their friends.

MOTIVE FOR THE MOVE

Mr. Mulligan does not contend that the move is being made to defeat his visitation rights although Mrs. Mulligan has made this threat in the past. The planned move is insensitive to Mr. Mulligan’s right to visit with his children and to be involved in their lives. Since her Petition for Modification Mrs. Mulligan has been extremely cooperative regarding visitation but this has not always been the case.

FLAUNTING THE FLORIDA COURT

The past history of this case raises concerns that Mrs. Mulligan will in fact the orders of this court. Previously, the court found that she had violated the provisions relating to shared parental responsibility by interfering with the father’s right of free access to the children provided by Florida law.

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Related

State v. Lozard
542 So. 2d 707 (Louisiana Court of Appeal, 1989)
D'Onofrio v. D'Onofrio
365 A.2d 27 (New Jersey Superior Court App Division, 1976)
Giachetti v. Giachetti
416 So. 2d 27 (District Court of Appeal of Florida, 1982)
Cole v. Cole
530 So. 2d 467 (District Court of Appeal of Florida, 1988)
City of Chicago v. King
230 N.E.2d 41 (Appellate Court of Illinois, 1967)
Stamm v. Stamm
489 So. 2d 851 (District Court of Appeal of Florida, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
41 Fla. Supp. 2d 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulligan-v-mulligan-flacirct-1990.