TELISSA A. BROWN, WIFE, APPELLANT,
v.
SCHANE D. BROWN, HUSBAND, APPELLEE
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In this family law appeal, the First District Court of Appeal reversed a trial court's modification of a child custody and support judgment because the court improperly found a substantial and material change in circumstances based solely on the former wife's accommodation of extra visitation time, which does not constitute consent to formal modification under Florida law.
The court held that accommodation of extra visitation time does not constitute consent to modification and cannot serve as a basis for modifying a parenting plan. Modification requires proof of a substantial, material, and unanticipated change in circumstances and must be in the best interests of the child, neither of which was shown here.
[1] Modification of child custody and support requires a showing of a substantial and material change in circumstances.
[2] A parent's consent to extra visitation is not a basis for modification of a custody or support order.
Previewing 2 of 4 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“Section 61.13(3), Florida Statutes, requires proof that modification of a parenting plan and time-sharing schedule is in the best interests of the child and is based upon a substantial, material, and unanticipated change in circumstances.”
Establishes the legal standard for modification of custody orders under Florida law
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Join FLexlaw to unlock all legal intelligenceThe parties' child custody and support agreement was incorporated into the final judgment of dissolution. The former husband later moved to modify cus…
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Telissa A. Brown, the former wife, appeals a final judgment which modifies a previously entered judgment of dissolution. Because there was no showing of a substantial and material change in circumstances, we reverse.
The parties’ agreement as to child custody and support, among other things, was adopted by the trial court in its final judgment of dissolution. Thereafter, the former husband moved to modify that part of the judgment pertaining to custody and child support. The matter was heard by a magistrate who stated in his recommendation:
The Court cannot say that the testimony and evidence presented by the Former Husband, alone, amounts to a substantial and material change in circumstances. However, when the testimony and evidence presented by the Former Husband is combined with the Former Wife’s lack of objection to the Former Husband receiving additional time with the child, the Court finds that this amounts to a substantial and material change in circumstances. Former Wife’s attorney did argue that the Court should not memorialize this extra time-sharing into a separate order when the existing provisions of the parties’ Consent Judgment provides that the parties can allow each other extra time when requested. The Court does not agree with the Former Wife’s attorney’s argument.
The trial court adopted this provision verbatim in its judgment granting modification of child custody and support.
To the extent the magistrate’s report finds that the former wife consented to modification, such a finding is not supported by competent, substantial evidence of record. The former wife did testify that she tried to be accommodating when the former husband asked for additional time, as she wanted the children to have a good relationship with their father. She did not consent to modification, however, as evidenced by her response opposing the motion to modify. The matter was sent to mediation, and no agreement could be reached. She continued to contest modification at the hearing. Further, as argued to the magistrate below, a parent’s consent to extra visitation is not a basis for a modification. See Henderson v. Henderson, 537 So.2d 125, 127 (Fla. 1st DCA 1988); Smoak v. Smoak, 658 So.2d 568 (Fla. 1st DCA 1995); Sidman v. Marino, 46 So.3d 1136 (Fla. 1st DCA 2010). Section 61.13(3), Florida Statutes, requires proof that modification of a parenting plan and time-sharing schedule is in the best interests of the child and is based upon a substantial, material, and unanticipated change in circumstances. See Sidman.
Accordingly, the modification judgment is reversed.
BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Georgeanne Romeo v. Romeo (Fla. 2d DCA 2020)…uivocal, and adamant that her agreement was not a stipulation that there had been a substantial, material, and unanticipated change in circumstances. To the extent the circuit court construed it as such, the court was in error. See Brown v. Brown, 124 So. 3d 424, 425 (Fla. 1st DCA 2013) ("[A] parent's consent to extra visitation is not a basis for a modification."); cf. Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., LLC, 196 So. 3d 557, 561 (Fla. 4th DCA 2016) ("When construing stipulations, a court s…
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Hutchinson v. Hutchinson, 287 So. 3d 695 (Fla. 1st DCA 2019)…to Mr. Hutchinson’s wishes, the timesharing reverted back to more closely resemble the original court-ordered plan. But this change in the parties’ dealings is not a basis for finding a substantial change in circumstances. See, e.g., Brown v. Brown, 124 So. 3d 424, 425 (Fla. 1st DCA 2013) (“[A] parent’s consent to extra visitation is not a basis for a modification.”); see also Sidman v. Marino, 46 So. 3d 1136, 1137 (Fla. 1st DCA 2010) (“As we have said regarding modification of custody arrangements, allowing…
Authorities Cited
- Smoak v. Smoak, 658 So. 2d 568 (Fla. 1st DCA 1995)
- Henderson v. Hal Henderson, 537 So. 2d 125 (Fla. 1st DCA 1988)
- McNEIL v. Kern Davis, 46 So. 3d 1136 (Fla. 1st DCA 2010)
- Sidman v. Marino, 46 So. 3d 1136 (Fla. 1st DCA 2010)