NANCY E. ROBINSON, APPELLANT,
v.
JAMES FRANK ROBINSON, JR., APPELLEE
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This appeal concerns the modification of a custody judgment in a dissolution of marriage case. The Florida appellate court reversed the trial court's decision awarding the father permanent custody of an 8-year-old child, holding that the father failed to demonstrate the substantial change in circumstances required by law to modify the original custody award to the mother.
The appellate court reversed the modification, holding that the father failed to meet his burden of proving a substantial change in circumstances necessary to justify modifying the original custody award. The court found that the child's academic performance remained high despite the moves, the proximity of grandparents cannot control custody issues, the mother's need to work was contemplated in the original judgment, and the proposed childcare arrangements in Los Angeles were not shown to be detrimental to the child's welfare.
[1] A substantial change in circumstances must be shown to legally modify the custody provisions of a judgment of dissolution.
[2] A trial court has less discretion to modify custody provisions of a judgment of dissolution than it does in determining custody at the time of the original judgment.
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Join FLexlaw to unlock all legal intelligence“In order to legally modify custody, there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a judgment of dissolution as it does in determining custody at the time of the original judgment.”
Establishes the legal standard for modification of custody judgments, requiring substantial changed circumstances and limiting trial court discretion.
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Join FLexlaw to unlock all legal intelligenceThe original 1972 dissolution judgment awarded the mother permanent custody of Rhonda, age 8. In November 1974, the mother relocated to Hawaii for nur…
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[*527] GRIMES, Judge.
This is an appeal from the modification of a final judgment of dissolution in which the father was awarded permanent custody of the minor child, Rhonda, age 8.
In the original judgment of dissolution entered in 1972, the mother was awarded permanent custody. In November of 1974, the mother left Tampa and secured employment in Hawaii as a nurse. She took Rhonda with her. With approximately one month of school remaining for the child, the mother accepted more specialized employment in Los Angeles. Since Rhonda was scheduled to visit with her father for the summer anyway, the mother brought her back to Tampa to complete the school year. Thereupon, the father moved to acquire the child’s custody.
In order to legally modify custody, there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a judgment of dissolution as it does in determining custody at the time of the original judgment. Frye v. Frye, Fla.App.4th, 1967, 205 So. 2d 310.
There was no evidence that the mother was an unfit mother. In support of the modification, the father relied primarily upon three factors as indicating changed circumstances: (1) three changes of school enrollment in one year; (2) Rhonda’s grandparents live in Tampa; and (3) because of the mother’s work schedule in Los Angeles, others would have to take care of Rhonda for about two hours each day before she leaves for school. The father also points to the fact that he has now remarried and has overcome his former drinking problem.
Rhonda was at the top of her class, both in Tampa and Hawaii. Obviously, the moves did not interfere with her academic achievements. The proximity of a minor’s grandparents is desirable, but it cannot control ths issue of custody. Cf. Sheehy v. Sheehy, Fla.App.2nd, 1975, 325 So. 2d 12. It was always contemplated that the mother would have to work because the judgment awarded her only rehabilitative alimony until she finished nurses’ training. The arrangements which were being made for Rhonda’s care in Los An-geles were not shown to be detrimental to her development or welfare.
Admitting for the sake of argument that the father’s situation has changed for the better, the evidence does not indicate the substantial change of circumstances necessary to justify the custody modification. The father failed to meet his burden of proof. Spradley v. Spradley, Fla.App.1st, 1975, 312 So. 2d 215; Nicholson v. Nicholson, Fla.App.4th, 1975, 311 So. 2d 676.
REVERSED.
McNULTY, C. J., and HOBSON, J„ concur.
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Citator
Cited By (11 total)
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So. 2d at 1184; Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975). Our position is additionally supported by the following rule, also unaltered [*1038] by Canakaris, requiring the non-custodial parent, who seeks modification of the earl…
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…; and the trial judge merely found that the best interest and welfare of the children would be served by a custodial change. Such a finding was insufficient to warrant modification. 220 So. 2d at 439-40 (footnote omitted). In Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976), this court described a “reduced discretion” test: In order to legally modify custody, there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same deg…
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Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980)…ere has been a departure from established rules, commanding a reversal. When considering a petition for modification of custody, the court does not have the same degree of discretion as it does in entering the original decree. Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975). To warrant modification of a custody award, there must be competent, substantial evidence that (1) there has been a substantial or material change in the condition of the partie…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Sheehy v. Sheehy, 325 So. 2d 12 (Fla. 2d DCA 1975)
- Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975)
- Levy v. Lancelot Assocs., 312 So. 2d 215 (Fla. 3d DCA 1975)