WENDY CAROL MANDELL, NKA WENDY CAROL MENZEL, APPELLANT,
v.
TODD WILLIAM MANDELL, APPELLEE
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Wendy Mandell appeals the trial court's dissolution of marriage judgment establishing a rotating custody plan for the parties' child. The appellate court affirms, holding that the trial court did not abuse its discretion and that the statutory provision allowing rotating custody does not eliminate the common-law presumption against such arrangements.
The trial court did not abuse its discretion in ordering rotating custody because competent substantial evidence supports the finding that the husband rebutted any presumption against rotating custody. Section 61.121 does not effectively set aside the presumption against rotating custody; the statute's plain language does not suggest legislative intent to abolish the presumption.
[1] A trial court does not abuse its discretion in establishing a rotating custody plan when it reasonably relies on the testimony of a court-appointed expert whose recommend…
[2] Section 61.121, Florida Statutes (1997), does not abolish the presumption that rotating custody is not in the best interest of a minor child.
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Join FLexlaw to unlock all legal intelligence“We cannot say that the trial judge abused his discretion.”
Establishes the standard of review for custody decisions—abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe trial court ordered a rotating custody arrangement for the child of Wendy and Todd Mandell's marriage. The trial court relied on testimony from a …
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PER CURIAM.
Wendy Carol Mandell, now known as Wendy Carol Menzel, appeals the trial court’s Final Judgment of Dissolution of Marriage. She contests the establishment of a rotating custody plan for the child of the marriage. We affirm. We cannot say that the trial judge abused his discretion. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980). The trial court reasonably relied on the testimony of the court-appointed expert, to whom the parties stipulated. After examining both the husband and the wife, the expert recommended the plan as being in the best interest of the child.
Although competent substantial evidence supports a finding that the husband has rebutted any presumption against rotating custody, we take this opportunity to address one issue that the parties raised. They ask whether section 61.121, Florida Statutes (1997), effectively sets aside the long held presumption that rotating custody is not in the best interest of a minor child. See Bienvenu v. Bienvenu 380 So. 2d 1164 (Fla. 3d DCA 1980). Section 61.121, as adopted by the legislature in 1997, provides: “The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.”
If, by this language, the legislature sought to set aside the presumption against rotating custody, it failed. Nothing in the plain language of the statute suggests that the legislature intended to abolish the presumption. Our review of the limited legislative history offers little insight on the issue. We note that House Bill 1421, which enacted this provision, also amended section 61.13, Florida Statutes as follows:
61.13 Custody and support of children: visitation rights; power of court in making orders.—
(2)(d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.
H.B. 1421, 2d Sess. (Fla.1997).
The language in this amendment shows that the legislature understood how to set aside a previously established presumption. The absence of such language in section 61.121 leads us to conclude that either the legislature did not intend to set aside the presumption, or, if it did, it failed to appropriately implement its intent.
Affirmed.
WHATLEY, A.C.J., CASANUEVA and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003)…rest of the child.” Even' so, nothing in this plain statutory language indicates the Florida Legislature intended to eliminate the longstanding presumption that rotating custody is not in a minor child’s best interest. See, e.g., Mandell v. Mandell, 741 So. 2d 617 (Fla. 2d DCA 1999); Ruffridge v. Ruffridge, 687 So. 2d 48, 50 (Fla. 1st DCA 1997). To support affirmance of the modification order, the answer brief emphasizes the presumptive disapproval of rotating-custody plans. However, the former wife’s relianc…
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Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001)…ine a marital settlement agreement providing for such an arrangement and exercise its discretion in determining whether it is in the child’s best interest. See Bracken v. Bracken, 704 So. 2d 746, 747 (Fla. 4th DCA 1998). See also Mandell v. Mandell, 741 So. 2d 617, 618 (Fla. 2d DCA 1999)(holding that section 61.121 did not set aside the long held presumption that rotating custody is not in the best interest of a minor child). Florida courts have identified several factors that a trial court should consider…
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Corey v. Corey, 29 So. 3d 315 (Fla. 3d DCA 2009)…”); Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001) (holding that presumption required trial court to consider factors which may overcome the presumption); Hosein v. Hosein, 785 So. 2d 703, 704 (Fla. 4th DCA 2001) (same); Mandell v. Mandell, 741 So. 2d 617, 618 (Fla. 2d DCA 1999) (“If, by this language, the legislature sought to set aside the presumption against rotating custody, it failed. Nothing in the plain language of the statute suggests that the legislature intended to abolish the presumption.”…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)