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Riddle v. Riddle

Florida Court of Appeals, Fourth District

March 29, 2017

JENNY EVY RIDDLE, Appellant,
v.
ALAN RIDDLE and THE PLANK FACTORY, INC., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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.

          Chris Keith, Palm Beach Gardens, for appellant.

          Renier Ledezma, Palm Beach Gardens, for appellee Alan Riddle.

          ON MOTION FOR REHEARING

          PER CURIAM.

         We grant the husband's motion for rehearing, withdraw our previous opinion, and issue the following opinion in its place.

         The 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. 9.130(a)(3)(C)(iii)b.

         The 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.

         Background

          The 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.[1] 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 there.

         In June 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.

         In late 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.

         The 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 school.

         The 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 ...


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