Hill v. Hill , 548 So. 2d 705 ( 1989 )

548 So. 2d 705 (1989)

Regina Wesley HILL, Appellant,
v.
Fontaine Sallis HILL, Jr., Appellee.

No. 88-1624.

District Court of Appeal of Florida, Third District.

August 1, 1989. Rehearing Denied October 9, 1989.

Buchbinder & Elegant, Carolina A. Echarte and Harris J. Buchbinder, Miami, for appellant.

Albert G. Caruana, Miami, and Elizabeth M. Schwabedissen, for appellee.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

NESBITT, Judge.

Upon her divorce from appellee Fontaine Sallis Hills, Jr., appellant Regina Wesley Hill was awarded primary custody of the parties' six-year-old son, Daniel. She now urges error in the trial court's denial of her petition to relocate in the State of Alabama. We agree.

Regina was born and raised in Alabama. She went to school, worked as a teacher and married in Alabama as well. Son Daniel was born in that state. All Regina's relatives and friends live in Alabama with the exception of several relatives who live in Georgia several hours away. Ex-husband Sallis's family lives in Tennessee. In 1984, Regina agreed to leave Alabama when Sallis was offered a medical residency at Jackson Memorial Hospital in Miami. Sallis instituted an action for dissolution of marriage in March 1987. In June 1987, the parties entered into a marital settlement agreement which required Regina to give notice if she intended to leave the area. After several unsuccessful attempts at reconciliation, a final judgment of dissolution was entered in September 1987. In December 1987, Regina gave notice of her intention to return to Alabama. Sallis filed a motion to enforce shared parental responsibility and liberal and frequent visitation and to enjoin Regina from permanently removing Daniel from the four-county South Florida area. Regina's petition to relocate was denied and this appeal followed.

The test used to resolve such relocation dilemmas has evolved through this court's decision in Matilla v. Matilla, 474 So. 2d 306 (Fla. 3d DCA 1985) and the Fourth District's decision in Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983) to include the following six elements:

1. Whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children.

2. Whether the motive for seeking the move is for the express purpose of defeating visitation.

3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent.

5. Whether the cost of transportation is financially affordable by one or both of the parents.

6. Whether the move is in the best interests of the child. (This sixth requirement we believe is a generalized summary of the previous five.)

See DeCamp v. Hein, 541 So. 2d 708, 711 (Fla. 4th DCA 1989), citing D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd, 144 N.J. Super. 352, 365 A.2d 716 (1976). Applying these six criteria to the facts of the case at hand, we find the trial court's decision prohibiting Regina's move to Alabama was error.

Regina knows the city in which she plans to relocate with Daniel. As stated above, numerous family and friends of both Regina and Daniel live in Alabama. Regina's mother has testified that if Regina lives in Alabama, she will be able to spend time with Daniel every day after three o'clock. Regina has a definite job offer in Alabama.

All parties including the husband testified as to Regina's sincere desire to return to Alabama. She has clearly demonstrated that the move is not an attempt to frustrate or deny visitation to Sallis and has shown she will adhere to any substitute visitation schedule set by the court if she is allowed to move. She has offered to bring Daniel back to Miami to visit with Sallis every month for four or five days and stated that she would comply with a visitation schedule which would allow the father and son to share school holidays and summer vacations.

Regina has fully complied with the order appealed, notwithstanding a showing that she is extremely unhappy in Miami to the point that it has affected her health. Moreover, Daniel's quality of life would improve upon a move to Alabama as he would be surrounded by a happier mother as well as loving relatives and friends. Additionally, because Regina will be employed and Sallis is a physician, we cannot say costs of transportation between the father and son would prohibit them from travelling to visit one another. Regina's expert testified to the effect that because of the bitterness and turmoil which appears to have been occasioned by the dissolution action, the move would benefit Daniel by removing him from this atmosphere.

Therefore, we find that the trial court's order denying Regina the right to return to Alabama and requiring her to reside in the four-county South Florida area was error. See Pintado v. Leggett, 545 So. 2d 311 (Fla. 3d DCA 1989), citing DeCamp v. Hein, 541 So.2d at 711; Bachman v. Bachman, 539 So. 2d 1182 (Fla. 4th DCA 1989); Matilla, 474 So.2d at 306.

Accordingly, the order denying Regina the right to relocate Daniel to Alabama is reversed. The petition to relocate is granted, and the cause is remanded to the trial court to establish visitation either in accordance with Regina's proposed visitation schedule or some other appropriate plan.

LEVY, J., concurs.

SCHWARTZ, Chief Judge (specially concurring).

I entirely agree with the result reached by the court and the supporting reasons stated in Judge Nesbitt's opinion. I wish to articulate, however, my own understanding of the underlying rule of law applicable to the present issue as it has developed in recent cases of this court. See Pintado v. Leggett, 545 So. 2d 311 (Fla. 3d DCA 1989) (mother permitted to move with child to Virginia); Landa v. Landa, 539 So. 2d 543 (Fla. 3d DCA 1989) (same; Chile); Matilla v. Matilla, 474 So. 2d 306 (Fla. 3d DCA 1985) (same; Michigan); Anderson v. Anderson, 461 So. 2d 130 (Fla. 3d DCA 1984) (same; Missouri); see also DeCamp v. Hein, 541 So. 2d 708 (Fla. 4th DCA 1989) (same; New Jersey); Bachman v. Bachman, 539 So. 2d 1182 (Fla. 4th DCA 1989) (same; New Jersey); Cook v. Voth, 522 So. 2d 899 (Fla. 2d DCA 1988) (same; Collier County), review denied, 531 So. 2d 1355 (Fla. 1988). But cf. Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. 3d DCA 1988) (father not permitted to move with children to Iowa). See generally Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988); D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (Ch.Div. 1976), aff'd, 144 N.J. Super. 352, 365 A.2d 716 (App.Div. 1976). As I see it, it is simply that so long as the parent who has been granted the primary custody of the child^[1] desires to move for a well-intentioned reason and founded belief that the relocation is best for that parent's — and, it follows, the child's — well-being,^[2] rather than from a vindictive desire to interfere with the visitation rights of the other parent, the change in residence should ordinarily^[3] be approved.

This rule inevitably flows, I believe, from a consideration of what all acknowledge is the touchstone of the issue: the best interests of the child. Inasmuch as it is a priori the case that those interests have already resulted in an award of custody to a particular parent, either by agreement or court order, it follows that the child should live wherever that residence may be rather than in what is by definition the less important location of the other parent.^[4] To favor, in other words, the home preferred by the visitor over that of the custodian — as was the case in such, I think, wholly misguided decisions as Parker v. Parker, 519 So. 2d 673 (Fla. 1st DCA 1988), review dismissed, 531 So. 2d 1354 (Fla. 1988); Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983); and Giachetti v. Giachetti, 416 So. 2d 27 (Fla. 5th DCA 1982) — represents a clear failure of legal logic, if nothing more. The latter result is particularly unjustified when, as here, the visitor — who so far has almost always been the father — is financially able either to exercise his visitation rights at the mother's home, to transport the child from that home to his own, or both. Indeed, since the child's welfare is the only concern, it would make as much or more sense to require the father to move entirely to the mother's chosen home so as to exercise his access to the children, as the reverse requirement that the mother remain where she does not wish to live in order to accommodate the father.

Viewed in this light, I must think that those cases which exalt the father's convenience in seeing the children at the place he makes his living over a sincere desire of the mother to live where she wishes, e.g., Giachetti, 416 So.2d at 27; see Parker, 519 So.2d at 673, are informed by a thoroughly indefensible attitude that the mother's personal wishes are somehow less worthy and valuable than the desires of the male parent and the preference accorded the place where he pursues the money-making function he still so often performs in our society. This is just the kind of invidious distinction that, with respect to the financial relationship of married partners, the supreme court sought to eliminate in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). See Colucci v. Colucci, 392 So. 2d 577, 579 (Fla. 3d DCA 1980). I strongly disagree with those courts which have failed to apply the same principle in this vital area of the law. See, e.g., Cole v. Cole, 530 So. 2d 467 (Fla. 5th DCA 1988); Parker, 519 So.2d at 673; Jones v. Vrba, 513 So. 2d 1080 (Fla. 5th DCA 1987); Johnson v. Johnson, 455 So. 2d 1332 (Fla. 4th DCA 1984); McIntyre v. McIntyre, 452 So. 2d 14 (Fla. 1st DCA 1984); Costa, 429 So.2d at 1249; Giachetti, 416 So.2d at 27; see also Kantor v. Kantor, 545 So. 2d 1378 (Fla. 4th DCA 1989). As evidenced by this decision and others, however, this court is fortunately not among them.

NOTES

[1] While this opinion is phrased in pre-Shared Parental Responsibility Act nomenclature, there is no substantive difference. See Radin v. Radin, 497 So. 2d 658 (Fla. 3d DCA 1986), review denied, 501 So. 2d 1283 (Fla. 1986).

[2] Just as the emotional health of the custodian is almost invariably reflected in her child's wellbeing, so the opposite is the case. See D'Onofrio v. D'Onofrio, 144 N.J. Super. at 206, 365 A.2d at 30, adopted in Matilla and DeCamp.

[3] It is not the function of a special concurrence, which reflects only the writer's non-binding individual views, to cover the entire field of the particular subject matter. It might be appropriate to suggest, however, that the general principle espoused here might not apply, for example, if, as may more likely occur when older children are involved, the trauma of moving from the youngster's familiar surroundings — including other members of the family, friends, school and the like — outweighs that involved in separating from the custodian. See Pino v. Pino, 418 So. 2d 311 (Fla. 3d DCA 1982).

While the general principle I have stated is of course also subject, if applicable, to the specific terms of an existing final judgment and to the necessity of a cognizable change of circumstances to alter them, I suggest that a custodian's legitimate desire to move, if it arises after the final judgment, would qualify as a basis to support any required modification. See Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983) (Anstead, J., dissenting).

[4] An appropriate approach to the problem is to start with the hardly debatable assumption that each parent has the right to live where he or she wishes. It is to state the obvious that, in this instance, the child should then be placed with that parent whose custody has been deemed to forward his best interests even if that location does not happen to be Florida.