Delivorias v. Delivorias
2011 Fla. App. LEXIS 19783
Fla. Dist. Ct. App.2011Background
- Appellant Becnel Delivorias and Appellee Bradley Delivorias are involved in a dissolution with disputes over primary residential custody.
- The trial court found Appellant in willful contempt for failing to follow a court-ordered child exchange plan and temporarily designated Appellee as primary residential parent for two months.
- The order transferred primary custody from Louisiana to Florida pending further proceedings not part of this appeal.
- Appellant sought rehearing and rehearing en banc; the panel granted rehearing to clarify the basis of affirmance and denied rehearing en banc.
- The court discussed the custody-modification standard requiring substantial, material, unanticipated changes in circumstances and the children's best interests.
- The panel distinguished Cheek v. Hesik and other decisions, concluding no intra-district conflict exists and the record supports the custody modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the modification proper without explicit findings? | Delivlorias argues lack of mandated findings. | Delivlorias contends correct test applied with evidence supporting modification. | Modification supported; findings not required for this record |
| Does Cheek v. Hesik create a conflict with affirmance? | Delivlorias asserts conflict between Cheek and this case. | Delivlorias argues no conflict exists after distinguishing Cheek. | No intra-district conflict; distinguish Cheek |
| Should the court have remanded for findings of fact? | Delivlorias claims remand necessary for findings. | Delivlorias asserts record supports result; remand unnecessary. | Remand not required given appellate reviewability and supported result |
| Do other cited decisions require different outcome? | Delivlorias contends other cases undermines result. | Delivlorias emphasizes distinguishing facts/approach. | Record distinguishes cited cases; no reversal warranted |
Key Cases Cited
- Wade v. Hirschman, 903 So.2d 928 (Fla. 2005) (two-pronged custody modification test)
- Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003) (proper test for modification requires change and best interests)
- Moreno v. Moreno, 606 So.2d 1280 (Fla. 5th DCA 1992) (need for findings to facilitate appellate review)
- Rossman v. Profera, 67 So.3d 363 (Fla. 4th DCA 2011) (absence of 'magic words' acceptable if record shows reasoning)
- Vaughn v. Vaughn, 714 So.2d 632 (Fla. 1st DCA 1998) (reasoning can be apparent from the record; harmless error)
- Ginder v. Ginder, 536 So.2d 1155 (Fla. 1st DCA 1988) (custody modification cannot be punitive)
- Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011) (makeup time-sharing requires best-interests findings)