JEFFERY D. KATES, APPELLANT/CROSS-APPELLEE,
v.
TERRI K. KATES, APPELLEE/CROSS-APPELLANT
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Florida appellate court affirmed dissolution judgment and denial of attorney's fees but struck an automatic provision transferring child custody to the mother after one year, holding that custody modifications require a formal proceeding showing valid grounds rather than automatic transfer based on trial court's assumption of future improvement.
A trial court cannot include an automatic provision in a dissolution judgment that transfers primary physical residence of a child to the mother after a specified time period; such transfers require a modification proceeding with proof of valid grounds.
[1] A trial court cannot include an automatic provision in a dissolution judgment transferring primary physical residence of a child to a parent at a future date; custody mod…
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Join FLexlaw to unlock all legal intelligence“primary physical residence remains with the husband unless and until the wife can show, in a modification proceeding, a valid, recognized reason for transfer of such residence”
Court explaining the legal standard for custody modifications under Florida law
In a dissolution case involving a two-year-old daughter, the trial court awarded primary physical residence to the husband based on the wife's volatil…
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COBB, Judge.
The final judgment of dissolution and the order denying attorney’s fees to the wife are affirmed in all respects except for the provision in the final judgment of dissolution which automatically transfers primary physical residence of the parties’ two year old daughter from the husband to the wife one year from the date of that judgment. We strike this provision.1
The trial court ordered primary physical residence of the child to be with the husband because of the wife’s volatile emotional state. Substantial competent evidence supports this decision. See, e.g., Hallman v. Hallman, 575 So. 2d 738 (Fla. 5th DCA 1991), Anderson v. Anderson, 494 So. 2d 237 (Fla. 4th DCA 1986). Under Florida law, primary physical residence remains with the husband unless and until the wife can show, in a modification proceeding, a valid, recognized reason for transfer of such residence. See Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991), rev. denied, 598 So. 2d 75 (Fla.1992); Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991); Richmond v. Richmond, 537 So. 2d 1039 (Fla. 5th DCA 1988).
JUDGMENT AND ORDER AFFIRMED; PROVISION IN JUDGMENT STRICKEN.
DAUKSCH and PETERSON, JJ., concur. . This provision was based entirely on the trial court’s stated bias in favor of allowing the mother’s home to serve as the primary physical residence for the daughter assuming the mother’s "act is cleaned up.” This bias, however, is contrary to the dictates of section 61.13(2)(b)l, Florida Statutes.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nolan Michael Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008)…oted by a modification of the custody provision. See Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991), review denied, 598 So. 2d 75 (Fla.1992). In all other respects, the final judgment of dissolution is affirmed. Further, in Kates v. Kates, 619 So. 2d 413, 414 (Fla. 5th DCA 1993), the Fifth District reversed an order directing custody of the parties’ minor child be given to the former wife one year after the entry of the order so that the former wife would have time to “clean up her act.” In reversin…
Authorities Cited
- Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991)
- Richmond v. Richmond, 537 So. 2d 1039 (Fla. 5th DCA 1988)
- Hallman v. Hallman, 575 So. 2d 738 (Fla. 5th DCA 1991)
- Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991)
- Joma Lea Anderson v. Anderson, 494 So. 2d 237 (Fla. 4th DCA 1986)