final until disposition of timely filed motion for rehearing.
of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Karen Miller, Judge;
L.T. Case No. 50-2015-DR-012457-XXXX-NB.
Keith, Palm Beach Gardens, for appellant.
Ledezma, Palm Beach Gardens, for appellee Alan Riddle.
ON MOTION FOR REHEARING
grant the husband's motion for rehearing, withdraw our
previous opinion, and issue the following opinion in its
wife in an ongoing dissolution of marriage action appeals a
trial court order granting the husband's motion to modify
a prior temporary relief order and designating the husband
the primary residential parent. We have jurisdiction to
review this non-final order. Fla. R. App. P.
trial court did not abuse its discretion in modifying its
temporary relief order, and we affirm. We write to clarify
the standard of review that applies to modification of
pretrial, temporary relief orders concerning child custody
and time sharing. As explained below, a court is not required
to find a "substantial change in circumstances" in
order to modify a temporary custody order entered before any
final decree has been entered.
parties have two minor children. The older child is in
elementary school. The younger child is in daycare. In
December 2015, the wife filed a petition for dissolution of
marriage. In February 2016, the trial court entered an Order
for Temporary Relief establishing a temporary time sharing
schedule and designating the wife as the primary residential
parent. The order provided that the
older child would be re-enrolled in Jupiter Elementary School
in Palm Beach County, Florida. Although neither parent was
residing in Jupiter at the time, the wife testified during
the February 2016 hearing that she intended to move back
2016, the husband filed an amended motion to modify the
temporary relief order seeking to become the primary
residential parent. Among other things, the motion alleged
that the wife resided in Okeechobee County and was subjecting
the children to a one-and-a-half-hour drive to and from
school each day.
July 2016, as the start of the school year approached, the
court held an evidentiary hearing on the husband's
motion. At the outset, the court observed that the wife
testified during the hearing in February 2016 that she
intended on moving back to Jupiter but had not done so. The
husband's counsel explained that he was seeking to modify
the temporary relief order because the children needed to be
registered for the upcoming school year, and he was concerned
about subjecting the children to the long drive from
Okeechobee to Jupiter each school day.
husband testified that he has a close family network in Boca
Raton. He lives there with his mother and sister, with other
relatives living nearby. About a mile away from the
husband's home was an "A" rated elementary
court took judicial notice of the Palm Beach County School
Board policy that requires students to be assigned to schools
based on the primary residence of the child's parent or
legal guardian. This rule precluded the child's