SANDRA K. NEELY, APPELLANT,
v.
MICHAEL D. NEELY, APPELLEE

Fla. 1st DCA | 1997-04-04
No. 96-2861
JOANOS and VAN NORTWICK, JJ., concur.
691 So. 2d 39 Florida District Court of Appeal, First District (1997) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Sandra Neely appealed an order modifying custody of the parties' minor child from the mother to the father. The trial court modified the original custody arrangement—which had been agreed to by both parties in their marital settlement agreement—without finding a substantial change in circumstances, applying the wrong legal standard. The appellate court reversed and remanded for reconsideration under the correct standard.


Holding

A trial court must apply the substantial change in circumstances standard when modifying an original custody order, even if that order was entered pursuant to an agreement between the parties. The trial court erred by declining to enforce the agreement without applying this required legal standard, and the case must be remanded for reconsideration under the correct standard.


Headnotes

[1] A court must find a substantial change in circumstances before modifying an original custody order, even if the order was entered pursuant to an agreement between the par…

[2] A trial court abuses its discretion when it modifies a custody order without applying the correct legal standard, including the requirement to find a substantial change i…

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Key Quotes

“In modifying an original custody order, even if it is one that was entered pursuant to an agreement between the parties, the court must determine whether there has been a substantial change in circumstances, and whether the welfare of the child will be promoted by the change in custody.”

Establishes the controlling legal standard that the trial court failed to apply

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Facts & Procedural History

Michael and Sandra Neely divorced in 1993 with a marital settlement agreement providing that the father would be the primary residential parent for th…

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Opinion of the Court
WOLF, Judge.

WOLF, Judge.

The former wife appeals from an order granting primary residential responsibility to the former husband. She alleges that the trial court abused its discretion in modifying the final judgment without finding that there had been a substantial change in circumstances. We determine that the trial court incorrectly determined that this standard was not applicable, and we reverse and remand for further consideration.

Michael D. Neely, appellee, and Sandra K. Neely, appellant, were married on September 21, 1985, in Gainesville, where they have both resided until this time. The parties are the parents of a minor child, Ashley Nicole Neely, bom July 25, 1989. The parties divorced on May 3, 1993. The final judgment of dissolution of marriage incorporated the parties’ marital settlement agreement. It was agreed in their settlement that the parties would share parental responsibility for their daughter Ashley, that the father would be the primary residential parent for three years while appellant was enrolled in nursing school, and at the end of the three-year period, the mother would become the primary residential parent. At the time of the modification hearing, the mother had already become the primary residential parent pursuant to the parties’ agreement.

The final judgment of dissolution of marriage states:

Primary physical residence of the parties’ minor child shall be with the Husband for a period of three (3) years. At the end of said time the primary physical residence of the parties minor child shall be with the wife.

Appellant became engaged to Kevin Thomas Watkins, a physician who is also a captain in the air force. Dr. Watkins will complete a two-year fellowship in surgical oncology at the University of Texas Medical Center. Dr. Watkins testified that there is a possibility he may be reassigned overseas after these two years, or that they might move to San Antonio, Texas. Appellant had plans to marry Dr. Watkins on November 30,1996.

Around March 11, 1996, appellee filed a petition for modification of final judgment alleging that since the entry of final judgment a substantial change of circumstances had occurred. Appellee based his allegations on appellant’s forthcoming plans to move to Texas, and claimed that the move would affect the stability of the child.

In granting modification, the court did not base its decision on whether there has been a substantial change in circumstances. The court stated, “I’m finding that the parties made an agreement, the question is whether or not I’m going to effectuate the agreement they made, and the answer is no.” In the order regarding primary physical residence at issue here, the court found: “If the court were to enforce the terms of the parties separation and property settlement agreement, the child would now have to be moved to Texas.” The court declined to effectuate the terms of the agreement and entered an order granting primary physical residence to the father, based on appellant’s move to Texas.

In modifying an original custody order, even if it is one that was entered pursuant to an agreement between the parties, the court must determine whether there has been a substantial change in circumstances, and whether the welfare of the child will be promoted by the change in custody. Buttermore v. Meyer, 559 So. 2d 357 (Fla. 1st DCA 1990). Because the trial court applied the wrong legal standard, we reverse and remand so that the trial court may apply the correct legal standard in this modification proceeding.

JOANOS and VAN NORTWICK, JJ., concur.


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Citator

Cited By

  • Kilgore v. Kilgore, 729 So. 2d 402 (Fla. 1st DCA 1998)
    …dy determination. The party seeking a change in custody bears the extraordinary burden of proving (1) a substantial and material change of circumstances, and (2) the welfare of the child will be promoted by the change in custody. See Neely v. Neely, 691 So. 2d 39, 40 (Fla. 1st DCA 1997); Myers v. Myers, 673 So. 2d 49, 50 (Fla. 1st DCA 1995); Smoak v. Smoak, 658 So. 2d 568 (Fla. 1st DCA 1995); Blosser v. Blosser, 707 So. 2d 778, 780-81 (Fla. 2d DCA 1998). A modification order should be reversed if the noncust…
    1 / 2
  • Wilson v. Wilson, 827 So. 2d 401 (Fla. 2d DCA 2002)
    …an, 558 So. 2d 149, 151 (Fla. 3d DCA 1990). See also Wells v. Wells, 501 So. 2d 700, 701 (Fla. 2d DCA 1987). Because the order denying relocation appears to be based, at least in part, on an incorrect legal standard, we reverse. See Neely v. Neely, 691 So. 2d 39, 40 (Fla. 1st DCA 1997). On remand, the trial court must reconsider the evidence and the statutory factors under the correct legal standard, and its ruling should demonstrate that the proper standard was applied. See Geibel v. State, 817 So. 2d 1042…
  • Boykin v. Boykin, 843 So. 2d 317 (Fla. 1st DCA 2003)
    …ial and material change in circumstances. We begin our analysis with the established principle that the trial court does not have the same broad discretion to modify custody that it exercises in initial determinations of custody. See Neely v. Neely, 691 So. 2d 39, 40 (Fla. 1st DCA 1997); Dobbins v. Dobbins, 584 So. 2d 1113, 1116 (Fla. 1st DCA 1991); Zediker v. Zediker, 444 So. 2d 1034, 1037 (Fla. 1st DCA 1984); Walfish v. Walfish, 383 So. 2d 274, 275 (Fla. 3d DCA 1980). The party seeking a modification of cu…

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