MARGARET L. PERKINS, A/K/A MARGARET L. MCKAY, APPELLANT,
v.
KENNETH I. MCKAY, III, APPELLEE

Fla. 2d DCA | 1984-12-12
No. 83-2577
RYDER, C.J., and BOARDMAN and SCHOONOVER, JJ., concur.
460 So. 2d 531 Florida District Court of Appeal, Second District (1984) Negative Treatment
Cited by 13 cases

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Synopsis

Mother appeals trial court's order granting father's petition to modify visitation rights to allow extended summer and Christmas visits in Montana. The appellate court reverses, finding the father failed to establish either a substantial change in circumstances or that the modification served the children's best interests, as the father had already moved to Montana before the divorce was finalized.


Holding

The court reversed the modification order, holding that the father failed to meet his burden of proving either a substantial and material change in circumstances or that the modification would promote the children's best interests. The father's move to Montana could not constitute a material change in circumstances because he had relocated before the final judgment was entered.


Headnotes

[1] A party seeking modification of a final judgment of dissolution of marriage concerning child visitation must prove a substantial and material change in circumstances sinc…

[2] A party seeking modification of child visitation must also prove that the best interests of the child or children will be promoted by the requested change.

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Key Quotes

“the party seeking the modification has the burden of proving that there has been a substantial and material change in the circumstances of one or both of the parties since the entry of the divorce decree and that the best interests of the child or children will be promoted by the change”

Establishes the two-part test that must be satisfied for any modification of visitation arrangements

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Facts & Procedural History

The parties married in 1972 and separated in 1979, with two children born during the marriage. In September 1979, while the father was already living …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by Margaret Perkins, formerly Margaret McKay (hereinafter “mother”), from a final order granting the amended petition of Kenneth I. McKay, III (hereinafter “father”), for modification of the final judgment of dissolution of marriage. We reverse.

The parties were married in 1972 and separated in 1979. During that period of time two children were born of the marriage. The children now live with their mother and her husband near Tampa, Florida.

In July 1979 the father moved to Louisiana. He visited the children periodically by driving to Tampa. On September 1, 1979, while the father still lived in Louisiana, he and the mother entered into a separation and property settlement agreement (hereinafter “agreement”). In April 1980, six months prior to the entry of the final decree of dissolution, the father moved to Montana where he now resides with his new wife. The marriage to Margaret McKay was dissolved on October 9, 1980. The agreement was made a part of the final judgment. Pursuant to the agreement, the mother was awarded full custody of the minor children and the father was permitted reasonable visitation rights.

On April 6, 1988, the father filed an amended petition for modification of the final judgment of dissolution of marriage seeking an order allowing the children to visit him in Montana for a period of at least six weeks during the summer and two weeks every other Christmas, the travel expenses to be paid by the father. The father alleged that the requested modification was based on the father’s relocation to Montana from Florida. There was no allegation that the requested modification was in the children’s best interest.

Two hearings were held concerning the children’s visitation, after which the lower court found that “subsequent to the entry of the final judgment a substantial change of circumstances had occurred in that the former husband has moved to the State of Montana, thereby precluding said husband from maintaining normal visitation with the minor children.” He also found that “it is in the best interest that the minor children have continual contact with their natural father.” The court then awarded the father six weeks visitation with the two children in the summer and two weeks during Christmas every other year. The mother appeals this order. It is true that in Florida “reasonable visitation” ordinarily does not include the children’s removal from the state by the noncustodial parent for visitation purposes. If a court order is couched in this general language, the proper method for expansion of visitation rights is to petition, as the father did here, for modification of the final judgment. Kranis v. Kranis, 313 So. 2d 135 (Fla. 2d DCA 1975). However, when considering petitions for modification of visitation arrangements, the trial court does not have the same degree of discretion as it does in entering the original divorce decree. Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974). The party seeking the modification has the burden of proving that there has been a substantial and material change in the circumstances of one or both of the parties since the entry of the divorce decree and that the best interests of the child or children will be promoted by the change. Taylor v. Taylor, 376 So. 2d 27 (Fla. 2d DCA 1979); see Teta v. Teta.

In this case, the trial court erred in finding that the father had undergone a substantial change in circumstances by moving to Montana after the entry of the final judgment. The record clearly indicates that the father’s move to Montana was made six months before final judgment was entered. In fact, the father had lived out of state at the time the agreement was signed. Thus, the father did not meet his burden of showing a material change of circumstances justifying a modification of the final judgment.

Moreover, the father did not allege in his amended petition for modification nor did he specifically discuss at hearing that the proposed modification was in his children’s best interests. Therefore, the requisite second showing was not made.

Accordingly, we reverse the trial court’s findings and vacate the order based upon those findings.

REVERSED.

RYDER, C.J., and BOARDMAN and SCHOONOVER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987)
    …rrangement has the burden of proving (1) that there has 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…
  • de Lapouyade v. Jonelle de Lapouyade, 711 So. 2d 1202 (Fla. 2d DCA 1998)
    …ial change in the circumstances of the parties since the entry of the original order and that the best interests of the children will be served by the modification. See Ventriglia v. Vaughan, 623 So. 2d 836, 838 (Fla. 2d DCA 1993); Perkins v. McKay, 460 So. 2d 531, 532 (Fla. 2d DCA 1984). In this case, the trial court modified the visitation schedule, finding: Approximately eighteen months ago, a visitation plan was ordered that provided for visitation by the Former Husband every ■ other weekend in North Ca…
  • Buckingham v. Buckingham, 492 So. 2d 858 (Fla. 1st DCA 1986)
    …was error. The modification of visitation is affirmed. It is true that, as wife argues, the movant for such modification must demonstrate a substantial change in circumstances and that the change will benefit the child’s welfare. Perkins v. McKay, 460 So. 2d 531, 532 (Fla. 2d DCA 1984) (emphasis in original). We cannot agree with her argument, however, that no evidence was presented as to the latter point. The original decree incorporated a stipulation that husband should have liberal visitation and approxi…

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