FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2742
_____________________________
BROOKE LARAE NESS f/k/a
Brooke Larae Martinez,
Appellant,
v.
ROBERT JASON MARTINEZ,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Keith Brace, Judge.
June 13, 2018
B.L. THOMAS, C.J.
Appellant raises several issues challenging the lower court’s
order denying her petition for relocation and granting Appellee’s
petition for modification of time-sharing. We address each of
Appellant’s arguments.
We reject Appellant’s argument that the trial court violated
the holding of Perlow v. Berg-Perlow, which states that while a
proposed order “can serve as a starting point and reminder of the
facts and issues that should be considered . . . such submissions
cannot substitute for a thoughtful and independent analysis . . .
by the trial judge.”
875 So. 2d 383, 389-90 (Fla. 2004). “But
Berg-Perlow held only that a judge should announce findings
when possible; it did not mandate that he or she do so[.]” In re:
T.D. v. Department of Children and Family Servs.,
924 So. 2d
827, 831 (Fla. 4th DCA 2005) (emphasis in original). Here, after
actively participating in the trial, the court stated it would review
the exhibits before reaching a decision, and neither party
objected to the court’s request for written closing arguments and
proposed orders. See Empire World Towers, LLC v. CDR
Creances, S.A.S.,
89 So. 3d 1034, 1046 (Fla. 3d DCA 2012)
(holding there was no impropriety where the trial court adopted
one party’s proposed order after submissions from both parties);
Beharry v. Drake,
52 So. 3d 790, 792 (Fla. 5th DCA 2010)
(affirming order adopted verbatim from one party’s proposed final
judgment where both parties submitted proposals, the court did
not enter judgment until six days after receiving the proposals,
the record did not reveal any impropriety, and the findings were
supported).
We also disagree with Appellant’s contention that the trial
court reversibly erred in denying her petition for relocation. An
order on a petition for relocation is reviewed for an abuse of
discretion, and the appellate court considers whether competent,
substantial evidence supports the court’s findings under section
61.13001(7), Florida Statutes. Muller v. Muller,
964 So. 2d 732,
733 (Fla. 3d DCA 2007). While there is no presumption in favor
of or against allowing relocation, the party seeking to relocate
carries the burden to prove the move is in the child’s best
interest. See § 61.13001(7)-(8), Fla. Stat.
Appellant asserts there was evidence that relocation was in
the child’s best interest, as the child had always done well in her
care, she had secured stable employment in Alabama with an
increased salary and more job security, and her proposed
relocation plan included more overnight time-sharing for
Appellee than under the final judgment of dissolution. She
further argues the court failed to consider the financial benefits
to be gained by relocation.
The court’s findings as to the benefits and detriments of the
proposed relocation are supported by competent, substantial
evidence. See
Muller, 964 So. 2d at 733. This evidence supports
the court’s conclusion that relocation would remove the child from
2
the extended family, and that relocation would not increase the
child’s educational opportunities. Although our view may not be
the same as that of the trial court, we can only review the record
for supporting evidence, and cannot ‘“engage in ‘reweighing the
evidence and making the value judgments that are appropriate
for the trial judge.’” Botterbusch v. Botterbusch,
851 So. 2d 903,
904-05 (Fla. 4th DCA 2003) (quoting Flint v. Fortson,
744 So. 2d
1217, 1218 (Fla. 4th DCA 1999)). The trial court did not ignore
the evidence presented by Appellant, but found these benefits
were outweighed by the negative impacts on the child that would
result from the relocation.
We must disagree also with Appellant’s argument that the
trial court reversibly erred in its order modifying time-sharing.
Appellate courts review orders modifying time-sharing for an
abuse of discretion, although the discretion afforded to trial
courts in modification is narrower than in initial time-sharing
determinations. Ragle v. Ragle,
82 So. 3d 109, 111 (Fla. 1st DCA
2011). A modification order must be supported by competent,
substantial evidence showing there has been a substantial and
material change in circumstances since the final judgment of
dissolution, and that the modification will be in the best interests
of the child. Lewandowski v. Langston,
969 So. 2d 1165, 1169
(Fla. 5th DCA 2007); see also § 61.13(3), Fla. Stat.
Appellant asserts that the court’s decision to grant
modification was based solely on her relocation and on the
parties’ agreement to temporarily expand Appellee’s time-sharing
upon his return from deployment, arguing that neither of these
are legally sufficient bases for modification. See, e.g., Segarra v.
Segarra,
947 So. 2d 543, 547 (Fla. 3d DCA 2006) (“A desire to
relocate alone, as a matter of law, is not a substantial change in
circumstances sufficient to warrant modification of custody.”);
Smoak v. Smoak,
658 So. 2d 568, 569 (Fla. 1st DCA 1995)
(explaining that using the parties’ mutual agreement to
temporarily expand visitation as the basis for modification would
discourage cooperation between parents).
Relocation alone is not necessarily sufficient to constitute a
substantial change of circumstances warranting modification of
the time-sharing arrangement. See, e.g.,
Ragle, 82 So. 3d at 112;
3
Ogilvie v. Ogilvie,
954 So. 2d 698, 701 (Fla. 1st DCA 2007);
Segarra, 947 So. 2d at 547. However, in Rossman v. Profera, the
Fourth District affirmed an order denying relocation and
granting modification under circumstances similar to those
presented here.
67 So. 3d 363 (Fla. 4th DCA 2011). In Rossman,
the court recognized the general proposition that relocation alone
cannot support modification, but observed:
A vital factor, however, distinguishes the instant case
from the aforementioned cases: the mother had already
relocated, despite a pending relocation request based
upon the prior final judgment’s explicit restriction on
relocation, and the mother did not intend to move back to
Florida. The trial court’s denial of the relocation
request, which we have already addressed and affirmed,
properly denied the request to relocate with the minor
child. This meant that the minor child would not be
leaving Florida. However, the mother had already
moved to Texas and was not returning. The end result
was this: the minor child, who was not leaving Florida,
lived in an entirely different state from the then-
custodial parent, who was not moving back to Florida.
Given this unique situation, the evidence clearly
indicated that a substantial change in circumstances
had occurred.
Id. at 367 (footnote omitted; emphasis in original).
Here, under the final judgment of dissolution, the parties
were prohibited from moving more than fifty miles from their
present residence without following the provisions of section
61.13001, Florida Statutes. While Appellant did notify Appellee
of her intention to move a month before the relocation, she did
not secure his written consent or file a formal petition, as
required. § 61.13001(3), Fla. Stat. And there was no indication
that Appellant planned to return to Florida if the relocation
petition were denied. Cf.
Rossman, 67 So. 3d at 365 (noting
testimony and closing argument indicating “that the mother was
unwilling to return to Florida, no matter how the court ruled on
her relocation request.”).
4
We again caution trial courts, however, that it is not proper
to use a parent’s cooperation against that parent. As we have
previously recognized, this ‘“would have the deleterious effect of
discouraging cooperation between parents when they agree to
make temporary changes in their children’s living arrangements
to serve their children’s best interests.’”
Smoak, 658 So. 2d at
569 (quoting Henderson v. Henderson,
537 So. 2d 125, 127 (Fla.
1st DCA 1988)); but see Pedersen v. Pedersen,
752 So. 2d 89, 91
(Fla. 1st DCA 2000) (holding that the view that Smoak,
Henderson, and similar cases precluded using voluntary
relinquishment of custody as a basis for modification under any
circumstances was “misleading and overly broad,” and reversing
dismissal of petition for modification where the mother
voluntarily left the child with the father for an extended period,
did not fully take advantage of visitation, and the child was
thriving with the father and wanted to remain in his care). Here,
the trial court did not commit reversible error in granting the
modification, but we do acknowledge that Appellant did not
demonstrate a disinterest in maintaining time-sharing by
allowing Appellee additional time with the child, following
Appellee’s deployment. Such cooperation is to be commended.
Regarding the order on child support, we reverse and
remand the lower court’s award. We review an award of child
support to determine whether it is based on competent,
substantial evidence of the parties’ net income. Vanzant v.
Vanzant,
82 So. 3d 991, 993 (Fla. 1st DCA 2011); see also § 61.30,
Fla. Stat. (providing for calculation of child support based on the
parties’ net income, and explaining that net income is determined
by subtracting allowable deductions from gross income). Here,
the court did not make an express finding as to the parties’ gross
or net income, but ordered Appellant to pay $608 to Appellee in
monthly child support, apparently based on the support
guidelines worksheet submitted by Appellee. While the gross
income amount used for calculating Appellant’s net income
matches the figure on her most recent financial affidavit,
Appellee’s worksheet fails to subtract some of the allowable
deductions listed on Appellant’s affidavit. This discrepancy is not
explained by any testimony or other evidence in the record
contesting these deductions. Thus, because the record lacks a
basis supporting the net income used in calculating Appellant’s
5
child support obligation, the award must be reversed for
reconsideration.
Vanzant, 82 So. 3d at 993. On remand, “the
trial court shall make specific findings explaining how the award
was calculated and justifying any material deviation from the
guideline support amount.”
Id. (citing § 61.30(1)(a), Fla. Stat.).
Finally, with regard to Appellant’s challenge to the court’s
ruling on attorney’s fees and costs, an appellate court lacks
jurisdiction to review an attorney’s fees award “until both the
issues of entitlement and amount are ruled upon.” Allstate Ins.
Co. v. Jenkins,
32 So. 3d 163, 165 (Fla 5th DCA 2010); see also
Magnolia Fla. Tax Certificates v. Alexa1,
229 So. 3d 1288 (Fla.
1st DCA 2017). Here, the lower court reserved jurisdiction to
determine Appellee’s request for attorney’s fees, but did not rule
on the amount. Accordingly, we decline to consider the
arguments regarding fees and costs. See Salem v. Abram,
868
So. 2d 1213, 1214 (Fla. 2d DCA 2004) (affirming the judgment in
part, but dismissing the portion of the appeal challenging
attorney’s fees, where the trial court had not yet determined the
amount to be awarded).
AFFIRMED in part, REVERSED in part, DISMISSED in part, and
REMANDED.
BILBREY and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
David A. Carroll, Pensacola, for Appellant.
Robert Jason Martinez, pro se, Appellee.
6
