Erin Straney appeals an order entitled “Supplemental Final Judgment of Dissolution of Marriage” that is actually a post-judgment order modifying child custody. Because the order appears to have applied the wrong law, we reverse and remand for further proceedings.
Ms. Straney and Brian Lee Floethe divorced in August 2007 after resolving all significant issues in a marital settlement agreement. In that agreement, Ms. Stra-ney was designated the primary residential custodian of the couple’s young daughter and Mr. Floethe was given a visitation schedule.
Almost immediately the parties had difficulties complying with the schedule. Without detailing the evidence, Ms. Stra-
As a result, nine months after the entry of the final judgment, Mr. Floethe filed a petition to modify the child custody arrangement. The petition alleged a material and substantial change in circumstances. After conducting a hearing, the trial court entered an order modifying the custody arrangement to give Mr. Floethe more time with his daughter. The order establishes a parenting plan under the new statute, section 61.13(3), Florida Statutes (2008), and modifies the parties’ time-sharing with the child. The order does not expressly find that the modification is supported by a substantial, material, and unanticipated change in circumstances. Instead, it recites that the trial court considered all the factors under section 61.13(3) without an explanation as to how those factors supported the modification. Ms. Straney moved for rehearing, but the trial court declined to give any additional explanation for its decision except to explain that Ms. Straney’s religious faith played no part in the court’s decision.
It is well established that an order modifying child custody must be based on a determination that: (1) a substantial and material change in circumstances has occurred since the entry of the final judgment, (2) it is in the child’s best interest to modify custody, and (3) the change in circumstances was not reasonably contemplated when the trial court entered the original final judgment.
See Wade v. Hirschman,
In this case, the trial court did not make an express finding that a substantial, material, and unanticipated change in circumstances had occurred. The record does not permit us to conclude that such a finding is implicit in this order. Accordingly, it appears from the record that the trial court applied the wrong law and did not require Mr. Floethe to prove the substantial and material change in circumstances.
Accordingly, we reverse and remand to the trial court for further proceedings. The trial court is free to rely on the evidence that it has already received and to use its own discretion in determining whether additional evidence would be use
Reversed and remanded.
