final until disposition of timely filed motion for rehearing.
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.
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.
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
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.
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.
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.
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.
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.
61.13001(8), Florida Statutes (2016), governs the burden of
proof for rulings on ...