Willey v. Willey

683 So. 2d 647, 1996 WL 692122
CourtDistrict Court of Appeal of Florida
DecidedDecember 4, 1996
Docket95-0671
StatusPublished
Cited by5 cases

This text of 683 So. 2d 647 (Willey v. Willey) 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
Willey v. Willey, 683 So. 2d 647, 1996 WL 692122 (Fla. Ct. App. 1996).

Opinion

683 So.2d 647 (1996)

Daniel D. WILLEY, Appellant,
v.
Cindy D. WILLEY, Appellee.

No. 95-0671.

District Court of Appeal of Florida, Fourth District.

December 4, 1996.

*648 Carolyn Frank of Frank & Frank, Delray Beach, for appellant.

L. Rachel Eisenstein and Holly Davidson of DuBosar & Davidson, P.A., Boca Raton, for appellee.

PARIENTE, Judge.

Appellant, Daniel D. Willey (the father), appeals a final order modifying visitation incident to the relocation from Florida to Chicago of appellee, Cindy D. Willey (the mother). We reverse because the trial court abused its discretion in substantially reducing the visitation afforded the father without any findings or evidence that such reduced visitation was in the best interests of the minor child and in requiring the father to bear the overwhelming proportion of the transportation expenses.

By separate judgment, the trial court granted the mother's petition to move out of state with the parties' two children. Although the father does not challenge the trial court's decision allowing the mother and the children to move out of state, he strongly protests the significant reduction in the amount of visitation with the minor child[1] as well as the financial burden imposed on the exercise of his right to visitation by requiring him to pay all of the travel expenses.

At the time of the divorce in October 1993, the trial court ordered shared parental responsibility of the parties' children. The trial court designated the mother as the primary custodial parent, but granted the father "reasonable" visitation rights.

Reasonable visitation as set forth in the trial court's standard visitation order, unless the parties otherwise agreed, included every other weekend, every Wednesday evening, *649 the entire spring vacation, and a portion of Thanksgiving and winter vacations. The amount of summer visitation depended on the child's age. The father was granted at least 30 consecutive days of summer visitation until the child reached school-age, at which time summer visitation was to increase to eight weeks unless the child was required to attend summer school.

The standard visitation order did not quantify the days of visitation. According to the father's calculation, which the mother does not dispute, this schedule granted him 154 days (5 months and 4 days) of visitation per year before the child was old enough to be enrolled in school and 175 days (6 months and 4 days) after the child reached schoolage. The weekly Wednesday evening visits and bi-weekly weekend visits together accounted for 78 of the 154 days.

In March 1994, the mother petitioned the trial court for a modification of the final judgment so that she could move with her children to Chicago. As justification for the planned relocation, the mother asserted that most of her family lived in Chicago and that she had better employment opportunities there. The father testified to the relationship he enjoyed with his daughter and how the move would severely impact his visitation rights and adversely affect his relationship with the minor child.

In granting relocation, the trial court specifically stated that it was considering the impact of the relocation on the father's opportunity for visitation. It found that "the cost of transportation could be affordable and substitute visitation, with the Father, can be achieved and would be adequate to foster the relationship the children have with the Father."

The trial court reserved jurisdiction to enter a detailed visitation schedule. In accordance with the trial court's request, both parties submitted proposed visitation schedules with the minor child.

The mother proposed a visitation schedule providing for generous summer visitation consisting of alternating two weeks with the father and one week with the mother, with the expenses to be shared by the parties. She also proposed that the minor child spend spring break, Christmas break (except Christmas Eve and Christmas), and alternating Thanksgiving holidays with her father. The mother agreed that the father may also visit the minor child any weekend or holiday—at his own expense—in Chicago, where he was "welcome to stay with them in the home of the Former Wife." As to all visitation time except summer vacation, the mother proposed that the father bear the transportation expenses.

The father's proposed visitation schedule included one week for each holiday (Christmas, Thanksgiving, Easter and Washington's Birthday), 60 days summer vacation, and one weekend per month in Chicago. As support, he cited to Sherman v. Sherman, 558 So.2d 149 (Fla. 3d DCA 1990), where the court found a similar substitute schedule to be meaningful. He further proposed, based on the mother's new financial circumstances after relocation, that she bear 75% of the travel expenses.

The trial court did not hold any further hearings or receive any evidence on whether either of the parties' proposed schedules or a combination of the two would prove workable and be in the best interests of the minor child. Instead, the trial court entered an "Order on Visitation Schedule" in January 1995, granting the father significantly reduced visitation in Florida: 30 days during summer vacation, alternating Thanksgiving holidays, and one week during the winter holidays when school is not in operation.[2]

At the time the trial court entered the order, the minor child would have been almost five years old and approaching schoolage; yet no part of the trial court's order recognized any increased summer visitation once the minor child reached school-age, as did the prior visitation order. The trial court further required the father to pay all travel *650 expenses associated with visitation and mandated that the father fly to Chicago to pick up the minor child in order to return with her to Florida.

This case requires us to confront two policies. First is the strong policy of shared parental responsibility as articulated by the "[l]egislature's determination that the best interests of children are served by frequent and continuing contact with both parents." Mize v. Mize, 621 So.2d 417, 420 (Fla.1993) (Barkett, J., concurring); see § 61.13(2)(b), Fla.Stat. (1995). Second is the policy allowing relocation. In our increasingly mobile society, a parent may have a legitimate desire to relocate, which a court should be loathe to prevent.[3]Mize, 621 So.2d at 421. The role of the courts should "not be to impose restrictions on one parent's ability to move, but to urge the parents to seek a mutually acceptable solution for the best interests of their children." Id.

As our supreme court made clear in Russenberger v. Russenberger, 669 So.2d 1044 (Fla.1996), a parent is presumptively entitled to relocation upon a demonstration of good faith as described in Mize. The presumption is rebuttable, and in considering the request and any opposition to it, the trial court should weigh the Hill[4] factors on a case-by-case basis. Russenberger, 669 So.2d at 1046; Mize, 621 So.2d at 420. Two of the six Hill factors particularly pertinent here are: 1) whether substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent; and 2) whether the cost of transportation is financially affordable by one or both parents. See Mize, 621 So.2d at 420.

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Cite This Page — Counsel Stack

Bluebook (online)
683 So. 2d 647, 1996 WL 692122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willey-v-willey-fladistctapp-1996.