DARRELL EVERETT COLE, APPELLANT,
v.
HOLLY ANN COLE, ETC., APPELLEE

Fla. 5th DCA | 1988-12-22
No. 87-2201
ORFINGER and COBB, JJ., concur.
535 So. 2d 355 Florida District Court of Appeal, Fifth District (1988) Positive Treatment
Cited by 4 cases

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Synopsis

In this motion to enforce mandate, the appellate court directed the trial judge to implement its prior reversal decision by changing primary child custody from the mother to the father, where the mother had failed to demonstrate that removing the child from Florida was in the child's best interests.


Holding

The appellate court granted the motion to enforce the mandate and directed the trial judge to immediately change primary physical residence of the child from the mother to the father and make corresponding changes to visitation and support provisions, without further discretion or evidentiary hearing.


Headnotes

[1] An appellate court's mandate directs the trial court to implement specific changes, leaving no room for further discretion on those matters.

[2] When an appellate court reverses a trial court's order regarding child custody and remands the case for specific changes, the trial court must implement those changes wit…

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Key Quotes

“By remanding for the 'requisite' changes, we clearly meant the changes necessary to effectuate our holding, that is, to change the primary physical residence of the child from the mother to the father.”

Clarifies that the mandate was not discretionary but directed specific custody changes

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Facts & Procedural History

Darrell and Holly Cole were married in 1975 and had a son in 1983. After divorce in 1985, they agreed to shared parental responsibility with the mothe…

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Opinion of the Court
DANIEL, Judge.

DANIEL, Judge.

ON MOTION TO ENFORCE MANDATE

On September 1, 1988, this court filed its opinion in Cole v. Cole, 530 So. 2d 467 (Fla. 5th DCA 1988). On September 19, 1988, our mandate issued to the trial court. Darrell Cole is now before us seeking enforcement of our mandate1 alleging that the trial judge has refused to change the custody, visitation and support provisions of the final judgment of dissolution as directed by this court.

Darrell and Holly Ann Cole were married in 1975 and had a son in 1983. Two years later, the marriage of the parties was dissolved. By agreement, the parties stipulated to shared parental responsibility with the mother having the primary physical residence of the child and the father having frequent and continuous liberal visitation rights. In addition, the parties agreed that other than for temporary vacation periods, neither party would remove the child from Florida without prior written consent from the other party or a court order. After the dissolution, the mother remarried a man whose employment required them to live out of state. The mother later filed a motion to remove the child from Florida. The father filed a motion to prevent removal of the child as well as a motion to modify the final judgment seeking a change in the primary physical residence of the child. The trial judge granted the mother’s petition to remove the child from the state and denied the father’s request for primary custody.

On appeal, we reversed this order. We specifically held that the mother had failed to show that removal from the state was in the best interests of the child. We also held that the husband had established a sufficient basis to warrant a change of custody.2 The cause was then remanded to the trial judge “for the requisite changes in custody, visitation and support provisions.” 530 So. 2d at 470. By remanding for the “requisite” changes, we clearly meant the changes necessary to effectuate our holding, that is, to change the primary physical residence of the child from the mother to the father. We did not remand for an evidentiary hearing or permit the trial judge to exercise any discretion in this matter. Accordingly, we grant the motion to enforce the mandate and direct the trial judge to change the primary physical residence of the child from the mother to the father and to make the concomitant changes in the visitation and support provisions of the final judgment.

ORFINGER and COBB, JJ., concur. . In the alternative, Cole has sought a writ of mandamus.

. In so doing, we noted that the mother's only reason for the move to another state was her husband’s employment which will apparently require additional moves in the future. The record was undisputed that the father had exercised all the extensive visitation rights available to him through the final judgment which allowed the child to spend more nights at his home than with the mother. The father’s two sisters and their children live nearby and the child’s paternal grandmother lives with the father.


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Citator

Cited By

  • Mast v. Reed, 578 So. 2d 304 (Fla. 5th DCA 1991)
    …the dissolution, it would not be a proper ground for modification in any event. . This denial has caused much discussion among the members of the court as to the current validity of Cole v. Cole, 530 So. 2d 467 (Fla. 5th DCA 1988), motion granted, 535 So. 2d 355 (Fla. 5th DCA 1988); Jones v. Vrba, 513 So. 2d 1080 (Fla. 5th DCA 1987); and Giachetti v. Giachetti, 416 So. 2d 27 (Fla. 5th DCA 1982). However, the denial of the mother’s petition was not appealed and thus neither it nor a review of the above cited…
  • Heide M. Hess Jones v. Jones, 606 So. 2d 748 (Fla. 5th DCA 1992)
    …understanding or misapprehension concerning whether the plurality opinion in the en banc case of Mast v. Reed, 578 So. 2d 304 (Fla. 5th DCA1991), specifically affirmed the doctrine of Cole v. Cole, 530 So. 2d 467 (Fla. 5th DCA), appeal after remand, 535 So. 2d 355 (Fla. 5th DCA1988); Jones v. Vrba, 513 So. 2d 1080 (Fla. 5th DCA1987); and Giachetti v. Giachetti, 416 So. 2d 27 (Fla. 5th DCA1982). In Mast, the divorcing [*750] parents of a minor child had entered into a property settlement agreement providing th…
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