SARAH LYNDEN SAPONARA v. ERNEST ADRIAN CALEB SAPONARA , 261 So. 3d 570 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SARAH LYNDEN SAPONARA,
Appellant,
v.
ERNEST ADRIAN CALEB SAPONARA,
Appellee.
No. 4D18-44
[November 21, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Keathan B. Frink, Judge; L.T. Case No. FMCE 15-
006248 (36).
Susan R. Brown of Susan R. Brown, P.A., Plantation, for appellant.
Anna-Maria Capizzi and Mark A. Seff of Seff & Capizzi Law Group, LLC,
Hollywood, for appellee.
GROSS, J.
Since at least the time of King Solomon, judges have sought to apply a
“wise and an understanding heart” 1 to the problem of adults disagreeing
over the future of a child. Here, a mother seeking to relocate with her child
challenges the order of the circuit court granting relocation but imposing
a visitation schedule not to her liking. We affirm, finding no abuse of
discretion in the court’s effort to balance the interests of the parents and
their child.
The father serves in the Coast Guard and is stationed in California; the
mother and child moved to Maryland while the divorce action was pending.
After an 11-day trial, the original trial judge crafted a timesharing schedule
that allowed the father to visit the child 12 times per year, with 10 visits
in Maryland and two in California. This schedule anticipated that the
father could work remotely at a Coast Guard base in Maryland during his
timesharing.
1 1 Kings 3:12.
Seven months after the dissolution final judgment, the mother
petitioned to relocate to Charlotte, North Carolina. The mother proposed
that the father’s timesharing would take place in North Carolina instead
of Maryland. The father objected to relocation, pointing out that the move
to Charlotte would decrease his time with the child because the closest
Coast Guard base to Charlotte is three hours away.
The circuit court held a two-day evidentiary hearing on the proposed
relocation. After closing arguments, the court asked about a timesharing
proposal the father had presented at the dissolution trial, where the bulk
of the father’s timesharing was to occur in California. The original trial
judge rejected that option in favor of a timesharing arrangement centered
in Maryland.
Counsel for the father had not discussed the California timesharing
schedule with him in preparation for the relocation hearing. Counsel for
the mother was familiar with that option, and did not think it was viable.
She advised the court that the California timesharing schedule had been
rejected by the original trial judge. She suggested adding some additional
timesharing in California.
The judge clarified that he was asking whether the California option
was considered. Counsel for the mother told the court:
No . . . -- not exactly. [The prior circuit judge] did a very
specific schedule and of course she made some presumptions
that are no longer existing. We’re saying the child doesn’t
need the speech and the other stuff and the other
interventions. Obviously, I have to concede that that’s an
issue that might allow more time in California. The problem
was, and it’s still a concern, this is my client’s concern, it’s a
very, very long trip. . . . [A]dding one more visit in California
is a no brainer.
The judge said:
You see the thing with what [the prior circuit judge] found is
that it was based on dad traveling to Maryland because that’s
where the mother was living. Now, what she found doesn’t
apply because the mother will not be living in Maryland.
After consulting with his client, counsel for the father told the court
that the father could do the California timesharing schedule. He explained
-2-
that there is a child development center on the base, and that six trips a
year to California is more economical than twelve trips a year.
The court requested that each party submit a proposed order; the
father’s was to include a California timesharing schedule and the mother’s
was to clarify the vague Charlotte schedule she had offered.
Nearly six weeks after the hearing, the court entered the order on
appeal. The order allowed the mother to relocate to Charlotte with the
child “conditioned upon” all of the father’s timesharing occurring in
California. In the order, the court attempted to balance the mother’s desire
to further her career in Charlotte, the father’s desire to spend significant
time with his child, and the best interest of the child.
Although the mother is happy with the portion of the order allowing her
to relocate, she is unhappy with the provisions dealing with the father’s
timesharing.
There is no due process violation. A relocation of a significant distance,
such as this one, necessarily involves revisiting timesharing issues for the
parent not seeking the move. Under section 61.13001(9), Florida Statutes
(2017), if a trial court approves a parent’s petition for relocation, the court
has the discretion to adjust timesharing to ensure the child has “frequent,
continuing, and meaningful contact with the nonrelocating parent . . . .”
The trial judge broached the California option in open court and asked for
input. Each party had adequate time to respond. Neither party asked to
reopen the evidence or for a continuance of the trial to offer testimony
addressed to the California option.
Contrary to the mother’s argument, the focus in a relocation case is not
on whether there is a substantial and material change in circumstances.
“There is a clear distinction between modification based on changed
circumstances under section 61.13(3) and relocation under section
61.13001 of the Florida Statutes.” Fosshage v. Fosshage, 167 So. 3d 525,
526 (Fla. 3d DCA 2015). The policies behind the modification based on
changed circumstances test “are to honor the res judicata effect of the
original final judgment . . . and to preclude parties to a dissolution from
continually disrupting the lives of children by initiating repeated custody
disputes.” Knipe v. Knipe, 840 So. 2d 335, 340 (Fla. 4th DCA 2003)
(internal quotation marks and citations omitted). Those policies do not
apply to a relocation proceeding instituted in good faith. If one parent is
relocating, the child’s life will be disrupted and the goal in crafting the
modified timesharing schedule is to ensure frequent, continuing, and
meaningful contact between the nonrelocating parent and the child. The
-3-
relocation statute anticipates that the court will modify the parties’
timesharing schedule. See § 61.13001(3)(a)6., (7)(c), Fla. Stat. (2017).
We have considered the other arguments raised and find them to be
unpreserved or without legal merit.
Affirmed.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
-4-