Rossman v. Profera
2011 Fla. App. LEXIS 11755
Fla. Dist. Ct. App.2011Background
- Divorce 2004: mother had primary residential; father had visitation; final judgment restricted relocation without permission.
- 2007 modification increased father's visitation slightly while keeping shared parental responsibility.
- 2009-01-12: mother served notice to relocate to Texas.
- 2009-06-10: mother moved to Texas with husband and child, leaving the child in Florida with father; Florida house remained but Florida rental was started.
- 2009-07-10 to 07-31: trial court held relocation and custody modification hearing; court denied relocation and granted modification; mother stated she would not return to Florida if relocation denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relocation denial supported by substantial competent evidence | Rossman argues relocation should be allowed. | Profera argues relocation would harm father-child relationship and is not in child's best interest. | Denied; relocation denied affirmed. |
| Existence of substantial change in circumstances to justify custody modification | Rossman contends relocation alone not substantial; no change. | Profera argues unique circumstances (mother moved and won’t return) create substantial change. | Yes; substantial change shown by unique facts; modification affirmed. |
| Explicit finding of substantial change in circumstances required | Rossman argues lack of express finding requires reversal. | Profera contends implicit evidence supports change. | Not reversible error given pled substantial change and detailed findings. |
| Effect of mother's pre-hearing move to Texas on custody | Rossman asserts prior relocation is not reversible to restore original custody. | Profera maintains best interests favor Florida custody. | Unique facts show change in circumstances warranting change in custody. |
| Sufficiency of express language versus implicit findings in order | Rossman argues order must say ‘substantial change’ explicitly. | Profera argues explicit phrase not required where record shows substantial change. | Not reversible error; order supported by detailed factual findings. |
Key Cases Cited
- Botterbusch v. Botterbusch, 851 So.2d 903 (Fla. 4th DCA 2003) (relocation/ custody decisions require substantial evidence under statutory factors)
- Ogilvie v. Ogilvie, 954 So.2d 698 (Fla. 1st DCA 2007) (relocation alone not substantial change in circumstances)
- Giangrande v. Henao, 898 So.2d 1104 (Fla. 2d DCA 2005) (move to foreign country without more not substantial change)
- Sotomayor v. Sotomayor, 891 So.2d 559 (Fla. 2d DCA 2004) (foreign-state move not per se substantial change)
- Kuntz v. Kuntz, 780 So.2d 1022 (Fla. 4th DCA 2001) (relocation statute framework; fact-specific)
- Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) (relocation decisions require best interests of child; not custodial parent)
- Clark v. Clark, 35 So.3d 989 (Fla. 5th DCA 2010) (express finding of substantial change required when not pleaded by noncustodial parent)
- Bon v. Rivera, 10 So.3d 193 (Fla. 4th DCA 2009) (modification without explicit substantial-change finding may be reversible)
- Moore v. Wilson, 16 So.3d 222 (Fla. 5th DCA 2009) (lack of express finding may be reversible)
- Kilgore v. Kilgore, 729 So.2d 402 (Fla. 1st DCA 1998) (initially urged need for express finding of substantial change)
- Straney v. Floethe, 58 So.3d 374 (Fla. 2d DCA 2011) (absence of express finding may be non-reversible where record supports change)