DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAIME ANDRES VILLALBA,
Appellant,
v.
MICHELLE FRANCHESCA VILLALBA,
Appellee.
No. 4D20-1474
[April 28, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sarah Willis, Judge; L.T. Case No. 50-2015-DR-004555-
XXXX-MB.
David M. Scott of Florida Family Law Clinic, LLC, Fort Lauderdale, for
appellant.
No brief filed on behalf of appellee.
PER CURIAM.
The former husband, Jaime Andres Villalba, appeals an order granting
the former wife’s motion to dismiss his petition for modification of
timesharing and child support with prejudice. We affirm.
The parties entered into a marital settlement agreement that provided
the former husband with roughly 20% timesharing. The agreement was
incorporated into a final judgment of dissolution entered in 2016.
In 2019, the former husband filed a supplemental petition to modify
the judgment to enable him to exercise 50% timesharing and to modify his
child support obligation accordingly. In support of modification, he
indicated that at the time of the final judgment, he was living at his
parents’ home and did not have a separate bedroom for the children, so
he was unable to agree to 50% timesharing. Now, however, his living
arrangements include an extra bedroom for the children, which he
contends is a material, substantial, and unanticipated change in
circumstances. The former wife moved to dismiss the supplemental
petition, contending that the former husband’s alleged basis for
modification did not constitute a material, substantial, and unanticipated
change in circumstances. The trial court agreed and dismissed the
petition. The former husband conceded that he cannot in good faith allege
any facts different from those already alleged.
Whether a petition to modify timesharing states a cause of action is an
issue of law reviewed de novo. Izquierdo v. Del Valle,
294 So. 3d 946, 947
(Fla. 4th DCA 2020). Dismissal of a petition for modification for failure to
state a cause of action is proper where the petition alleges grounds which,
if substantiated, would not give the trial court a basis to modify the final
judgment. See Wilson v. Wilson,
575 So. 2d 782, 783 (Fla. 2d DCA 1991).
“[A] time-sharing schedule may not be modified without a showing of a
substantial, material, and unanticipated change in circumstances and a
determination that the modification is in the best interests of the child.” §
61.13(3), Fla. Stat. (2020). “Stated differently, a movant must show that
(1) circumstances have substantially and materially changed since the
original custody determination, (2) the change was not reasonably
contemplated by the parties, and (3) the child’s best interests justify
changing custody.” Reed v. Reed,
182 So. 3d 837, 840 (Fla. 4th DCA
2016). “Demonstrating to the court that there has been a sufficient
substantial change in circumstances places an extraordinary burden on
the party seeking to modify the custody order.”
Id. (internal quotation
marks omitted) (quoting Chamberlain v. Eisinger,
159 So. 3d 185, 189 (Fla.
4th DCA 2015)).
Florida courts have repeatedly held that a parent’s mere move or life
improvement to an environment more conducive to children is not a
substantial, material, and unanticipated change in circumstances to
justify modification of timesharing. See, e.g., Bryan v. Wheels,
295 So. 3d
889, 891 (Fla. 1st DCA 2020) (“Florida law doesn’t consider such a move
[into the children’s state]—by itself and without any showing of how that
move impedes the present timesharing plan—to necessarily constitute a
substantial and material change in circumstances.”); Reed, 182 So. 3d at
841 (“The fact that the father now has a relatively stable home environment
is, in and of itself, inadequate to constitute a substantial change in
circumstances.”); Bartolotta v. Bartolotta,
687 So. 2d 1385, 1387 (Fla. 4th
DCA 1997) (“[T]he relative stability of a parent’s home environment is itself
inadequate to constitute a substantial and material change.”).
The trial court properly dismissed the former husband’s petition. The
grounds alleged, taken as true, do not establish a substantial, material,
and unanticipated change in circumstances. Additionally, nothing in the
marital settlement agreement supports a conclusion that an additional
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available bedroom in the former husband’s residence is a substantial and
unanticipated change of circumstances. Consequently, we affirm.
Affirmed.
CIKLIN, GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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