Opinion
No. 94-1298.
July 28, 1995. Rehearing Denied August 31, 1995.
Appeal from the District Court, Brevard County, Frank R. Pound, Jr., J.
Cris Bates Foster and Joan Berry Nasser of Foster Ridley, Melbourne, for appellant/cross-appellee.
John C. Hubbard of William R. Northcutt, P.A., Indian Harbour Beach, for appellee/cross-appellant.
This appeal and subsequent cross-appeal arose as a result of a dissolution action and deals primarily with the custody, visitation, and support of the three minor children of the marriage.
We find only the visitation and relocation issues require discussion. The court's final judgment of dissolution found that both parents were fit but that the best interests of the children required that the wife have primary residential responsibility. The court held that the wife could return to Connecticut at the end of the school year with the children provided she paid the costs of "transportation" for visitation. The court later stated that the wife was to pay "all costs" associated with the husband's exercise of visitation. Visitation was actually a split-custody arrangement with each party having the children for one week. This arrangement was to continue even if the wife moved with the children to Connecticut. When the children were in school, visitation by the husband was to take place in Connecticut.
The husband argues that there is no competent evidence to support the judgment which allows the wife to take the children to Connecticut. In Mize v. Mize, 621 So.2d 417 (Fla. 1993), the Florida Supreme Court held that as long as relocation by the primary custodian was well-intentioned, the change should ordinarily be approved. Mize set out a laundry list of factors for the court to consider and weigh in making its ultimate decision.
The court must consider: (1) whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children, (2) whether the motive for seeking the move is for the express purpose of defeating visitation, (3) whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements, (4) whether the substitute visitation will be adequate to foster a continuing meaningful relationship between a child or children and the noncustodial parent, (5) whether the cost of transportation is financially affordable by one or both of the parents, and (6) whether the move is in the best interest of the child.
While we do not attempt to reweigh the factors here, we do question the reasonableness of the decision, given the visitation schedule and distances involved. As pointed out by the wife, neither party has the financial resources or time to carry out the visitation schedule as it exists and the visitation schedule is overly burdensome on both parties. Additionally, the visitation schedule adopted by the court essentially renders the relocation a nullity or, at the very least, greatly burdens the wife if she decides to move back to Connecticut.
Because the visitation schedule is unworkable or unreasonable as it currently exists and it is impossible to determine what costs of visitation were intended by the court (transportation costs or all costs), we reverse the visitation portion of the final judgment and remand for reconsideration. In order to maintain cohesiveness within the court's deliberations on remand, we also reverse that portion of the final judgment dealing with relocation so that this can be reconsidered side-by-side with the visitation issues.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HARRIS, J., concurs.
GRIFFIN, J., concurs in part, dissents in part, with opinion.
I dissent only from the portion of the opinion that permits reconsideration on remand of the relocation decision. Relocation is supported by the record and compelled by Mize. The only thing wrong here is the visitation schedule, which is manifestly unreasonable and unworkable, given the circumstances and economic resources of the parties. Its apparent purpose is to subvert Mize by making relocation a financial impossibility for the custodial parent. If we allow it in this case, such orders will simply continue in cases where the lower court prefers, Mize notwithstanding, to require the custodial parent and the child to remain in Florida. Where such orders are entered, the custodial parent may just give up and stay here, knowing he or she cannot meet the court's conditions. Under the majority opinion, even if the custodial parent has the knowledge and resources to appeal, however, success on appeal will mean only the substantial risk of the same result, i.e. the compulsion to remain in Florida — and more appeals. To allow reconsideration of relocation because the court made an improper ruling on visitation is unwarranted. Relocation is what dictates the schedule of visitation, not the other way around.