CAROL PUHL n/k/a CAROL MORLEY v. THOMAS PUHL , 260 So. 3d 323 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CAROL PUHL n/k/a CAROL MORLEY,
Appellant,
v.
THOMAS PUHL,
Appellee.
No. 4D18-365
[November 28, 2018]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Sherwood Bauer, Jr., Judge; L.T. Case No.
562015DR001961.
Chet E. Weinbaum, Fort Pierce, for appellant.
No appearance for appellee.
KUNTZ, J.
The Former Wife timely appeals the circuit court’s final order granting
the Former Husband’s second amended supplemental petition for
modification of timesharing and parental responsibility. Because we find
that there was no substantial, material, and unanticipated change in
circumstances supporting modification, we reverse.
Background
The circuit court entered a final judgment of dissolution of marriage,
which incorporated an agreed parenting plan. The agreed parenting plan
provided that the parties had shared parental responsibility and, if they
could not agree, the Former Wife had ultimate decision-making authority
over the child’s education, healthcare, and religious upbringing.
One year after the court adopted the agreed parenting plan, the Former
Husband filed his second amended supplemental petition for modification
of timesharing and parental responsibility. He argued that a “substantial,
material, permanent and unanticipated change in circumstances,” relating
to the Former Wife’s care of the minor child’s health, justified amendment
to the parenting plan. The Former Husband alleged the Former Wife was
deciding healthcare issues for the child without consulting him and was
requiring the child to receive unnecessary medical treatment. As a result
of the alleged change in circumstances and the Former Wife’s alleged
“detrimental” actions, the Former Husband requested that he have
ultimate decision-making authority.
The court held an evidentiary hearing and granted the Former
Husband’s motion.
Analysis
“[A] determination of parental responsibility, a parenting plan, or 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.”
Reed v. Reed, 182 So. 3d 837, 840 (Fla. 4th DCA 2018) (quoting § 61.13(3),
Fla. Stat. (2014)).
The burden to establish the substantial, material, and unanticipated
change in circumstances is on the movant. Id. (quoting Chamberlain v.
Eisinger, 159 So. 3d 185, 189 (Fla. 4th DCA 2015)). And it is an
“extraordinary burden.” Sanchez v. Hernandez, 45 So. 3d 57, 61–62 (Fla.
4th DCA 2010) (quoting Shaw v. Nelson, 4 So. 3d 740, 742 (Fla. 1st DCA
2009)).
The Former Wife relies on Sanchez to support her position that the
court erroneously granted modification. In Sanchez, the mother was the
primary residential parent, with custody rotating between the mother in
Pennsylvania and the father in Florida. 45 So. 3d at 58. The father
petitioned for modification based on a substantial change in
circumstances—“an increased lack of communication” between him and
the mother. Id. at 58–59. The father also conceded that he agreed in the
original agreement that the mother would be the primary residential
parent. Id. at 58.
In Sanchez, the father also testified that “he learned of instances where
the mother had not kept him informed regarding various medical issues
with the child,” such as the child dislocating her shoulder and almost
developing pneumonia. Id. at 59. Notably, the mother had taken the child
to see a psychiatrist, but “[t]he father did not think there was a need for
the child to see a psychiatrist[.]” Id. at 59–60. The circuit court concluded
“that there had been a substantial and material change in circumstances”
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and granted the father’s petition, designating him as the primary
residential parent. Id. at 61.
We reversed, holding that “[e]ven when the custodial mother does not
keep the father apprised of a child’s activities, and the father has the ability
to keep himself informed, such evidence only establishes a communication
problem which does not constitute a change in circumstances for the
purposes of custody modification.” Id. at 62 (citation and footnote
omitted). We concluded that “the evidence presented to the trial court was
insufficient to meet the extraordinary burden necessary to justify judicial
intervention in the custody arrangement initially agreed upon by the
parties.” Id. (citing Wyckoff v. Wyckoff, 820 So. 2d 350, 356 (Fla. 2d DCA
2002)).
As in Sanchez, the Former Husband alleges the Former Wife is taking
the child to therapy that the child does not need. But a medical
professional diagnosed the child with the condition for which the Former
Wife seeks treatment. And the record supports a finding that the child’s
issue arose before entry of the final judgment of dissolution. The Former
Husband also conceded in his second petition that the child was diagnosed
with certain issues before the entry of the final judgment of dissolution.
These facts do not support a finding of a substantial, material, and
unanticipated change in circumstances. Thus, modification was
improper.
Conclusion
We reverse the circuit court’s order granting the Former Husband’s
second petition for modification.
Reversed.
TAYLOR and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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