Buschor v. Buschor
252 So. 3d 833
Fla. Dist. Ct. App.2018Background
- Former Wife and Former Husband divorced; original settlement provided the child would reside primarily with Mother and Father would have liberal and frequent contact with graduated timesharing.
- Parties modified timesharing by mediation to give Father regular weekend and Tuesday overnight visits and allowed additional timesharing by mutual agreement.
- Father later filed a petition to modify seeking 50% timesharing; trial court awarded Father 70% timesharing and changed the child's primary residence to Father — relief Father had not pleaded.
- Mother filed to relocate with the child to South Florida for financial necessity (husband’s job); she moved after filing but before a final ruling and temporary equal timesharing was used for six months.
- Trial court denied Mother’s relocation petition, citing concerns about her cooperation with Father’s visitation; majority held the denial lacked competent substantial evidence and that relocation should have been granted.
- Appellate court reversed the timesharing/residence change for violating Mother’s due process (relief beyond pleadings) and reversed the denial of relocation, remanding with directions to grant relocation and craft timesharing.
Issues
| Issue | Plaintiff's Argument (Former Wife) | Defendant's Argument (Former Husband) | Held |
|---|---|---|---|
| Whether awarding timesharing and changing primary residence to Father without notice violated due process | Father requested only 50% timesharing; Mother argued court lacked notice it would award greater relief | Father relied on trial court’s authority to fashion custody timely | Court: Reversed — awarding relief beyond pleadings violated Mother’s due process rights |
| Whether trial court properly denied Mother’s petition to relocate under §61.13001 | Relocation was necessary for financial reasons, Mother met burden showing move served child’s best interests; substitute arrangements workable | Father argued Mother moved without authorization and would not facilitate visitation, harming child’s relationship with him | Court: Reversed — trial court failed to apply statutory relocation/best-interest factors and findings lacked competent substantial evidence; relocation should be granted |
| Burden allocation for relocation | Mother: She bears initial burden to prove relocation is in child’s best interest by preponderance | Father: Once Mother meets burden, Father must prove by preponderance relocation is not in child’s best interest | Court: Affirmed statutory burden shift and found Father failed to carry his burden |
| Whether trial court’s factual findings about Mother’s noncooperation were supported | Mother: Evidence showed she complied with schedule and accommodated extra time; communications show Father often demanded more | Father: Pointed to specific instances of Mother’s obstructive conduct and unauthorized move | Court: Majority — findings not supported by competent, substantial evidence; concurrence would defer to trial court credibility determinations |
Key Cases Cited
- Maras v. Still, 927 So.2d 192 (Fla. 2d DCA 2006) (awarding relief not requested violates due process)
- Berrebbi v. Clarke, 870 So.2d 172 (Fla. 2d DCA 2004) (relocation denial based on unsupported findings reversible)
- Landingham v. Landingham, 685 So.2d 946 (Fla. 1st DCA 1996) (move in violation of prior order may still satisfy best-interest showing)
- Orta v. Suarez, 66 So.3d 988 (Fla. 3d DCA 2011) (relocation granted where relocating parent met burden and nonrelocating parent failed to show detriment)
- Wraight v. Wraight, 71 So.3d 139 (Fla. 5th DCA 2011) (appellate court should not reweigh evidence; reviews for competent substantial evidence)