San Marco v. San Marco

961 So. 2d 967, 2007 WL 2119173
CourtDistrict Court of Appeal of Florida
DecidedApril 25, 2007
Docket4D06-3326
StatusPublished
Cited by1 cases

This text of 961 So. 2d 967 (San Marco v. San Marco) 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
San Marco v. San Marco, 961 So. 2d 967, 2007 WL 2119173 (Fla. Ct. App. 2007).

Opinion

961 So.2d 967 (2007)

Jessica E. SAN MARCO, Appellant,
v.
Anthony SAN MARCO, Appellee.

No. 4D06-3326.

District Court of Appeal of Florida, Fourth District.

April 25, 2007.

*968 Kenneth M. Kaplan, Miami, for appellant.

John S. Andrews of Andrews & Galatis, Fort Lauderdale, for appellee.

POLEN, J.

Appellant Jessica E. San Marco appeals a final judgment on supplemental petitions for modification of child visitation and/or custody in favor of Appellee, Anthony San Marco. The parties in this case were formerly married and had one child, A.M. An uncontested final judgment of dissolution of marriage was entered on September 2, 2003. As part of the agreement, the parties agreed that A.M.'s primary physical residence would be with Jessica, parental responsibility and visitation to be shared with Anthony. The parties also agreed that Jessica could relocate her residence without court permission, as long as she stayed within Dade, Broward or Palm Beach counties. Anthony was required to pay child support to Jessica. As a result of the modification at issue in this case, Anthony was awarded primary residential custody of the child and his child support obligation was terminated. We affirm, but write to address Jessica's arguments below.

Following the dissolution of marriage, Jessica filed a supplemental petition to modify custody and/or other relief. Jessica alleged that Anthony was not following the visitation schedule by failing to bring A.M. home at the arranged times and that this was causing A.M. to miss school. Jessica asked the court to limit Anthony's visitation rights to every other weekend. Anthony responded by filing a counter-petition to modify visitation. Anthony alleged that Jessica had breached the settlement agreement by: (1) failing to provide A.M. with medical care and attention; (2) failing to have A.M. vaccinated with the chicken pox vaccine, resulting in her contraction of chicken pox; (3) failing to have A.M. vaccinated as per Broward County health ordinances; (4) failing to provide him with the correct address for A.M.'s residence; and (5) moving repeatedly since the parties' divorce. Anthony alleged there had been a substantial change in circumstances since the parties' divorce and asked that he be awarded primary physical custody of A.M. Anthony had remarried after the divorce and alleged he could provide a more stable family environment.

The trial court held a hearing on the parties' motions. During the hearing, John Andrews, Anthony's counsel, questioned Jessica extensively about her care of A.M. Jessica testified that since the parties' divorce she had taken A.M. to the pediatrician for treatment of an ear infection and for her routine shots and a physical. Jessica would sometimes wait until Anthony picked A.M. up and have him take her to the doctor, as A.M. was listed on Anthony's wife's insurance. Jessica alleged she did not have access to an insurance card. Jessica testified that Anthony had refused to give her the insurance information for some time. Jessica also asserted that Anthony's new wife was listed as A.M.'s mother at the doctor's office. Anthony admitted his wife was listed as A.M.'s stepmother at the doctor's office, but not as her mother.

Jessica admitted to moving six times in the past four years, but asserted it was in the best interest of A.M. and that she was *969 forced to move due to financial difficulties. Jessica agreed that Anthony's family circumstances had changed since the parties' divorce, but did not necessarily believe Anthony lived in a better environment than she. Jessica testified that A.M. had been vaccinated but admitted "[s]he had missed a couple of visits from time to time." Jessica did not have A.M. vaccinated against chicken pox because she had "personal concerns" about the vaccination. Jessica agreed she did not take A.M. to the dentist to deal with an injured tooth but asserted this was because she did not have the insurance card or insurance information.

Anthony testified that he had picked A.M. up on several occasions and due to problems such as an ear infection or pinkeye had to take her directly to the doctor's office. Anthony asserted that Jessica had lied about getting A.M. vaccinated. Anthony also asserted he was the one to take Jessica to the dentist when she injured her tooth and it began to turn black. Anthony knew of only one time since the divorce when Jessica had taken A.M. to the doctor.

Anthony had a stable job, had been remarried for two-and-a-half years and had twin daughters. Anthony testified that his neighborhood and home were a better, more family-oriented environment than Jessica's. Anthony pointed out that A.M. was starting kindergarten and if she lived with Anthony, either he or his wife would be home when A.M. got out of school. If she lived with Jessica, Anthony asserted she would have to go to daycare, although Jessica disagreed with this assertion. Anthony agreed that the schools in his neighborhood and Jessica's neighborhood were both "A" schools.

Mindy Pelliccio, a pediatric nurse, testified on Anthony's behalf. Pelliccio testified about A.M.'s vaccinations, or lack thereof. A.M. had missed her measles, mumps and rubella vaccines and her chicken pox and pneumococcal vaccines. Pelliccio testified A.M.'s multiple ear infections and contraction of chicken pox could be traced to this lack of vaccination. Pelliccio agreed that some parents did not want to get their children vaccinated but stated these parents usually go through a process with the county to sign forms and to express the reasons why they do not want their child vaccinated. Pelliccio did not believe there was any justifiable reason not to vaccinate a child. Pelliccio had not heard of any virus associated with a chicken pox vaccination or the onset of autism due to the chicken pox vaccination.

Andrea Windsor, Anthony's new wife, also testified at the hearing. Andrea was a registered nurse. Since being married, Anthony had gotten a steady job, the two had bought a house in Coral Springs, and they had gotten insurance coverage for A.M. Andrea confirmed there had been several times A.M. needed immediate medical attention when they picked her up from Jessica. Andrea denied withholding access to insurance information and stated the insurance card was on file at the pediatrician's office. Andrea also denied that she was listed as the mother and stated Jessica was listed as the mother, both at the doctor's office and in the insurance file.

The trial court made a number of findings in its final order. The trial court found: (1) Anthony had taken A.M. to the doctor or dentist on more than ten occasions while Jessica had taken her once; (2) Jessica had not provided A.M. with appropriate medical care by refusing to have her inoculated and by failing to keep her vaccinations current; (3) there was more structure in Anthony's home and A.M. would have her own room and bathroom there; (4) if A.M. lived with Anthony she would not have to be in aftercare following *970 school; (5) due to Jessica's frequent moves, A.M. would likely have a more stable school environment by living with Anthony; (6) Anthony had "a superior capacity and disposition to provide the child with medical care"; and (7) Jessica's frequent moves resulted in A.M. not having a stable, satisfactory environment. The trial court determined there had been a substantial and material change of circumstances since the parties' divorce and it was in A.M.'s best interest to reside with Anthony.

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Cite This Page — Counsel Stack

Bluebook (online)
961 So. 2d 967, 2007 WL 2119173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-marco-v-san-marco-fladistctapp-2007.