Michelle P. Hutchinson, Former Wife, Appellant,
Mark H. Hutchinson, Former Husband, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Okaloosa County. John Jay
Puro of Ashley Puro, P.A., Destin, for Appellant.
H. Henderson of Oberliesen & Henderson, Shalimar, for
P. Hutchinson appeals an order modifying a final judgment of
dissolution of marriage. She argues that the court erred in
modifying the parties' timesharing for their son and in
changing the child support obligation. We agree and reverse
because Mark H. Hutchinson did not show a substantial change
in circumstances, a necessary condition for modification of
parties' marriage was dissolved in 2011. They had one
minor child, who was 7 years old when the final judgment was
entered. The timesharing plan called for their son to reside
with the mother during the school week and have alternating
timesharing with the father on weekends. The child was to
spend half of the summer vacation with each parent. However,
from 2011 to 2017, Mr. Hutchinson informally exercised more
timesharing than provided for in the final judgment.
2017, the parties' informal cooperation ended, and they
began to more closely follow the timesharing arrangement from
the final judgment. Ms. Hutchinson also moved to another home
within the county and registered her son at another more
convenient district school. She tried to speak with her
ex-husband about the school change, but apparently their
communications broke down and he wasn't told.
Hutchinson subsequently filed a petition to modify the final
judgment in the trial court. After taking evidence, the trial
court ruled that Mr. Hutchinson had proven a substantial
change in circumstances and that the child's best
interest favored a new 50/50 timesharing arrangement. The
court also modified the parties' respective child support
obligations in line with the new timesharing plan.
entitled to modification of timesharing, the moving party
"must show that (1) circumstances have substantially and
materially changed since the original custody determination,
(2) the change was not reasonably contemplated by the
parties, and (3) the child's best interests justify
changing custody." Korkmaz v. Korkmaz, 200
So.3d 263, 265 (Fla. 1st DCA 2016) (quoting Reed v.
Reed, 182 So.3d 837, 840 (Fla. 4th DCA 2016)). This
required proof imposes an "extraordinary burden" on
the party seeking modification. Ragle v. Ragle, 82
So.3d 109, 111 (Fla. 1st DCA 2011) (quoting Boykin v.
Boykin, 843 So.2d 317, 320 (Fla. 1st DCA 2003)).
"Practically speaking, this means that the parent
requesting the modification must establish more than 'an
acrimonious relationship and a lack of effective
communication in order to show a substantial change' of
circumstances.'" Korkmaz, 200 So.3d at 266
(quoting Sanchez v. Hernandez, 45 So.3d 57, 62 (Fla.
4th DCA 2010)). Nor will relocation of one parent, by itself,
always constitute a change in circumstances. See Ogilvie
v. Ogilvie, 954 So.2d 698, 701 (Fla. 1st DCA 2007);
Ragle, 82 So.3d at 112.
Mr. Hutchinson alleged that his ex-wife had limited the time
he spent with his son, changed the child's school without
notifying him, and had moved several times. But these
circumstances don't prove a substantial change in
circumstances. There was no evidence, for instance, that Ms.
Hutchinson denied Mr. Hutchinson the timesharing ordered by
the final judgment. Rather, the parties adopted an informal
timesharing arrangement for a while after the final judgment
that gave Mr. Hutchinson more time with his son. In 2017,
contrary to Mr. Hutchinson's wishes, the timesharing
reverted back to more closely resemble the original
court-ordered plan. But this change in the parties'
dealings is not a basis for finding a substantial change in
circumstances. See, e.g., Brown v. Brown,
124 So.3d 424, 425 (Fla. 1st DCA 2013) ("[A]
parent's consent to extra visitation is not a basis for a
modification."); see also Sidman v. Marino, 46
So.3d 1136, 1137 (Fla. 1st DCA 2010) ("As we have said
regarding modification of custody arrangements, allowing an
agreement between the parents to provide a basis for
modification would discourage parents from making informal,
joint decisions for the benefit of their children.").
addition, the fact that Ms. Hutchinson has made a few local
moves since entry of the final judgment also does not
establish a substantial change in circumstances. In fact, the
final judgment originally recognized that she would be moving
out of the marital home, and that her future residence was
"not known." The final judgment further provided
that "for purposes of school boundary determination,
registration and enrollment, the Mother's address shall
control." As anticipated in the final judgment, Ms.
Hutchinson moved away from the marital home. And she
eventually landed at an address in the same school district
that was closer to the child's present middle school.