McGregor v. McGregor

418 So.2d 1073 (1982)

Shannon D. McGREGOR, Appellant,
v.
Robert B. McGREGOR, Appellee.

No. 81-568.

District Court of Appeal of Florida, Fifth District.

August 4, 1982. Rehearing Denied September 3, 1982.

John Motsinger, Jr., Orlando, and Edna L. Caruso, West Palm Beach, for appellant/cross-appellee.

Mack N. Cleveland, Jr., of Cleveland & Bridges, Sanford, for appellee/cross-appellant.

DAUKSCH, Judge.

This is an appeal from an order modifying a judgment in a marriage dissolution case. The primary issue, one which has caused this court grave concern in this case, is the changing of custody of the two minor sons from the mother to the father. We have examined this record quite carefully and must determine the father failed to carry the heavy burden placed upon him to permit the court to change the custody of nine-year-old Shawn from the mother to the father. We are quite aware it is usually best for brothers to stay together during their formative years, but we agree with the trial judge's determination that the evidence supports a change of custody for thirteen-year-old Mark. The trial judge apparently found and the evidence reveals that Mark needs to live with his father during his difficult teenage years and his father is very capable of providing the boy's needs. However, there is no evidence Shawn has the special needs which can best be provided by his father and there is ample evidence his mother is quite capable of continuing to be the fit parent the trial court first determined she was. A litigant who seeks to change a custody order carries an extraordinary burden. See Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980). We have determined that burden was not carried with regard to the change of custody of Shawn.

The order of modification, in so much as it changes the custody of Shawn, is reversed and this cause is remanded for the trial court to revisit the alimony and support matters which may need adjustment due to this decision. In all other respects the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COBB, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge, dissenting:

I respectfully dissent from the portion of the majority opinion which reverses the order of modification for the reasons stated in Kershner v. Crocker, 400 So.2d 126 (Fla. 5th DCA 1981).