5D04-3255 Morales v. MoralesA

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State: Florida

Court: Florida Southern District Court

Docket No: 5D04-3255.op

Case Date: 11/28/2005

Plaintiff: 5D04-3255 Morales

Defendant: Morales

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

JOHN D. MORALES, Appellant, v. Case No. 5D04-3255

JANICE L. MORALES, N/K/A JANICE L. MORALES-JACOBS, Appellee. ________________________________/ Opinion filed December 2, 2005 Appeal from the Circuit Court for Orange County, Robert M. Evans, Judge. Gus R. Benitez and Marilyn B. Lindsey, of Benitez & Butcher, P. A., Orlando, for Appellant. Neva M. Kelaher, Winter Park, for Appellee.

ORFINGER, J. John Morales, the former husband, timely appeals a post-dissolution order that changed primary residential custody of the parties' children from the former husband to rotating custody with the former wife, Janice L. Morales n/k/a Janice L. Morales-Jacobs. The former husband contends that the trial court erred (1) in modifying custody when there has been no substantial change of circumstances and (2) by ordering rotating custody without finding that such an arrangement would be in the best interests of the

children. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). For the reasons stated hereafter, we reverse. The 1997 final judgment dissolving the parties' marriage designated the former husband as the primary residential parent of the parties' minor children and granted the former wife liberal visitation. Several years later, the former husband filed a

supplemental petition to modify the former wife's summer visitation. The former wife counter-petitioned, arguing that she should be designated the primary residential parent due to a substantial change in circumstances. Following an evidentiary hearing, the trial court determined that the former husband had failed to facilitate shared parenting and had substantially interfered with the former wife's visitation rights. However, the court did not find a substantial change in circumstances. Nevertheless, the court ordered that the parties have rotating custody. On appeal, the former husband argues that the court's ruling was error because the former wife failed to establish a substantial and material change in circumstances relating to custody since entry of the final judgment of dissolution and because there was no evidence that a change in primary residence would be in the children's best interests. Section 61.13(4)(c)5., Florida Statutes (2004), provides in relevant part: (c) When a custodial parent refuses to honor a noncustodial parent's or grandparent's visitation rights without proper cause, the court shall, after calculating the amount of visitation improperly denied, award the noncustodial parent or grandparent a sufficient amount of extra visitation to compensate the noncustodial parent or grandparent, which visitation shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the person 2

deprived of visitation. In ordering any makeup visitation, the court shall schedule such visitation in a manner that is consistent with the best interests of the child or children and that is convenient for the noncustodial parent or grandparent. In addition, the court: .... 5. May award custody, rotating custody, or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award is in the best interests of the child. . . . This Court has consistently held that a noncustodial parent proceeding under this statute need not prove a substantial change in circumstances to obtain a modification of custody. Rather, the petitioning parent was required only to prove that a violation of visitation rights has occurred and that the best interests of the child support the change in custody. See, e.g., Compton v. Compton, 701 So. 2d 110, 112 (Fla. 5th DCA 1997); Steiner v. Romano-Steiner, 687 So. 2d 21 (Fla. 5th DCA 1996); Williams v. Williams, 676 So. 2d 493, 493-94 (Fla. 5th DCA 1996); see also

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