MARTHA SUE ADAMS, APPELLANT,
v.
JAMES K. ADAMS, APPELLEE
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The court held that the trial court erred in changing child custody based on insufficient evidence of a substantial and material change in circumstances.
[1] A custody order can only be modified upon a showing of a substantial and material change in circumstances and that the child's best interests will be promoted by the chan…
[2] A trial court has considerably less discretion when changing custody, and such a change must be supported by substantial evidence.
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution judgment awarding custody to the mother, the father sought modification. The trial court relied on conflicting Department of H…
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DANIEL PEARSON, Judge.
A final judgment of dissolution, rendered in 1975, awarded custody of the parties’ then three-year-old son to the mother, Martha Sue Adams. At the time of the dissolution of the marriage, the father conceded “that custody would be best had with the mother.” Mr. Adams, subsequently remarried, and in 1979 moved to modify the final judgment of dissolution, requesting that he be awarded custody of the child.1
The parties agreed that the evidence to be submitted on the motion to modify would be restricted to written reports prepared at the trial court’s request by Department of Health & Rehabilitative Services representatives. Essentially, the report of the Tallahassee caseworker concluded that the environment which the mother was providing was “positive, satisfying [and] love filled.” The Miami caseworker, who had not seen the child or the mother and had not observed the environment in which the child was being raised, concluded from an interview of the father and his newly-taken wife that the “father has as much, if not more, to offer in terms of love and emotional and material stability.”2 Based upon these reports, the trial court ordered that custody be changed.
The presumption of correctness which attaches to a ruling of a trial court3 made upon written reports is slight.4 In such an instance, as here, an appellate court has the same opportunity as the trial court to determine the probative force and legal effect of the written record.
A custody order can only be modified upon a showing that there has been a substantial and material change in the parties’ circumstances since the entry of the prior custody award, and that the best interests and welfare of the child will be promoted by a change of custody. Bennett v. Bennett, 73 So. 2d 274 (Fla.1954); Belford v. Belford, 159 Fla. 547, 32 So. 2d 312 (1947); Jones v. Jones, 156 Fla. 524, 23 So. 2d 623 (1945); Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964); Sanders v. Sanders, 376 So. 2d 880 (Fla. 1st DCA 1979); Garner v. Garner, 193 So. 2d 673 (Fla. 2d DCA 1967). When a change of custody is sought, a trial court has considerably less discretion, and such a change must be supported by substantial evidence. Bennett v. Bennett, supra; Bel-ford v. Belford, supra; Tash v. Oesterle, 356 So. 2d 61 (Fla. 3d DCA 1978); Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967). Neither the husband’s remarriage nor his increased material wealth constitutes a change in circumstances sufficient to justify modification of custody. Anderson v. Anderson, 309 So. 2d 1 (Fla.1975); Belford v. Belford, supra; Ritsi v. Ritsi, supra; Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971).
Applying these principles to the present case, and upon our independent review of the written reports which formed the basis for the trial court’s decision, we hold that there was not substantial evidence to support a finding that the parties’ circumstances had materially changed and that the best interests and welfare of the child would be promoted by a change of custody. Accordingly, we reverse the order of the trial court changing the custody of the child from the mother to the father with directions to reinstate the visitation rights of the father and his obligation to make child support payments to the mother. Reversed.
. Mrs. Adams, who by then lived in Tallahassee with the child, moved for a change of venue, and being denied that relief, appealed to this court. We affirmed the trial court. See Adams v. Adams, 374 So. 2d 29 (Fla. 3d DCA 1979).
. There was simply no basis upon which the Miami caseworker could make this comparative judgment. See Taylor v. Schilt, 292 So. 2d 47 (Fla. 2d DCA 1974). The fact that the father may be a fit and proper custodian is insufficient to change custody from another fit and proper custodian, the mother. . For the most part, the presumption of correctness arises from the fact that the trial court’s opportunity to observe the attitude, demeanor and responses of witnesses gives to that court the greater ability to assess credibility and from that decide the facts. West Shore Restaurant Corp. v. Turk, 101 So. 2d 123 (Fla.1958); Harmon v. Harmon, 40 So. 2d 209 (Fla.1949); Conklin v. Pruitt, 182 So. 2d 644 (Fla. 1st DCA 1966).
. This “slight” presumption of correctness in a case determined by the trial court on a written record refers only to the appellant’s burden to demonstrate error.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…riginal decree.” Teta v. Teta, 297 So. 2d at 646 (emphasis supplied). Accord Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So. 2d at 1184; Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975). Our position is additionally supported by the following rule,…
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Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…substantial change in circumstances. See § 61.1326, Fla.Stat. (1989). See also Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975), opinion modified, 327 So. 2d 55 (Fla. 1st DCA 1976); Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980). II. Specification of a Particular School The final judgment ordered that both children remain at the Creative Learning Center (CLC), where they had previously attended school, during the two-year period of time that Mr. Martine…
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Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987)…been a substantial and material change in circumstances since the dissolution of the marriage, and (2) that a change of custody would be in the best interests of the children. Perkins v. McKay, 460 So. 2d 531, 532 (Fla. 2d DCA 1984); Adams v. Adams, 385 So. 2d 688, 689 (Fla. 3d DCA 1980). [*558] From all the evidence adduced at the hearing, the master could find that there was a substantial change in circumstances. The master could properly consider the fact that the children went from a position of living in…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Harmon v. Harmon, 40 So.2d 209 (Fla. 1949)
- Belford v. Belford, 159 Fla. 547 (Fla. 1947)
- Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964)
- Bennett v. Bennett, 73 So. 2d 274 (Fla. 1954)
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Elise Coursey Jones v. Reed Jones, 156 Fla. 524 (Fla. 1945)
- W. Shore Rest. Corp. v. Turk, 101 So. 2d 123 (Fla. 1958)
- The City OF Miami v. Hamilton, 101 So. 2d 123 (Fla. 1957)
- Anderson v. Anderson, 309 So. 2d 1 (Fla. 1975)
- Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)