Ragle v. Ragle

82 So. 3d 109, 2011 Fla. App. LEXIS 12738, 2011 WL 3558156
CourtDistrict Court of Appeal of Florida
DecidedAugust 15, 2011
Docket1D10-5518
StatusPublished
Cited by14 cases

This text of 82 So. 3d 109 (Ragle v. Ragle) 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
Ragle v. Ragle, 82 So. 3d 109, 2011 Fla. App. LEXIS 12738, 2011 WL 3558156 (Fla. Ct. App. 2011).

Opinions

THOMAS, J.

Appellant/Former Husband appeals the lower court’s order modifying primary residential custody of the parties’ minor children, the imputation of minimum wage income to Appellee/Former Wife, and denial of his motion for contempt. We reverse as to the first issue, and affirm without further comment as to the remaining two issues.

Factual Background

The parties were divorced by a Consent Final Judgment of Dissolution of Marriage in 2008, which provided shared parental responsibility for their four minor children, and that Appellant retain primary physical custody of the minor children in the marital home located in Clay County. Appellant decided to move to St. Johns County in early 2009, in part so that he could transfer the oldest child to a different school. The distance between the marital home and the new residence was approximately 28 miles.

Subsequently, Appellee filed two motions for contempt, alleging Appellant failed to sufficiently share parental responsibility by, inter alia, not conferring with her about his decision to move and transfer the oldest child to a new school; however, Appellee did not seek to prevent Appellant’s move to St. Johns County. In its ruling on the school transfer, the trial court noted Appellant’s change of residence, but did not question it and declined to second-guess Appellant’s decision.

Appellee then filed an amended petition to modify the Consent Final Judgment based on an alleged substantial change in circumstances. Appellee asserted that the consent judgment provided that Appellant would raise the children in the marital home, allow the children to go to the same school, and they would share parental responsibility. Appellee alleged Appellant does not share parental responsibility or allow frequent and liberal visits and telephone communication, and “dictates” when she can visit or talk to the children, that Appellant was emotionally abusive to the children and depended on his mother to provide care and support for the children. She further asserted that Appellant unilaterally decided to move to St. Johns County, which is detrimental to her relationship with her children.

After a hearing, the court issued an order and attached a new custody/time-sharing arrangement. After finding that Appellant “unilaterally moved to St. Johns County with the minor children over [Ap-pellee’s] objection,” the court, without reciting any supporting findings of fact, concluded that this move was “harmful to the minor children in that it deprives [Appel-lee] of visitation and is detrimental to the well being of the minor children.”

The court also found, this time with some supporting facts, that:

[111]*111Dr. Stephen Bloomfield completed a child custody evaluation and submitted a report dated April 26, 2010. Dr. Bloomfield concluded that the minor children “were not living in a stable, satisfactory environment”, p. 41, at the time of the evaluation and that the current time sharing plan was no longer working since [Appellant] moved to St. John’s [sic] County, and the evaluator opined that there was “no overwhelming reason to maintain the current community.”, p. 41, Dr. Bloomfield concluded that the current time sharing plan was detrimental to the children unless the parties agreed to move closer together.

The court adopted Dr. Bloomfield’s findings, and ultimately concluded that “these factors taken and considered in the totality of the circumstances made it clear that it would be detrimental to the minor children for primary residential responsibility to remain with [Appellant].”

The hearing was not transcribed. In lieu of a hearing transcript, Appellant submitted a 36-page Statement of Proceeding pursuant to rule 9.200(b)(4), Florida Rules of Appellate Procedure. The record reflects no objection to the Statement. The court approved the Statement, subject to the handwritten changes it made.

Analysis

Appellate courts review orders modifying custody for abuse of discretion. Lewandowski v. Langston, 969 So.2d 1165, 1169 (Fla. 5th DCA 2007). This being said, however, it is an

established principle that the trial court does not have the same broad discretion to modify custody that it exercises in initial determinations of custody. The party seeking a modification of custody carries an extraordinary burden of proving both elements of a two-pronged test. The party must demonstrate that there has been a substantial and material change of circumstances since the time of the final judgment of dissolution and that the welfare of the child will be promoted by the change in custody.

Boykin v. Boykin, 843 So.2d 317, 320 (Fla. 1st DCA 2003) (citations omitted); see also Jablon v. Jablon, 579 So.2d 902, 903 (Fla. 2d DCA 1991) (holding court has considerably less discretion in a modification proceeding); Cooper v. Gress, 854 So.2d 262, 267 (Fla. 1st DCA 2003) (“The posture of a modification proceeding is entirely different from that of an initial custody determination, and the party seeking to modify custody has a much heavier burden to show a proper ground for the change.”).

Pursuant to section 61.13(3), Florida Statutes, “A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” As we stated in McKinnon v. Staats:

The trial judge determines what is in the best interest of the child, and the appellate court should not reverse those findings absent a showing of an abuse of discretion. Our scope of review is not whether reasonable people could differ as to the conclusion of the trial court, but whether there was “competent and substantial evidence revealing that substantial or material changes in the parties’ circumstances had occurred subsequent to the dissolution and that a change of custody would promote the best interests of the children involved.”

899 So.2d 357, 359 (Fla. 1st DCA 2005) (citations omitted; emphasis in original). Appellee failed to overcome this burden of proof, and the trial court abused its discretion by ordering a modification of custody [112]*112because “[t]he evidence presented here did not amount to a substantial change in circumstances to warrant a post-dissolution modification of custody.” Id. at 361.

The crux of Appellee’s request for modification is Appellant’s decision to move the children to a new home 28 miles from their previous home. Appellee sought a modification of custody based on “a substantial change in circumstances,” including Appellant’s decision to move out of the former marital home and relocate to the adjoining county, failure to allow “frequent and liberal visitation and telephonic communication” between Appellee and the children, and changing the children’s schools. Our review of the record shows that each of these alleged instances of a substantial change in circumstance stems from Appellant’s relocation to St. Johns County. Indeed, the trial court cited the portion of Dr. Bloomfield’s report finding that the first time-sharing plan approved by the trial court “was no longer working since [Appellant] moved to St. John’s [sic] County” and that it would not work unless the parties agreed to move closer.

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Ragle v. Ragle
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Cite This Page — Counsel Stack

Bluebook (online)
82 So. 3d 109, 2011 Fla. App. LEXIS 12738, 2011 WL 3558156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ragle-v-ragle-fladistctapp-2011.