FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-843
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MEGGAN ELIZABETH MILLER,
Appellant,
v.
MATTHEW LEE MILLER,
Appellee.
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On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.
July 16, 2019
PER CURIAM.
The mother appeals a temporary order granting the father’s
petition to relocate with minor children, arguing that relocation
was not supported by competent, substantial evidence. We reverse
and remand.
A trial court may grant a temporary order permitting the
relocation of minor children if, based on the evidence from a
preliminary hearing, there is a likelihood that the court will
approve the relocation at a final hearing. § 61.13001(6)(b), Fla.
Stat. (2019). When making its relocation determination, a trial
court must consider statutory factors listed in sections 61.13(3)
and 61.13001(7), Florida Statutes. This determination must be
supported by competent, substantial evidence. Miller v. Miller,
842
So. 2d 168, 169 (Fla. 1st DCA 2003). Therefore, a determination
that all statutory factors are neutral must be supported by the
evidence presented at the preliminary hearing. See Parris v.
Butler,
264 So. 3d 1089, 1093 (Fla. 2d DCA 2019) (holding that the
trial court’s failure to explain why every statutory factor was
neutral suggested the trial court did not truly consider all relevant
evidence). Given it is unclear how statutory factors may change in
the future, prospective-based analysis of a child’s best interest is
unsound. Arthur v. Arthur,
54 So. 3d 454, 459 (Fla. 2010). We agree
with the mother that the trial court’s determination of blanket
neutrality regarding the statutory factors was not supported by
competent, substantial evidence, as the trial court did not
articulate how it reached its conclusions of neutrality. Moreover,
the trial court granted the temporary order despite the uncertainty
of the father’s chief exam status, which the trial court
acknowledged was a factor that needed to be resolved prior to
relocation. This led to an unsound, prospective-based analysis. We
reverse the temporary order granting the father’s petition to
relocate the minor children and remand for a determination
supported by competent, substantial evidence, including the
father’s chief exam status.
REVERSED and REMANDED.
LEWIS and MAKAR, JJ., concur; BILBREY, JJ., concurs with written
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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BILBREY, J., concurring.
I join in the majority opinion and write only to restate the
concerns I expressed in Horton v. Horton, 257 So 3d 1197 (Fla. 1st
DCA 2018) (Bilbrey, J., concurring). The current state of the law
is that the best interest of the child determination cannot be a
prospective-based analysis. See, e.g., Arthur v. Arthur,
54 So. 3d
2
454 (Fla. 2010); Preudhomme v. Preudhomme,
245 So. 3d 989 (Fla.
1st DCA 2018); Horn v. Horn,
225 So. 3d 292 (Fla. 1st DCA 2017).
As I stated in Horton, many of the determinations trial judges
must make in a family law case are prospective, and trial judges
should be permitted to make “reasonable, limited, prospective
modifications” when considering the best interest of the child.
Id.
at 1202. But under the current state of the law, I am compelled to
agree with the majority that reversal is required.
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E. Jane Brehany of E. Jane Brehany, P.A., Pensacola, for
Appellant.
Ross A. Keene of Ross Keene Law, P.A., and Justin T. Holman of
The Holman Law Firm, Pensacola, for Appellee.
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