Wade v. Hirschman

903 So. 2d 928, 2005 WL 1243537
CourtSupreme Court of Florida
DecidedMay 26, 2005
DocketSC04-1012
StatusPublished
Cited by93 cases

This text of 903 So. 2d 928 (Wade v. Hirschman) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wade v. Hirschman, 903 So. 2d 928, 2005 WL 1243537 (Fla. 2005).

Opinion

903 So.2d 928 (2005)

Carolyn R. WADE, f/k/a Carolyn R. Hirschman, Petitioner,
v.
Michael D. HIRSCHMAN, Respondent.

No. SC04-1012.

Supreme Court of Florida.

May 26, 2005.

*930 Tracy S. Carlin of Mills and Carlin, P.A., Jacksonville, Florida, for Petitioner.

Linda Logan Bryan of Miller, Shine and Bryan, P.L., St. Augustine, Florida, for Respondent.

BELL, J.

We have for review Wade v. Hirschman, 872 So.2d 952 (Fla. 5th DCA 2004), which expressly and directly conflicts with the decision in Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003).[1] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. At issue is the test courts should use in proceedings to modify rotating custody agreements. The conflict to be resolved is whether the trial court should base modification of rotating custody agreements on the considerations set forth in section 61.13, Florida Statutes (2003), as if it were making an initial custody determination as *931 the Fifth District Court of Appeal held in Wade, or whether the trial court should utilize the "substantial change test,"[2] as the First District Court of Appeal held should be used in Cooper.[3] For the reasons set forth below, we conclude that the substantial change test as used in Cooper applies to modification of all custody agreements.[4]

I. FACTS AND PROCEDURAL HISTORY

In Wade, the Fifth District stated in pertinent part:

The parties were divorced in October 2000, and neither was named primary residential custodian of their child. After mediation, the parties agreed to a split rotating custody and parenting coordinator plan. It was approved by the court on November 8, 2001, and the parties were ordered to abide by its terms. However, Wade [the Mother][5] refused to sign the mediated agreement. As noted by the court in its decree, [the Mother] said she objected to all paragraphs of the agreement. The court found her disagreements "unreasonable." [The Mother] did not appeal from this decree.
In this modification proceeding, the parties both alleged there had been a substantial change in circumstances and both sought primary residential custody of the child. After an evidentiary hearing, the trial court determined that the split rotating custody plan had failed because [the Mother] consistently refused to abide by the plan, she refused to work with the parenting coordinators, she frustrated their efforts, and she was "totally disruptive." However, the trial court was uncertain as to which legal standard should be applied to this modification proceeding.

Id. at 953.

The trial court found that the rotating custody plan had failed, that there had been substantial and material changes in circumstances since the entry of the final judgment, and that the rotating custody agreement was no longer in the best interest of the child. The trial court then applied the factors in sections 61.13(3)(a) and 61.13(4)(c)(5), Florida Statutes (2003),[6] and ordered the parties to have shared parental responsibility with the Father[7] as the primary residential parent.

The Mother appealed. The Fifth District did not decide whether the Father met the requirements of the substantial change test. Instead, the Fifth District held the substantial change test did not apply and announced a new test for modification *932 of rotating custody agreements. This new test would apply where the parties have split rotating custody. "Once it is established through substantial and competent evidence that the split rotating custody plan has failed and is doomed to future failure, for whatever reason (the child's obtaining school age, or one party's complete refusal to adhere to the plan), then the court should be free to redetermine custody based on the considerations set out in section 61.13, as though it were making an initial custody determination." Wade, 872 So.2d at 954-55 (emphasis added).[8] The rationale articulated in Wade was that in rotating custody cases, there is no primary residential parent; thus, the court should be free to make a de novo custody determination based on the considerations set forth in section 61.13(3).

The Mother petitioned this Court for review, alleging express and direct conflict with Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003). Contrary to the Fifth District's approach in Cooper, the First District held that the substantial change test applied to modifications of rotating custody agreements. Id. at 263. We granted review to resolve this conflict.

In Cooper, the First District held:

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. The trial judge's personal observation, stated in the record, that rotating custody arrangements never work, does not justify modifying the custody plan, absent a substantial change of circumstances resulting in the modification's being in the children's best interests.

Id. at 267.

Given the conflict in the district courts in Wade and Cooper, we must determine the test for modification of a rotating custody agreement. Because the conflict issue is a question of law, the standard of review is de novo. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1226-27 (Fla.2004). We conclude that unless otherwise provided in the final judgment, the two-part substantial change test used in Cooper applies to modification of all custody agreements.[9] Accordingly, we quash the decision of the Fifth District Court of Appeal in Wade and approve the trial court's decision below.

II. Res Judicata

A final divorce decree providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree. Belford v. Belford, 159 Fla. 547, 32 So.2d 312, 314 (1947). This rule promotes the finality of the judicial determination of the custody of children. After the trial court enters the original final judgment decree, it is res judicata *933 of the facts and circumstances at the time the judgment became final. Thus, there is a presumption in favor of the reasonableness of the original decree. Id. This presumption may be overcome when changes in circumstances have arisen which warrant and justify modification of the original decree. See In re Gregory, 313 So.2d 735, 738 (Fla.1975); Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 466 (1933). To modify such judgments, the trial court must decide whether there is a "factual basis sufficient to show that conditions have become materially altered since the entry of the previous decree." Id. at 467. The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character. Bennett v. Bennett, 73 So.2d 274, 278 (Fla.1954).

III. The Substantial Change Test in Statutory and Common Law

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Cite This Page — Counsel Stack

Bluebook (online)
903 So. 2d 928, 2005 WL 1243537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-hirschman-fla-2005.