LOWELL T. SCHOONMAKER, II, APPELLANT,
v.
TONI-ANN ELIZABETH SCHOONMAKER, APPELLEE
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In this family law appeal, the Florida Fourth District Court of Appeal affirmed a trial court's award of primary residential custody of three minor children to the mother while remanding for clarification regarding whether the trial court intended to award shared parental responsibility. The court held that the trial court did not abuse its discretion in designating the mother as primary residential custodian in this close custody case.
The trial court did not abuse its discretion in designating the mother as primary residential custodian; however, the case is remanded for clarification on whether the trial court intended to award shared parental responsibility and to apply the statutory provision regarding ultimate responsibility over specific aspects of child welfare.
[1] An appellate court will affirm a trial court's decision on primary residential custody when the appealing party fails to demonstrate an abuse of discretion, especially in…
[2] An abuse of discretion in a custody determination is found only when no reasonable person would adopt the trial court's view.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In a custody case such as this one, an appellate court may find an abuse of discretion "only where no reasonable man would take the view adopted by the trial court."”
Establishes the deferential standard of review for custody decisions on appeal
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Join FLexlaw to unlock all legal intelligenceLowell and Toni-Ann Schoonmaker were divorcing with three minor children. The trial court awarded primary residential custody to Toni-Ann. Evidence sh…
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PER CURIAM.
Lowell T. Schoonmaker appeals a final judgment of dissolution of marriage which awarded appellee, Toni-Ann Schoonmaker, primary residential custody of the couple’s three minor children.
There was evidence at trial that either parent could have been designated the primary residential parent. We affirm because Mr. Schoonmaker has not demonstrated that the trial court abused its discretion in deciding primary custody in this close case. See Card v. Card, 706 So. 2d 409 (Fla. 1st DCA 1998). In a custody case such as this one, an appellate court may find an abuse of discretion “only where no reasonable man would take the view adopted by the trial court.” Ford v. Ford, 700 So. 2d 191, 195 (Fla. 4th DCA 1997) (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.1980)).
On our review of the trial court’s decision, we must view the evidence in the light most favorable to Ms. Schoonmaker, the prevailing party in the court below. See Wilson v. Wilson, 504 So. 2d 1278, 1279 (Fla. 1st DCA 1986). Factors favoring the mother include the following: (1) the paternal grandmother, with whom the father lives in New York, has shown that she may interfere with the mother’s visitation if custody had been granted to the father; (2) the mother had been the primary caregiver during the marriage; (3) during times of turmoil and repeated relocations, the mother was “the stabilizing factor in the children’s lives”; (4) the mother was always involved in the children’s school and extracurricular activities and the children’s welfare was always her primary focus; (5) the mother was more sensitive to the children’s needs than the father; (6) during the marriage, the father “never quite viewed his Wife and his children as his number one priority;” (7) upon the whim of the husband, the family was “moved from New York to Florida, back to New York and back to Florida on several occasions”; (8) historically, the mother has not restricted the father’s visitation; (9) according to Ms. Schoonmaker, the children’s preference was to be with their mother and half-brother; and (10) there was evidence that the father was physically abusive to the mother during the marriage.
There was ample evidence in the record to support the trial court’s ruling. The trial court was not bound by the testimony of the custody evaluator, but was free to judge the persuasiveness and credibility of that expert’s testimony, in light of the court’s knowledge and experience and the evidence in the case. See Gordon v. Smith, 615 So. 2d 843 (Fla. 4th DCA 1993).
The final judgment states only that the children “will be best served by having the wife designated as the primary residential custodian.” The judgment does not address whether the court intended to award sole or shared parental responsibility. Since there was no specific finding that shared parental responsibility would be detrimental to the children, it appears that the court intended to award shared parental responsibility. See Bader v. Bader, 639 So. 2d 122 (Fla. 2d DCA 1994); § 61.13(2)(b)2, Fla. Stat. (1997). This conclusion is supported by the trial court’s granting of visitation without restrictions and encouragement to the parties to work out their own visitation schedule, attaching the court’s schedule to the final judgment only as a fallback. We remand to the trial court to clarify whether it intended to award shared parental responsibility, and if so, to consider the application of Section 61.13(2)(b)2.a, Florida Statutes (1997), which provides that a court may grant one party the “ultimate responsibility” over specific aspects of a child’s welfare.
On the issue of fees and costs we find no reversible error. We affirm the final judg ment and remand to the trial court for clarification consistent with this opinion.
DELL, SHAHOOD and GROSS, JJ., concur.
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Aguirre v. Aguirre, 985 So. 2d 1203 (Fla. 4th DCA 2008)…in the best interest of the children that the wife have primary residential custody and authorizes a visitation schedule for the husband, the judgment does not address the issue of sole or shared parental responsibility. Schoonmaker v. Schoonmaker, 718 So. 2d 867 (Fla. 4th DCA 1998), is directly on point and requires a remand to clarify the court’s determination of shared parental responsibility. In Schoonmaker the trial court awarded the wife primary residential custody but the judgment did not address whet…
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Jameca Munroe v. Mackenson R. Olibrice, 83 So. 3d 985 (Fla. 4th DCA 2012)…ld, the best interest of the child shall be the primary consideration.”). Thus, the court must revisit its time-sharing schedule determination in consideration of the requirements of sections 61.13(2)(b) and 61.13(3). See Schoonmaker v. Schoonmaker, 718 So. 2d 867, 868 (Fla. 4th DCA 1998) (remand required on custody award for clarification as to whether trial court intended to award shared parental responsibility, where final judgment stated only that the children would be best served by having one parent des…
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Bailey v. Bailey, 176 So. 3d 344 (Fla. 4th DCA 2015)…rt’s authority to the investigator. This portion of the order is quashed. The trial court should consider, but is not bound by, the testimony or recommendations of the investigator if one is eventually properly appointed. Schoonmaker v. Schoonmaker, 718 So. 2d 867, 868 (Fla. 4th DCA 1998); § 61.20(1), Fla. Stat. (2014). Granted in part; Denied in part. TAYLOR, FORST and KLINGENSMITH, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Anibal Sella v. Unemployment Appeals Comm'n & Women's Work of Cent. Fla., 639 So. 2d 122 (Fla. 5th DCA 1994)
- Gordon v. Smith, 615 So. 2d 843 (Fla. 4th DCA 1993)
- Wilson v. Donnie Kenneth Wilson, 504 So. 2d 1278 (Fla. 1st DCA 1986)
- Ford v. Ford, 700 So. 2d 191 (Fla. 4th DCA 1997)
- State v. Money, 706 So. 2d 409 (Fla. 1st DCA 1998)
- Card v. Card, 706 So. 2d 409 (Fla. 1st DCA 1998)