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Solomon v. Solomon

Florida Court of Appeals, Fourth District

June 7, 2017

ROBERT SOLOMON, Appellant,
v.
MELANIE SOLOMON n/k/a MELANIE ANNE MEGREGIAN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Consolidated appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Martin H. Colin, Judge; L.T. Case No. 50-2014-DR-010829-XXXX-SB.

          Stephanie L. Serafin and Jane Kreusler-Walsh of Law Office of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Lewis R. Shafer and Stephanie R. Amkraut of Shafer Cohen, LLP, Boca Raton, for appellant.

          Daniel S. Weinger and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, and Martin B. Kofsky of Kofsky Law Office, P.A., Stuart, for appellee.

          Conner, J.

         In this dissolution of marriage case, the husband has appealed and the wife has cross-appealed the final judgment of dissolution of marriage and the rehearing order. We affirm, without discussion, the issues raised in the husband's appeal. As to the wife's cross appeal, we reverse the final judgment and remand for an order authorizing relocation and for proceedings to determine a new timesharing schedule based on the relocation.

         Factual Background

         The husband and wife were married for twelve years and have two minor children, who were ages eight and six at the time of the final judgment. One of the primary issues in the underlying dissolution of marriage proceeding was the wife's petition to relocate back to Virginia with the couple's two minor children, which the husband opposed. The record reflects that the couple had lived in Virginia for fifteen years prior to moving to Florida in 2012, for just two years before the wife filed for divorce in 2014. The wife alleged the relocation back to Virginia would be in the children's best interest and that it would eliminate her need to constantly travel for her job, which requires her to meet with key clients near her place of employment. It appears the parties moved to Florida in 2012 after the husband lost his job in Virginia. Meanwhile, the wife continued to travel to Virginia for work. Additionally, the wife alleged the husband suffers from mental health issues related to his compulsive gambling, which is what led to the wife's decision to file for the dissolution of marriage and to return home to Virginia.

         The matter proceeded to a six-day bench trial, in which a substantial portion of the testimony concerned the wife's request for relocation to Virginia, as well as the husband's gambling addiction. The wife testified that the marriage began to deteriorate in 2011 with the discovery that the husband had gambled away the family's ample savings. There was also substantial evidence of the husband's mental health issues. The wife testified that when the husband was unhappy, he would have periods of non-communication where he would stay in bed for multiple days and not function as part of the family unit. The husband acknowledged his mental health issues, expressing his understanding that he needed to get better so that he could be a part of the family and be able to do things with his children. Initially, the wife decided to give the husband another chance on the condition that he seek help and stop gambling. However, she testified that since 2011, the husband continued to have his ups and downs, and that she offered her support until 2014 when she caught the husband gambling on two occasions, prompting her to file for divorce. Notably, there was evidence that the husband's behavior and mental state got progressively worse between the time the wife announced her intention to end the marriage and the time of the trial, including continued compulsive gambling and an incident three days prior to trial in which the husband was pulled over by the police and called the wife in the early morning hours to pick him up, appearing to be drunk.

         Following trial, the trial court issued its final judgment. With respect to the wife's petition for relocation, the trial court evaluated the evidence based on the statutory factors provided in section 61.13001, Florida Statutes. Ultimately, the trial court found that the wife proved by a preponderance of the evidence that relocation was in the best interest of the children. However, the trial court noted that pursuant to the statute, after the burden is met by the wife, it then shifts to the husband to overcome the wife's proofs. The trial court noted that the husband's position was that he would give up his gambling behavior and work harder on his mental health issues. It stated that the question before it was "whether to give the husband, in essence another chance." In this regard, the trial court found that although the wife did meet her burden of proof, "the husband will be able to overcome the wife's burden of proof, provided the following takes place." The trial court then listed several conditions which required, in part, that the husband not gamble or enter any casinos, that he attend Gamblers Anonymous, disclose to the wife the identity of his therapist, maintain regular therapy, take any prescribed medication concerning his mental health, and to actually exercise his timesharing with the children. The trial court found that "if the husband does all of those things, " the best interests of the children will be enhanced. The trial court noted that the wife's burden of proof had been met "absent the husband meeting his conditions." Based on the above, the trial court denied the wife's petition for relocation.

         Analysis

         On cross appeal, the wife argues that the trial court abused its discretion by permitting the husband to rebut the trial court's finding that relocation was in the best interests of the children through nothing more than the promise of a change to his future behavior. We agree.

         The standard of review for a trial court's order on a petition to relocate is abuse of discretion. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003). In this regard, an appellate court reviews whether there is competent substantial evidence to support the trial court's findings of fact, but does not engage in reweighing the evidence. Id.

         Section 61.13001(8), Florida Statutes (2016), governs the burden of proof for rulings on ...


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