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Hollis v. Hollis

Florida Court of Appeals, Second District

June 19, 2019

ANNA HOLLIS, Appellant,
v.
DAVID HOLLIS, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal 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, for Appellant.

          Joryn Jenkins and Cara L. Powell of Open Palm Law, Tampa, for Appellee.

          LaROSE, Chief Judge.

         Anna 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)[1] (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 reverse.

         Background

         The 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.

         Within 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.

         In 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.

         Analysis

         Former 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.

         "[A]n 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").

         A trial 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 be ...


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