BETTY JANE TALLENT, APPELLANT,
v.
JOHN MARK TALLENT, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in modifying child custody based on the evidence presented, as there was no substantial change in circumstances justifying the modification.
[1] A trial court's modification of child custody provisions in a final judgment requires a finding of a material change of circumstances subsequent to the final judgment, wh…
[2] Difficulties with visitation between parents can be addressed by specifying visitation rights rather than by ordering rotating custody.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceFollowing a dissolution judgment awarding custody to the wife, the husband petitioned to modify custody or specify visitation. The trial court modifie…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Rotating Custody cases and more on FLexlaw
SCHEB, Judge.
Betty Jean Tallent challenges a postjudgment order alternating the custody of the parties’ two minor children. We find no significant change of circumstances to substantiate the modification. Therefore, we reverse.
The husband and wife were married in 1969. They have two children, ages eleven and seven. On July 30, 1981, the husband and wife negotiated a comprehensive separation and property settlement agreement which included provisions for custody and formed the basis of the final judgment of dissolution rendered on September 8, 1981. The final judgment recited:
That both parties are fit and proper persons to have the custody of the children awarded unto them, however it is in the best interest of the children that the Wife be the custodial parent subject to reasonable and liberal visitation rights in favor of the Husband.
Less than one year after the dissolution, the husband petitioned the court to modify the child custody provisions or in the alternative, to determine his visitation rights with specificity.1 At the hearing on the husband’s petition, the husband and wife were the only witnesses. After hearing the parties’ testimony, the trial court in its order of December 15, 1982, concluded that:
[Tjhere has been a sufficient change of circumstances to substantiate a modification of the Final Judgment as to custody. There have been some difficulties with visitation. In addition, the older boy has a serious problem that is inappropriate for his age, which is more amply described in the record. Under the present plan of visitation the children are in the father’s home as “visitors” for four days each month and the father has not had the anticipated impact on the development of the children.
The court also stated that:
It appears to this Court that the Legislature, in passing the Shared Parental Responsibility Act, has attempted to change the entire concept of custody in dissolution of marriage actions rather than simply change the labels. In this case, all of the factors favor not only shared parental responsibility but rotating custody.
The trial court recognized that the Shared Parental Responsibility Act applies only to proceedings pending on July 1, 1982, the effective date of the Act. The court, nevertheless, ordered rotating custody on a yearly basis with liberal visitation rights to the noncustodial parent during the “off years.”
A trial court has broad discretion in matters involving child custody, but it has less discretion in modifying the custody provisions of a final judgment than in making the original custody determination. Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982). Therefore, the question on appeal is whether the evidence before the trial court supports a finding that subsequent to the final judgment there has been a material change of circumstances which, in the best interest of the children, requires modification. Iljazi v. Iljazi, 436 So. 2d 326 (Fla. 2d DCA 1983). See also Strickland v. Wedekind, 436 So. 2d 250 (Fla. 5th DCA 1983).
Traditionally, orders requiring alternating or rotating custody have been met with disfavor in the courts. Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980). At least one district has held that even under the new statute “the best interests of children are not served by custodial arrangements which require the children to move back and forth between the residences of their parents.” Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983).
In ordering a modification of custody, the trial judge relied on four factors. First, the parties were experiencing some difficulties with visitation. These difficulties could have been addressed by the court specifying visitation rights rather than by ordering rotating custody. Second, while the court mentioned that the older child had a serious problem inappropriate for his age, the evidence revealed that this problem had existed for several years prior to the dissolution of the parties’ marriage. Third, the court noted that the children were in the father’s home as “visitors” for four days each month. It appears, however, that the husband had agreed to such limited visitation rights in the separation agreement which was incorporated into the final judgment. Finally, the court recited that the father has not had the anticipated impact on the development of his children. However, the parties had agreed to the wife’s having primary custody of the children, and we think that the father’s lessened impact on the children’s development was a reasonably foreseeable consequence in such a situation.
From our review of the record, we conclude that the evidence supports the trial court’s" factual findings. We disagree, however, with the court’s conclusion that a substantial change of circumstances was presented to justify a modification of the child custody order. Culpepper v. Culpepper; Sanders v. Sanders, 376 So. 2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So. 2d 1117 (Fla.1980).
Accordingly, we vacate the order modifying custody. Since the court did not reach the husband’s request for determination of visitation privileges, we remand with directions that it now address that issue. The court may, in its discretion, receive further evidence on the issue concerning visitation rights.
BOARDMAN, A.C.J., and SCHOON-OVER, J., concur. . The wife filed a counterpetition seeking increased child support, which the trial court denied in its order of December 15, 1982. While the wife appeals that order, she claims error only on the issue of modification of custody.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
DAY v. LeBLANC, 610 So. 2d 42 (Fla. 2d DCA 1992)…ded equally to both parents. A trial court has broad discretion in matters involving child custody, but it has less discretion in modifying custody provision of a final judgment than in making the original custody determination. Tallent v. Tallent, 440 So. 2d 623 (Fla. 2d DCA 1983). The father has failed to show by competent, substantial evidence that the mother’s move constitutes a substantial change of circumstances to justify a change in primary residential custody. We therefore reverse and remand for pro…
-
Ballah v. Poole, 453 So. 2d 924 (Fla. 2d DCA 1984)…from the parent previously awarded custody” must be found by the trial court before a prior custody order may be modified. Id. We hold that Iljazi is controlling in the case now before us and reverse the decision below. See also Tallent v. Tallent, 440 So. 2d 623 (Fla. 2d DCA 1983); Strickland v. Wedekind, 436 So. 2d 250 (Fla. 5th DCA 1983); Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983); Alonso v. Alonso, 432 So. 2d 174 (Fla. 3d DCA 1983); and Malchiodi v. Malchiodi, 431 So. 2d 301 (Fla. 3d DCA 1983). On…
-
Mulford v. Sullivan, 467 So. 2d 1093 (Fla. 1st DCA 1985)…arried does not generally constitute a change of circumstances sufficient to justify a change in custody. We agree. McIntyre v. McIntyre, 452 So. 2d 14 (Fla. 1st DCA 1984); Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984); Tallent v. Tallent, 440 So. 2d 623 (Fla. 2d DCA 1983); Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); and Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964), cert. denied, 166 So. 2d 591 (Fla.1964). However, in addition to the factors already enumerated, the record in this c…
Authorities Cited
- Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982)
- Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)
- Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)
- Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983)
- Jerri L. Iljazi v. Mevlud T. Iljazi, 436 So. 2d 326 (Fla. 2d DCA 1983)
- Strickland v. Wedekind, 436 So. 2d 250 (Fla. 5th DCA 1983)