ELIZABETH A. TREMBLAY, APPELLANT,
v.
RANDALL M. TREMBLAY, APPELLEE

Fla. 4th DCA | 1994-06-29
No. 93-1604
ANSTEAD and STEVENSON, JJ., concur.
638 So. 2d 1057 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 10 cases

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Holding

The court held that the trial court erred in restricting the child's residence to within 50 miles of Indian River County, requiring reconsideration under the Mize factors.


Headnotes

[1] A custodial parent's desire to relocate with a child should ordinarily be approved when the move is for a well-intentioned reason and a founded belief that the relocation…

[2] When determining whether to permit a custodial parent to relocate with a child, courts must consider factors including whether the move will improve the quality of life f…

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Facts & Procedural History

Following a dissolution of marriage, the custodial mother sought to relocate with the parties' young son from Florida to Massachusetts. The trial cour…

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Opinion of the Court
KLEIN, Judge.

KLEIN, Judge.

Elizabeth Tremblay appeals a final judgment of dissolution of marriage. We affirm all issues except that portion of the judgment restricting the parties’ son’s residence to within 50 miles of Indian River County.

Elizabeth and Randall were married in California in 1981, and moved to Massachusetts a few years later. Christopher was born in 1986 and, in 1987, Randall left them and moved to Florida. Elizabeth moved to Florida thereafter in an attempt to save the marriage; however, Randall ultimately filed for this dissolution in 1992.

Elizabeth, who is 38 years old, has two years of college and works 30 hours a week as a medical assistant at $7.00 an hour. Randall works as a carpenter in a business owned by Randall and his father with a salary of $425.00 a week as well as other benefits.

Elizabeth is from Massachusetts, and that is where her family remains. She only moved to Florida from Massachusetts in order to reunite the family, and she now wants to return to Massachusetts with Christopher where she can live with her mother, study nursing, and improve her ability to earn a living. The trial court restricted Christopher’s residence to within 50 miles of Indian River County. Because his primary physical residence is with Elizabeth, she cannot relocate. Elizabeth urges that this restriction should be reversed.

After the entry of this final judgment our supreme court clarified and changed the law regarding a custodial parent moving out of the jurisdiction in Mize v. Mize, 621 So. 2d 417 (Fla.1993). In attempting to give trial judges some guidance in this area, the court set forth the following factors as some of the things which must be considered in resolving this issue:

1. Whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children.

2. Whether the motive for seeking the move is for the express purpose of defeating visitation.

3. Whether the custodial parent, once out of jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent.

5. Whether the cost of transportation is financially affordable by one or both of the parents.

6. Whether the move is in the best interests of the child. (This sixth requirement we believe is a generalized summary of the previous five).

621 So. 2d at 420. These factors have been attributed to D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A. 2d 27 (1976), aff'd, 144 N.J.Super. 352, 365 A. 2d 716 (1976). See Costa v. Costa, 429 So. 2d 1249, 1253-54 (Fla. 4th DCA 1983), (Anstead, J., dissenting); Matilla v. Matilla, 474 So. 2d 306 (Fla. 3d DCA 1985); Hill v. Hill, 548 So. 2d 705 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 233 (Fla.1990); Bachman v. Bachman, 539 So. 2d 1182 (Fla. 4th DCA 1989); and DeCamp v. Hein, 541 So. 2d 708 (Fla. 4th DCA 1989). In addition, our supreme court adopted the principle that Judge Schwartz articulated in Hill v. Hill, 548 So. 2d 705 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 233 (Fla.1990):

[S]o long as the parent who has been granted the primary custody of the child desires to move for a well-intentioned reason and founded belief that the relocation is best for that parent’s — and, it follows, the child’s — well-being, rather than from a vindictive desire to interfere with the visitation rights of the other parent, the change in residence should ordinarily be approved.

548 So. 2d at 707-08 (Schwartz, J., specially concurring) (footnotes omitted). Mize, 621 So. 2d at 419.

The only finding the court made in the final judgment in this case regarding the restriction on residence was as follows:

The wife has testified that she wishes to move from Indian River County, Florida to further her education. The wife and child moved to Indian River County in January, 1988 and have lived here continuously since then. The majority of the child’s life has been spent in Indian River County. The husband resides here and the husband’s parents, brother and sister also live here. The husband is also employed in Indian River County. The wife has a mother and a sister who live in Massachusetts. It would be in the best interest of Christopher Tremblay, particularly at his age of six, that he have frequent and continuous contact with his father, and that if he was permitted to move to Massachusetts, which is 1,500 miles away, it would be impossible to continue the frequent contact. It would be in the best interest of the child to restrict the child’s residence to Indian River County or a radius within fifty miles of Indian River County.

The adoption in Mize of the six factors to be considered in these cases did not significantly change the law in this district, since this court had previously utilized them. Bachman and DeCamp. The adoption in Mize of what Judge Schwartz stated in his concurring opinion in Hill, however, does represent a significant change. It means that where the relocating parent is acting in good faith, permission to relocate should generally be granted; i.e., granting relocation becomes the proverbial rule, rather than the exception. See Dobson v. Samson, 623 So. 2d 473 (Fla.1993).

We therefore reverse and remand the issue of whether Christopher can move to Massachusetts for reconsideration under Mize. We affirm the judgment in all other respects.

ANSTEAD and STEVENSON, JJ., concur.


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Citator

Cited By

  • Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996)
    …ANSTEAD, Justice. We have for review Russenberger v. Russenberger, 654 So. 2d 207 (Fla. 1st DCA 1995), based on conflict with Tremblay v. Tremblay, 638 So. 2d 1057 (Fla. 4th DCA 1994), and Mize v. Mize, 621 So. 2d 417 (Fla.1993). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Although we find that these decisions can be harmonized, we accept jurisdiction in order to clarify our decision in Mize. We appr…
    1 / 2
  • Russenberger v. Russenberger, 654 So. 2d 207 (Fla. 1st DCA 1995)
    …hat the first paragraph of the trial court’s order constitutes a finding that [the interest’s of the parent who seeks to relocate] and [the child’s] well-being do not go hand in hand. (Emphasis added). Similarly, the court in Tremblay v. Tremblay, 638 So. 2d 1057 (Fla. 4th DCA 1994), suggested that the Mize court’s adoption of the Hill factors and the quotation from Judge Schwartz’s concurrence seemeá to be a pairing of contrasting viewpoints; to wit: The adoption in Mize of the six factors to be considered…
  • Garvie v. Garvie, 659 So. 2d 394 (Fla. 2d DCA 1995)
    …e child, recognizing, of course, “that where the relocating parent is acting in good faith, permission to relocate should ordinarily be granted; i.e., granting relocation becomes the proverbial rule, rather than the exception.” Tremblay v. Tremblay, 638 So. 2d 1057, 1059 (Fla. 4th DCA 1994).1 Finally, should the trial court award primary residential responsibility to the former wife, it must revisit the issue of child support. Accordingly, for the reasons expressed, we reverse this cause and remand for furthe…

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