VALINDA LEE SHELLEY, APPELLANT,
v.
CHARLES EDWARD SHELLEY, APPELLEE

Fla. 1st DCA | 1985-12-17
No. BF 131
SHIVERS and ZEHMER, JJ., concur.
480 So. 2d 166 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 18 cases

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Synopsis

Valinda Shelley appeals a modification order granting her ex-husband Charles custody of their severely burned and scarred daughter Lori. The court reverses, holding that the trial court abused its discretion by effectively awarding custody to the paternal grandparents without finding the mother unfit, and that the father failed to prove a substantial change in circumstances justifying modification.


Holding

The trial court abused its discretion. Absent a finding of abandonment or unfitness of the natural parent, grandparents cannot be awarded permanent custody when natural parents have not relinquished their rights. The father failed to meet the two-prong test requiring proof of both a substantial material change in circumstances and that the child's welfare would be promoted by the custody change.


Headnotes

[1] A trial court abuses its discretion by awarding permanent custody of a child to non-parents, such as grandparents, when the natural parents have not relinquished their ri…

[2] A noncustodial parent seeking to modify a prior custody award must demonstrate a substantial or material change in circumstances since the original order and that the chi…

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Key Quotes

“in the absence of a finding of abandonment, or that the natural parents are unfit, strangers, even grandparents, may not be awarded permanent custody of children when the natural parents have not relinquished their rights”

Establishes the controlling legal standard that natural parents cannot be displaced in favor of grandparents absent unfitness or abandonment

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Facts & Procedural History

Valinda and Charles Shelley divorced in May 1982, with Valinda awarded exclusive custody of their daughter Lori. Lori suffered severe burns and scarri…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Valinda Shelley appeals from a modification order which granted Charles Shelley’s petition for child custody. We reverse.

The parties’ minor daughter, Lori Shelley, was terribly burned and scarred in a boating accident at age three. Lori is now about seven years old and has resided with her paternal grandparents in Fort Walton Beach since November 1983.

In May 1982, the parties were divorced and Valinda Shelley, the mother, was awarded exclusive custody of Lori. At the time of the dissolution proceedings, the trial court was aware of Lori’s tragic accident and her special needs. Two months later, Valinda moved to Houston, Texas, in search of employment and took Lori with her. Valinda secured work as a sales representative with the Ben Rose Fabric Company. However, initially her employment with this company required extensive travel and long hours, as she was required to learn the sales region. During this time, the insurance benefits for Lori’s residential nursing care expired, so that Valinda was forced to hire live-in babysitters for Lori when she was out of town.

In November of 1983, Valinda began to experience difficulties with her live-in babysitters and concluded that during the remainder of her training period it would be to Lori’s best advantage if she temporarily relinquished custody to the paternal grandparents. There is some dispute as to whether this was the actual reason for the mother returning Lori to Fort Walton. The Shelleys have testified that Lori was delivered to their care because Valinda was experiencing disciplinary problems with the child. Valinda denies this allegation.

By the late summer of 1984, Valinda had completed her training with Ben Rose and advised the Shelleys that she would soon be picking Lori up in order to return her to Houston in time for the commencement of school. In anticipation of Valinda’s announced plans, Charles Shelley, the father, filed a petition for modification of the original custody decree asking that a temporary restraining order be issued to enjoin Valin-da from removing Lori from his parents’ care.

On the same day the petition for modification was filed, the trial court issued an ex parte temporary restraining and placement order without a hearing. The order temporarily placed Lori in the custody of her paternal grandparents. Although Valinda was aware of this order, before it could be served upon her, she picked up Lori at the home of the maternal grandparents in Pensacola and returned with her to Texas.

On 4 September 1984, while Valinda was in Houston with Lori, the trial court convened a hearing on the petition for temporary modification. As a result of the pro ceeding, an order was entered designating Charles as the “sole residential parent” and allowing Lori to reside with her paternal grandparents. It should be noted that Charles lives in Pensacola, a distance of 45 miles from his parents’ home.

Proceedings were commenced in the Texas courts to enforce the temporary restraining and placement order issued by the court below. Eventually, the Texas authorities enforced the order, and in mid-September 1984, Lori was physically removed from her classroom by Texas law enforcement officers and transported back to Florida.

A final hearing was conducted in January of 1985. The order upon petition for modification, which is the subject of this appeal, was rendered on 4 February 1985. The following language is contained therein:

The parties are hereby granted the shared responsibility for the child, but the father is granted responsibility for providing the primary physical residence for the child so long as she remains in the home of the paternal grandparents; and the father shall further have responsibility for all decisions pertaining to medical care and schooling.

As the order is.phrased, it grants constructive custody of Lori to her father’s parents. It is well settled that in the absence of a finding of abandonment, or that the natural parents are unfit, strangers, even grandparents, may not be awarded permanent custody of children when the natural parents have not relinquished their rights. Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984). There was no finding by the trial court, nor does the evidence show that Va-linda was unfit to have continuing custody of her child. Therefore, it was an abuse of judicial discretion to modify the original custody decree in this manner. Although we find that the final judgment effectively grants custody of Lori to the paternal grandparents, because the trial court’s language in the order addresses the issue of a substantial, material change in circumstances so as to justify a modification in Charles’ favor, we find it necessary to discuss the standard applicable here as well. Whenever a noncustodial parent seeks to modify a prior custody award he shoulders the burden of proving:

(1) a substantial or material change in the circumstances of the parties since entry of the original custody order, and (2) that the welfare of the child will be promoted by a change in custody.

Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984). This is due to the fact that the original decree is considered res judicata as to all matters involved and known at the time it was rendered, including the fitness of the custodial parent and the best interest of the child. Belford v. Belford, 159 Fla. 547, 32 So. 2d 312 (1947).

The trial court cites as the basis of its decision the fact that (1) Valinda moved away from Florida and took a job which required her to travel out of town, and (2) when Lori returned to Florida in November 1983, she was experiencing psychological problems. The first reason cannot justify a modification because there were no restrictions placed on Valinda’s ability to travel with her child in the original order. Likewise, the second reason cannot be validly relied upon because the trial court in determining that Lori suffered from psychological problems looked to factors which predated the original custody decree.

Moreover, there is no clear proof in the record that Yalinda in any way caused Lori to suffer from emotional problems. The tension and anxiety which Lori initially expressed in 1983 appears to more likely have been her natural reaction as a child of tender years to her parents’ divorce and the tragic accident which left her permanently disfigured. Inasmuch, we conclude that sufficient showing of a change in material circumstances has not been made nor a demonstration that a change in custodial arrangements would promote Lori’s welfare, as is required under Florida law. Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975). We have examined the remaining points urged on appeal and find them to be without merit. Accordingly, we reverse.

SHIVERS and ZEHMER, JJ., concur.


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Citator

Cited By

  • Buttermore v. Meyer, 559 So. 2d 357 (Fla. 1st DCA 1990)
    …material change in the circumstances of the parties since entry of the original custody and visitation order, and (2) That the welfare of the child will be promoted by a change in custody and visitation. See Zediker, supra, and Shelley v. Shelley, 480 So. 2d 166 (Fla. 1st DCA 1985) review denied, 491 So. 2d 280 (Fla.1986). This is due to the fact that the original decree is considered res judicata as to all matters involved and known at the time it was rendered, including the fitness of the custodial parent…
  • Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994)
    …tween the parents which was causing her behavior, if it was not merely a phase she was going through. In the absence of evidence that the custodial parent caused a child’s emotional problems, it is error to change custody. Grumney; Shelly v. Shelly, 480 So. 2d 166 (Fla. 1st DCA 1985), review denied, 491 So. 2d 280 (Fla.1986). Finally, there was no evidence whatsoever that Laura’s continued primary residence with her mother would be detrimental to her or that removing her from that home would be in her best in…
  • Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991)
    …o be a substantial change of circumstances warranting modification. Gaber v. Gaber, 536 So. 2d 381 (Fla. 3d DCA 1989); Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. 3d DCA 1988); Nissen v. Murphy, 528 So. 2d 502 (Fla. 2d DCA 1988); Shelley v. Shelley, 480 So. 2d 166 (Fla. 1st DCA 1985), review denied, 491 So. 2d 280 (Fla.1986). A move may constitute a substantial change of circumstances if the distance is far and the visitation of the other parent will be subject to significant interference as a result. Jones v…

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