SARA A. BUSCHOR n/k/a SARA A. BARNES, Appellant,
JOSEPH BUSCHOR, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Lake County, Heidi Davis, Judge.
A. de Paula, of David A. Vukelja, P.A., Ormond Beach, for
P. Burnette, of Barry P. Burnette, P.A., Tavares, for
Buschor ("Former Wife") appeals a Final Judgment of
Modification entered in favor of Joseph Buschor ("Former
Husband"), which changed the primary residence of the
parties' minor child to that of Former Husband by
awarding Former Husband seventy percent timesharing and
denied Former Wife's petition for relocation. Former Wife
argues that the timesharing modification and change in the
child's primary residence violates her due process rights
because Former Husband did not seek that relief in his
pleadings below. Former Wife also contends that the trial
court abused its discretion in denying her petition for
relocation. We agree on both points and reverse.
record confirms that Former Wife did not have notice that the
trial court might change the child's primary residence or
award any more than equal timesharing to Former Husband,
which is the amount he requested in his petitions for
modification. This lack of notice and the trial court's
ruling constituted relief outside of that requested in Former
Husband's pleadings in violation of Former Wife's due
process rights. See, e.g., Maras v. Still,
927 So.2d 192 (Fla. 2d DCA 2006) (finding that former
wife's due process rights were violated when trial court
awarded relief not requested in former husband's pleading
and former wife was without notice of the possible outcome).
the trial court's denial of Former Wife's petition
for relocation, we find that the trial court did not properly
consider the best interest factors set forth in section
61.13, Florida Statutes (2015), or the factors regarding
relocation set forth in section 61.13001, Florida Statutes
(2015). With respect to the findings the trial court did
make, the record reveals those findings to be unsupported by
competent, substantial evidence. The undisputed evidence
presented should have resulted in the granting of Former
Wife's petition for relocation.
61.13001(7) expressly states that no "presumption in
favor of or against a request to relocate with the
child" arises simply because a "move will
materially affect the current schedule of contact, access,
and timesharing with the nonrelocating parent."
See § 61.13001(7), Fla. Stat. Instead, when
considering whether to allow a requested relocation, the
court must consider all of the following factors:
(a) The nature, quality, extent of involvement, and duration
of the child's relationship with the parent or other
person proposing to relocate with the child and with the
nonrelocating parent, other persons, siblings, half-siblings,
and other significant persons in the child's life.
(b)The age and developmental stage of the child, the needs of
the child, and the likely impact the relocation will have on
the child's physical, educational, and emotional
development, taking into consideration any special needs of
(c)The feasibility of preserving the relationship between the
nonrelocating parent or other person and the child through
substitute arrangements that take into consideration the
logistics of contact, access, and time-sharing, as well as
the financial circumstances of the parties; whether those
factors are sufficient to foster a continuing meaningful
relationship between the child and the nonrelocating parent
or other person; and the likelihood of compliance with the
substitute arrangements by the relocating parent or other
person once he or she is out of the jurisdiction of the
(d)The child's preference, taking into consideration the
age and maturity of the child.
(e)Whether the relocation will enhance the general quality of
life for both the parent or other person seeking the
relocation and the child, including, but not limited to,
financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or
opposing the relocation.
(g)The current employment and economic circumstances of each
parent or other person and whether the proposed relocation is
necessary to improve the economic circumstances of the parent
or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the
extent to which the objecting parent has fulfilled his or her
financial obligations to the parent or other person seeking
relocation, including child support, spousal support, and
marital property and marital debt obligations.
(i) The career and other opportunities available to the
objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as
defined in s. 741.28 or which meets the criteria of s.
39.806(1)(d) by either parent, including a consideration of
the severity of such conduct and the ...