THOMAS J. VILTZ, APPELLANT,
v.
ANNA MARIA CERBINI VILTZ, APPELLEE
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A Florida appellate court affirmed a trial court's order permitting the custodial mother to relocate with the parties' young daughter to Venezuela. The father challenged the relocation on grounds that it would eliminate his visitation rights and deprive the child of her birthright to be raised in the United States, but the court held that the trial court's determination that relocation was in the child's best interest would not be disturbed on appeal.
The court affirmed the trial court's order. The father's first contention regarding his visitation rights was not addressed because he failed to preserve the issue by objecting at trial. Regarding the child's rights, the court held that the trial court's finding that relocation was in the child's best interest would not be disturbed, as the trial court is in the best position to make such determinations and substantial evidence supported the decision.
[1] A party's failure to object to a court order in the trial court generally waives the right to raise that issue on appeal.
[2] An agreement between parents regarding child custody and support cannot bind a court.
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Establishes that the father's acquiescence to the relocation provision does not waive the child's independent rights, requiring the court to address the merits of whether relocation serves the child's best interests.
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Join FLexlaw to unlock all legal intelligenceIn 1978, the trial court awarded Anna Viltz custody of her three-year-old daughter Laila. The custody order prohibited the mother from removing the ch…
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DANIEL S. PEARSON, Judge.
In 1978, the trial court entered a judgment awarding Anna Viltz, the mother, custody of Laila Viltz, the then three-year-old daughter of the parties. The judgment prohibited the mother from removing the child from the United States in the absence of a court order. A year later Anna sought and obtained such an order, from which Thomas Viltz appeals.1 The father’s appeal makes two contentions. He says (1) that the removal of the child from the United States would render his right of reasonable visitation illusory and effectively deprive him of his natural rights as a father; and (2) that the removal will deprive the child (as the parents, a citizen of the United States) of her birthright to be raised and educated in the United States.
The impediment to the first prong of the father's appeal is that the father raised no objection to the provision of the order allowing the mother to leave the United States with the child. Indeed, the record fairly reflects that he and his counsel acquiesced in this provision. We do not reach the merits of his first contention, since the issue was not properly preserved below. Hatfield v. Hatfield, 384 So. 2d 889 (Fla. 3d DCA 1980); Commodore Plaza at Century21, Etc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977); Karl v. David Ritter, Sportser-vice, Inc., 164 So. 2d 23 (Fla. 3d DCA 1964); Collins v. Farley, 147 So. 2d 593 (Fla. 3d DCA 1962).
We must, however, address his second contention that the rights of the child are being violated by the trial court’s order. Since an agreement between the parties respecting the custody and maintenance of a child cannot bind a court, Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933); Siegel v. Zimmerman, 319 So. 2d 187 (Fla. 3d DCA 1975); Eaton v. Eaton, 238 So. 2d 166 (Fla. 4th DCA 1970), a fortiori, the father’s failure to object cannot constitute a waiver of the rights of the child.
Faced with a dearth of authority, the father relies upon O’Shea v. Brennan, 88 Misc.2d 233, 387 N.Y.S.2d 212 (Sup.Ct. 1976), for the proposition that an order which permits a parent-custodian to take up residence in another country with a child who is a citizen of the United States is, per se, not in the best interests of the child in that it deprives the child of the right to be raised and educated in the United States. We do not agree that O’Shea stands for this proposition,2 but, if arguendo, it does, we are not prepared to adopt it. In the present case the trial court had before it substantial evidence from which it could find that it was in the child’s best interest to permit the mother to move with the child outside the United States.3 The trial court is in the best position to make this judgment, and we will not disturb its finding. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Kern v. Kern, 333 So. 2d 17 (Fla.1976); Barnhill v. Barnhill, 353 So. 2d 923 (Fla. 4th DCA 1978); O’Connor v. O’Connor, 347 So. 2d 438 (Fla. 3d DCA 1977).
Affirmed.
. The order, in pertinent part, gave the mother the right to remove the child from the confines of the United States. It was conditioned upon her returning the child, at her expense, to the father in the United States for two months of visitation every summer and posting a cash bond to cover any costs which might be incurred if she failed to comply with the order. The order further suspended the father’s obligation to pay child support while the child was out of the country.
. In O’Shea, the court found that the permanent removal of the child to Australia by the remarried mother would effectively prevent visitation by the father and a denial of a continued relationship with the father would not be, under all circumstances, in the best interests of the child.
. The record reflects that the mother was going to Venezuela, where her family lived and where the parties and the child had previously lived for two years. The mother expressed a willingness for the father to come there to visit in addition to the summer visitation in the United States. The suspension of child support payments would provide the father with additional wherewithal for the costs of such travel. The move was not intended to be permanent. Significantly, the mother’s older child by a prior marriage who had lived for some years in Venezuela was then being educated in the United States.
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McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…pon a showing of a substantial change in circumstances and that it would be in the best interests of the child — approving removal of the child from the state or jurisdiction. Scheiner v. Scheiner, 336 So. 2d 406 (Fla. 3rd DCA 1976); Viltz v. Viltz, 384 So. 2d 1348 (Fla. 3rd DCA 1980); Giachetti v. Giachetti, 416 So. 2d 27 (Fla. 5th DCA 1982); Costa v. Costa, 429 So. 2d 1249, supra; Award of custody to a nonresident parent, or to one who after the dissolution will take up residence in another state, or modific…
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Macaria Rivera v. Dade Cnty., 485 So. 2d 17 (Fla. 3d DCA 1986)…979). Affirmed. * Because appellant waived her right to complain of the trial court's ruling, by moving to amend the pleadings to strike the absent defendant, we need not remand this cause for the entry of a written order. See Viltz v. Viltz, 384 So. 2d 1348 (Fla. 3d DCA 1980); Holmes v. School Board of Orange County, 301 So. 2d 145 (Fla. 4th DCA 1974), cert. denied, 312 So. 2d 755 (Fla.1975).…
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Cherna v. Cherna, 427 So. 2d 395 (Fla. 4th DCA 1983)…judgment a motion to enforce a post-judgment agreement executed almost two years after entry of the final judgment. . See Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933); Eaton v. Eaton, 238 So. 2d 166 (Fla. 4th DCA 1970); and Viltz v. Viltz, 384 So. 2d 1348 (Fla. 3d DCA 1980).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Frazier v. Frazier, 109 Fla. 164 (Fla. 1933)
- Kern v. Kern, 333 So. 2d 17 (Fla. 1976)
- Commodore Plaza AT Century 21 Condo. Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977)
- Eaton v. Elton R. Eaton, II, 238 So. 2d 166 (Fla. 4th DCA 1970)
- Frieda Karl and John Karl v. Ritter, 164 So. 2d 23 (Fla. 3d DCA 1964)
- Siegel v. Zimmerman, 319 So. 2d 187 (Fla. 3d DCA 1975)
- Barnhill v. Barnhill, 353 So. 2d 923 (Fla. 4th DCA 1978)
- Everett A. Collins ad litem of the Estate of Elonzo P. Dann, Jr. v. Farley, 147 So. 2d 593 (Fla. 3d DCA 1962)
- Sheldon v. Tiernan (Fla. 2d DCA 1982)