PATRICIA ANN ACKERSON A/K/A PATRICIA ANN ACKERSON MURPHY, APPELLANT,
v.
MICHAEL VINCENT MURPHY, APPELLEE

Fla. 5th DCA | 1993-08-10
No. 93-176
THOMPSON, J., concurs., GOSHORN, J., concurs in part, dissents in part, with opinion.
622 So. 2d 154 Florida District Court of Appeal, Fifth District (1993) Positive Treatment
Cited by 16 cases

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Synopsis

The Fifth District Court of Appeal reversed a trial court's modification of child custody, holding that the father failed to demonstrate a substantial change in circumstances warranting a modification of the existing custody arrangement. The court emphasized that the child was thriving under the current custody terms and that the father's inconvenience did not justify a dramatic disruption of the child's stability.


Holding

The modification order was reversed because the father failed to meet the legal standard for modification—demonstrating both a substantial change in circumstances since the original order and that the child's welfare would be promoted by the change. The father's inconvenience in adjusting his practice could not outweigh the stability and flourishing condition of the child under the existing custody terms.


Headnotes

[1] A party seeking to modify a child custody provision in a final judgment of dissolution must demonstrate a substantial change in circumstances and that the modification wi…

[2] A trial court errs by considering a counter-petition that significantly alters the relief sought and denies the opposing party adequate notice.

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Key Quotes

“the father failed to meet the standard necessary for modification, that a substantial change in circumstances has occurred since entry of the original order and that the welfare of the child would be promoted by a modification”

Establishes the legal standard required for modifying a custody decree

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Facts & Procedural History

The mother held custody of a five-year-old child from 1:00 p.m. Sundays until 7:00 p.m. Thursdays. The mother petitioned to modify the custody arrange…

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Opinion of the Court
COBB, Judge.

COBB, Judge.

We review an order modifying a child custody provision contained in a final judgment of dissolution of marriage.

The mother, who had custody of the five year old child from 1:00 p.m. Sundays until 7:00 p.m. Thursdays petitioned to modify paragraph 4 of the final judgment of dissolution to accommodate the child’s school schedule and to give her custody one weekend per month. After almost three months, hearing was finally held and at the commencement thereof, the father presented, for the first time, a counter-petition seeking to have weekday custody changed to him, with the child attending a different school. Under this scenario, the mother would be accorded weekend custody three weekends out of each month. The trial court denied the mother’s motion to strike this counter-petition and ultimately granted the father the modification he sought while denying the mother’s petition.

We reverse the order of modification. Beside the procedural irregularities countenanced by the trial court,1 the father failed to meet the standard necessary for modification, that a substantial change in circumstances has occurred since entry of the original order and that the welfare of the child would be promoted by a modification. Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA1991), rev. denied, 598 So. 2d 75 (Fla.1992); Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA1991).

The record establishes without contradiction that the child is a happy, well adjusted, well cared for five year old who is doing well in kindergarten. The child has clearly adapted to the custody terms of the final judgment and is flourishing. While some inconvenience has arisen as a result of the fact that custody transfers to the father on Thursday evenings,2 the father, a self-employed dentist, testified that he would be able to adjust his practice to fit his child’s school schedule. The inconvenience to the father under these circumstances simply cannot outweigh the stability existing in the child’s life and does not warrant the dramatic change ordered by the court.

We recognize that the trial court fashioned what it believed was an ideal custody schedule which, if this were an initial custody determination, would likely be sustainable. However, this is a modification proceeding and the evidence presented does not warrant a change in the terms of the original custody decree. Therefore, we reverse the order of modification and remand the cause for entry of an order denying modification. Because of the expedited nature of this appeal, no motion for rehearing will be entertained.

REVERSED and REMANDED.

THOMPSON, J., concurs.

GOSHORN, J., concurs in part, dissents in part, with opinion.

. The trial court should not have considered the father’s belated counter-petition as the procedure employed denied the mother adequate notice of the relief sought which was significantly different in kind than that sought by the mother. See Richmond v. Richmond, 537 So. 2d 1039 (Fla. 5th DCA1988); Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA1982).

. The father lives approximately 20-25 miles from the mother.

Other
GOSHORN, Judge,

GOSHORN, Judge,

concurring in part, dissenting in part.

I agree that due process requires that we reverse the order of modification because the father’s belated and untimely counter-petition for modification was not at issue and ready for trial. I disagree, however, that this court should direct the trial judge to enter an order denying the father’s requested modification. This cause should be remanded to allow the mother to respond to the counter-petition and prepare for trial on the issues raised.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Murphy v. Lenora D. Ridgard, 757 So. 2d 607 (Fla. 5th DCA 2000)
    …be heard were abridged by the summary denial of his petition. Due process principles apply to modification proceedings including child custody and visitation matters. See Wilson v. Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996); Ackerson v. Murphy, 622 So. 2d 154 (Fla. 5th DCA 1993): Shaw v. Shaw, 455 So. 2d 1156 (Fla. 5th DCA 1984). In this case, no motion seeking summary adjudication of the father’s second amended petition was filed. The matter was not at issue when, following the hearing on the mother’s p…
  • Regan v. Regan, 660 So. 2d 1166 (Fla. 3d DCA 1995)
    …supported, as is also required, by a substantial change of circumstances which has adversely affected her welfare. See Wages v. Wages, 660 So. 2d 797 (Fla. 5th DCA 1995); Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993); Ackerson v. Murphy, 622 So. 2d 154 (Fla. 5th DCA 1993); Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991), review denied, 598 So. 2d 75 (Fla.1992); Ritsi v. Ritsi 160 So. 2d 159 (Fla. 3d DCA 1964), cert. denied, 166 So. 2d 591 (Fla.1964). Notwithstanding the infantile conduct…
  • Hammond v. Howard, 828 So. 2d 476 (Fla. 5th DCA 2002)
    …n Kristy being held to the higher standard of showing that a substantial change in circumstances had occurred since entry of the original order and that the welfare of the child would be promoted by a modification of custody. See Ackerson v. Murphy, 622 So. 2d 154 (Fla. 5th DCA 1993); Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980). This was not the correct standard given that there has never been a final custody determination. The best interest test, which generally governs custody disputes betwe…

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