FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Pasco County; Alicia Polk, Judge.
Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs,
Jenkins and Cara L. Powell of Open Palm Law, Tampa, for
LaROSE, Chief Judge.
Hollis (Former Wife) appeals the trial court's order
modifying child custody and awarding David Hollis (Former
Husband) majority time-sharing. We have jurisdiction.
See Fla. R. App. P. 9.030(b)(1)(A) (providing that
district courts shall review "final orders of trial
courts"). The record does not support the trial
court's finding that a material and substantial change in
circumstances justified modification. Consequently, we
trial court entered a final judgment of dissolution of
marriage in August 2013. The final judgment awarded the
parents shared parental responsibility of their three minor
children, with Former Wife enjoying majority time-sharing.
about six months, the parties filed competing petitions to
modify the final judgment, particularly, the time-sharing
arrangement. Each alleged that a substantial change in
circumstances warranted a modification.
early 2018, the trial court conducted a three-day evidentiary
hearing. Subsequently, the trial court modified the final
judgment and awarded majority timesharing to Former Husband.
Wife argues that no evidence before the trial court
established a material and substantial change in
circumstances. She contends that the trial court relied
solely on Former Husband's relocation some forty-seven
miles away. In her view, this move, alone, does not
constitute a substantial change. She further maintains that
although the trial court's order uses the "magic
words" that a substantial change occurred, the order
fails to identify those changes. Former Husband counters that
the trial court is not required to specify what substantial
changes have occurred; rather, the order must only indicate
that it found they exist. He alleges that his relocation was
just one factor the trial court considered.
order changing custody has a presumption of correctness and
will not be disturbed absent a showing of abuse of
discretion." Wade v. Hirschman, 903 So.2d 928,
935 (Fla. 2005) (citing In re Gregory, 313 So.2d
735, 738 (Fla. 1975)). Thus, we should affirm the trial
court's decision when "there is competent,
substantial evidence supporting the trial judge's
conclusion." McKinnon v. Staats, 899 So.2d 357,
359 (Fla. 1st DCA 2005) (citing Zediker v. Zediker,
444 So.2d 1034, 1038 (Fla. 1st DCA 1984)); compare,
e.g., Wade, 903 So.2d at 935 ("The trial
court . . . concluded that there were substantial and
material changes in circumstances, and its findings are
supported by competent, substantial evidence, including:
evidence of parental alienation of the Father by the Mother;
failure of the Mother to cooperate with the parenting
coordinator and comply with the parenting agreement;
violation of shared parental responsibility as evidenced by
the Mother's unilateral change of the child's
elementary school and her unilateral change of the
child's therapist; and the finding that the Mother was in
contempt of court for her actions relative to
visitation."), with Griffith v. Griffith, 133
So.3d 1184, 1186 (Fla. 2d DCA 2014) (reversing the trial
court's modification order where "the trial court
did make a specific finding that there was a substantial
change in circumstances; however, neither the final order of
modification nor the court's oral pronouncement specifies
what that substantial change is").
court should not modify a time-sharing schedule "without
a showing of a substantial, material, and unanticipated
change in circumstances and a determination that the
modification is in the best interests of the child."
Griffith, 133 So.3d at 1186 (quoting §
61.13(3), Fla. Stat. (2012)). The burden on the moving party
is nothing less than "extraordinary."
Wade, 903 So.2d at 933 (citing Voorhies v.
Voorhies, 705 So.2d 1064, 1065 (Fla. 1st DCA 1998));
see also George v. Lull, 181 So.3d 538, 540 (Fla.
4th DCA 2015) (characterizing the required showing as a
"stringent test"). The "substantial
change" must not have been "reasonably contemplated
at the time of the original judgment." Cooper v.
Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003) (citing
Pimm v. Pimm, 601 So.2d 534, 536 (Fla. 1992));
see George, 181 So.3d at 540 ("The substantial
change must be one that was not contemplated at the time of
the original timesharing plan." (citing Wade,
903 So.2d at 935 n.2)). And, the best interests of the
children are determined by considering the factors listed in
section 61.13(3), Florida Statutes (2017). Of course, absent
a substantial change in circumstances, the trial court need
not consider the section 61.13(3) factors. See Wade,
903 So.2d at 934 ("Res judicata attached to [the
original custody] determination and that determination cannot