Delgado v. SilvarreyDelgado v. Silvarrey
This is an appeal from an order of the trial court denying the mother‘s petition for modification of child custody and granting the father‘s petition to modify custody. For the reasons which follow, we reverse.
At the hearing, the mother testified that she had remarried and was currently living
Following the hearing, the trial court entered an order on pending motions wherein it denied the mother‘s petition for modification on the ground that she had “failed to meet her burden of proof and prove a substantial change of circumstances.” The trial court granted the father‘s petition upon a finding that he had “proved that the proposed move to Iowa would be in the best interest of the children.” The trial court‘s order included a visitation schedule which provided the mother at least eight weeks with the children annually. The children‘s travel expenses were to be shared equally by the mother and the father.
We reverse the trial court‘s order on both procedural deficiencies and the merits. According to the final judgment of dissolution, the mother was the primary custodial parent of Javier. Thus, upon the father‘s filing of his emergency petition for modification, the mother was entitled to notice and an opportunity to be heard. Connors v. Connors, 327 So.2d 877 (Fla. 2d DCA 1976). The trial court erred in granting the father‘s emergency petition for modification where the mother received neither notice nor an opportunity to be heard. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957); Antonio v. Antonio, 493 So.2d 53 (Fla. 2d DCA 1986); Manning v. Varges, 413 So.2d 116 (Fla. 2d DCA 1982). Although we do not have the benefit of the transcript of the hearing held on the father‘s emergency petition, the trial court‘s order granting a change in Javier‘s custody reveals that only the father and the paternal grandmother testified at the hearing. The trial court further erred by failing to include in its order any findings of fact or conclusions of law as to its reasons for granting a change of Javier‘s custody. See Alderman v. Alderman, 484 So.2d 1385 (Fla. 1st DCA 1986) (modification of custody improper where petition seeking modification contained no allegation that custodial parent was unfit and trial court‘s order contained no findings of fact or conclusions of law).
Even if we discounted the violation of the mother‘s due process rights in connection with the emergency petition proceedings on the assumption that the matters raised in the father‘s emergency petition were addressed at the hearing on the subsequent petitions, e.g., Jackson v. Jackson, 468 So.2d 1098 (Fla. 2d DCA 1985), the merits of the case failed to justify a change of custody. In order to prevail on his petition, the father bore the dual burden of showing that there had been a substantial change of circumstances since the entry of the final judgment and that the best interests of Javier would be served by a change in custody. Bennett v. Bennett, 73 So.2d 274 (Fla. 1954); Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); Crippen v. Crippen, 508 So.2d 1339 (Fla. 4th DCA 1987);
Having determined that the father‘s remarriage and his anticipated move to Iowa were insufficient to justify a change of Javier‘s custody, we next consider the question of whether the proposed move to Iowa would be in the best interests of Javier and Jose, Jr. The trial court incorrectly regarded the father‘s best interests as the determinative factor. The record contains no evidence to support a conclusion that a move to Iowa would be in the children‘s best interests; in contrast, the record attests to the benefits of their remaining in Miami. The children have always lived in Miami, where both sets of grandparents reside. The mother lives in Miami and will be expected to pay half of the children‘s travel expenses if she wishes to exercise her visitation rights. The father does not contemplate earning a higher salary in Iowa but, instead, relies upon the hope that the cost of living in Iowa will be lower. However, any savings would be offset by the increased expense of paying half of the children‘s travel expenses to Miami to visit their mother. The desire of the father‘s wife to relocate the family to her home state is not a relevant factor in assessing the children‘s best interests. Moreover, Jose, Jr., and Javier have already experienced displacement in their young lives by virtue of the final judgment of dissolution which separated them, an arrangement generally disfavored except in the most compelling circumstances. See Arons v. Arons, 94 So.2d 849 (Fla. 1957); Myrick v. Myrick, 523 So.2d 172 (Fla. 2d DCA 1988); Bache v. Bashir, 482 So.2d 546 (Fla. 4th DCA), rev. denied, 492 So.2d 1330 (Fla. 1986). The trial court‘s order further disrupts their lives by separating them geographically from their mother. Balancing these considerations, there is a dearth of “competent, substantial evidence” to justify removal of the children to Iowa. See Nissen v. Murphy, 528 So.2d 502 (Fla. 2d DCA 1988) (custodial parent‘s move to foreign state not substantial change of circumstances which would support change of custody); Parker v. Parker, 519 So.2d 673 (Fla. 1st DCA 1988) (trial court did not abuse discretion in refusing custodial parent permission to remove child from Florida to California where her future spouse was assigned); Wells v. Wells, 501 So.2d 700, 701 (Fla. 2d DCA 1987) (relocation of children from Florida to Georgia with custodial parent was supported by “competent, substantial evidence” and was in best interests of children where custodial parent and fiance were willing to pay children‘s travel expenses to ensure visitation with non-custodial parent); Matilla v. Matilla, 474 So.2d 306, 307-08 (Fla. 3d DCA 1985) (Jorgenson, J. dissenting) (inappropriate to permit custodial parent to remove child to foreign jurisdiction in absence of any compelling evidence).
For these reasons, we reverse the trial court‘s order granting the father‘s petition for modification, appointing him primary custodial parent of Javier, and permitting him to move to Iowa with Javier and Jose, Jr. We vacate that portion of the trial court‘s order denying the mother‘s petition for modification and remand with directions for the trial court to reconsider the mother‘s petition in light of whether the father‘s relocation to Iowa constitutes a substantial change of circumstances so as to warrant the mother‘s being designated primary custodial parent of both Javier and
Vacated in part; reversed and remanded with directions.