LOUIS BRAGASSA, APPELLANT,
v.
BRENDA BRAGASSA, APPELLEE
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A Florida appellate court reversed a trial court's rejection of a General Master's findings in a child custody modification case. The trial court improperly substituted its judgment for the master's findings that substantial changes in circumstances and the children's best interests supported awarding custody to the father.
The trial court erred by substituting its judgment for the master's findings. Once a court appoints a master to hear testimony and make findings of fact, it is bound by those findings if supported by competent evidence and cannot overturn them unless they are clearly erroneous. The master's findings here were supported by competent evidence and were not clearly erroneous.
[1] A party seeking modification of a child custody arrangement must prove both a substantial and material change in circumstances and that a change of custody would be in th…
[2] A move of children hundreds of miles away from a parent, despite the absence of a requirement for written permission for intrastate moves, can constitute a substantial ch…
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Join FLexlaw to unlock all legal intelligence“Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prerogative of substituting its judgment for that of the master's.”
Establishes the binding nature of master's findings when properly appointed.
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Join FLexlaw to unlock all legal intelligenceBrenda and Louis Bragassa divorced in 1984 under a settlement agreement giving Brenda primary custody and Louis extremely liberal visitation rights. T…
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PER CURIAM.
Brenda and Louis Bragassa were divorced in 1984. Under the parties’ settlement agreement, which was incorporated into the final judgment, the wife received primary custody of the parties’ two minor children. The husband received extremely liberal visitation privileges. The agreement required Louis’s written permission before Brenda could move the children out of the state. Approximately six weeks after the final judgment, Brenda moved with the two children to northern Florida. Louis then moved for a change in custody. The trial court referred the matter to a General Master who heard extensive testimony from thirteen witnesses, including both parties and a court-appointed psychologist. The master found that Louis had shown a substantial change of circumstances and also had shown that the best interests of the children would be served by granting custody to him. The trial court overruled the master’s findings and sustained Brenda’s exceptions to the master’s report. We find that the trial court improperly substituted its judgment for that of the master and reverse.
A party seeking modification of a child custody arrangement 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). 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 the same city with their father, who had been granted extremely liberal visitation privileges, to a position of living hundreds of miles away, with little opportunity for visitation. The fact that Brenda did not have to receive written permission from Louis before moving within the state does not mean that such a move could not constitute a substantial change of circumstances.
In finding that a change in custody would be in the best interests of the children, the master relied upon the testimony of a court-appointed psychologist, Dr. Ele-newski. After examining the children, both alone and with each parent, Dr. Ele-newski concluded that it would be in the best interests of the children for Louis to be primarily in charge of their care. Dr. Elenewski also testified that the children were more psychologically bonded to Louis than to Brenda. The master was within his authority in using the psychologist’s testimony as his basis for finding that the change of custody would be in the best interests of the children.
Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prerogative of substituting its judgment for that of the master’s. Matos v. Matos, 421 So. 2d 180, 184 (Fla. 2d DCA 1982). The court is thereafter bound by the master’s factual findings if they are supported by competent evidence. Dent v. Dent, 438 So. 2d 903, 904 (Fla. 4th DCA 1983), rev. dismissed, 461 So. 2d 114 (Fla.1984). The master’s findings cannot be overturned by the trial court unless the findings are clearly erroneous. Fodor v. Fodor, 379 So. 2d 466, 468 (Fla. 4th DCA 1980).
The master’s findings were supported by competent evidence and were not clearly erroneous. The trial court erred, therefore, in substituting its own judgment for that of the master’s.
Reversed.
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Citator
Cited By (29 total)
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Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989)…ustody arrangement has the burden of proving (1) that there has been a substantial 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.” Bragassa v. Bragassa, 505 So. 2d 556, 557 (Fla. 3d DCA 1987); Wilson v. Wilson, 504 So. 2d 1278 (Fla. 1st DCA 1986); Adams v. Adams, 385 So. 2d 688, 689 (Fla. 3d DCA 1980). The court’s discretion to modify custody is more limited than is its discretion in the initial determination and…
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…DCA 1993); Sherman v. Sherman 558 So. 2d 149 (Fla. 3d DCA 1990); Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989); Gaber v. Gaber, 536 So. 2d 381 (Fla. 3d DCA 1989); Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. 3d DCA 1988); Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987); Hussain v. Hussain, 493 So. 2d 1062 (Fla. 3d DCA 1986); Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Berlin v. Berlin, 369 So. 2d 434 (Fla. 3d DCA 1979); Jacobs v. Ross, 304…
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Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA 1989)…opted the recommendations. We find no error in that portion of the trial court’s order awarding support arrearages. The trial court is bound by the general master’s factual findings if they are supported by competent evidence. Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987). The master’s finding that there was no informal, oral agreement to modify the $700 per month amount is supported by competent evidence. The child support payments, therefore, “not only must be made as provided, but become vested…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980)
- Dent v. Dent, 438 So. 2d 903 (Fla. 4th DCA 1983)
- Matos v. Otsenre E. Matos, 421 So. 2d 180 (Fla. 2d DCA 1982)
- Fodor v. Fodor, 379 So. 2d 466 (Fla. 4th DCA 1980)
- Perkins v. McKAY, 460 So. 2d 531 (Fla. 2d DCA 1984)