ANTHONY L. BREWER, APPELLANT,
v.
GAIL SUSAN SOLOVSKY, APPELLEE
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The court held that ordering a child's immediate return to Florida constituted a change of custody requiring an evidentiary hearing.
Following a divorce judgment granting equal custody, the father moved to Indiana with the child and sought primary custody. The mother filed a respons…
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KLEIN, J.
The trial judge, under the assumption that she was maintaining the status quo, ordered the father, who had relocated to Indiana and had the child with him, to return the child to the mother in Florida. Under the facts of this case, this amounted to a change of custody without an evidentiary hearing or any other prerequisites. We accordingly reverse.
The judgment dissolving the marriage granted each of the parents fifty percent custody, neither being primary. Nor did the judgment preclude a parent from moving out of state with the child.
The father later moved to Indiana and, after having the child with him in Indiana during the summer of 2003, filed an emergency motion seeking to be designated primary residential custodian so that the child could attend school in Indiana. The mother, who had a pending petition for modification, filed a response seeking return of the child, who had previously attended school in Florida. At a hearing, after the court was advised of the above facts by counsel, the court ruled, without taking testimony, that the child had to be immediately returned to Florida until the modification petitions could be heard.
The court assumed that it was maintaining the status quo, but, because the judgment provided the father with the same rights as the mother, and did not prohibit relocation, this order modified the father’s custody rights. We accordingly reverse. Matin v. Hill, 801 So. 2d 1003, 1005 (Fla. 4th DCA 2001) (“For a party to obtain a temporary modification of custody, he or she must prove that: (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change.”).
WARNER and TAYLOR, JJ., concur.
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Brewer v. Solovsky, 945 So. 2d 610 (Fla. 4th DCA 2006)…So. 2d 497 (Fla. 4th DCA 2005), we reversed and remanded to the trial court its final order which was entered prematurely while this court considered an appeal of a non-final order. The non-final appeal was decided in Brewer v. Solovsky (Brewer I), 882 So. 2d 1019 (Fla. 4th DCA 2004). In Brewer II, we advised that the trial court could reinstate its final order when the non-final appeal was concluded. On remand, the trial court re-entered its final order. It is from this order that Brewer raises four issues f…
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Brewer v. Solovsky, 899 So. 2d 497 (Fla. 4th DCA 2005)…WARNER, J. We reverse the final judgment entered in this dissolution of marriage case because a non-final appeal was pending at the time of its entry. This non-final appeal was decided in Brewer v. Solovsky, 882 So. 2d 1019 (Fla. 4th DCA 2004). Florida Rule of Appellate Procedure 9.130(f) provides that when a non-final appeal is pending, the trial court may proceed with all matters, including the trial, “provided that the lower tribunal may not render a final order d…
Authorities Cited
- Nattassia Matin v. Hill, 801 So. 2d 1003 (Fla. 4th DCA 2001)