KIMBERLY D. BARRETT, APPELLANT,
v.
LOWELL SCOTT BARRETT, APPELLEE
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The court held that competent, substantial evidence supported the modification of visitation provisions due to a substantial change in circumstances, except for the Christmas holiday schedule.
[1] A trial court may modify visitation provisions of a final judgment of dissolution of marriage upon a showing of a substantial change of circumstances and that the modific…
[2] A trial court's decision to modify visitation provisions is supported by competent, substantial evidence if the record contains evidence supporting the conclusion of a su…
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution of marriage, the mother appealed the modification of visitation provisions, arguing the trial court abused its discretion. The…
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CASANUEVA, Judge.
In this postdissolution action, Kimberly D. Barrett asserts that the trial court abused its discretion in modifying the visitation provisions of the final judgment of dissolution of marriage. With the exception of the Christmas holiday visitation terms, we disagree and affirm. Competent, substantial evidence supports the trial court’s conclusion that a substantial change of circumstances has occurred and that it is in the child’s best interest to have increased visitation with his father. To assure that Mr. Barrett and his son would have more time together, the trial court fashioned a new visitation schedule based upon exhibit 16, submitted by Mr. Barrett. That schedule provides for the parties to alternate visitation with their son on specific holidays and occasions, such as the child’s birthday, Easter Sunday, Thanksgiving Day, Halloween, and the Fourth of July, depending on whether the year ends in an even or odd number. For Christmas, however, Mr. Barrett is scheduled to have the child on Christmas Day and Ms. Barrett to have him on Christmas Eve — -every year. We are unable to find any record evidence to support the trial court’s decision to deviate from the alternating holiday plan for Christmas. Therefore, we reverse this determination and remand with instructions for the trial court to modify the schedule so that the parties will alternate visitation with their son on Christmas Eve and Christmas Day in a manner similar to the schedule of other holidays.
Finally, Ms. Barrett argues that the detriment factor as set out and discussed in Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996), applies to proceedings seeking to modify visitation as well as custody. We disagree. Gibbs concerns custody modification and requires the court to find that detriment would occur to the child if custody were not changed. Id. at 642. We do not interpret Gibbs as requiring a similar standard for visitation modification.
Affirmed in part, reversed in part, and remanded with instructions.
FULMER and CANADY, JJ., Concur.
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Citator
Cited By
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Hastings v. Rigsbee, 875 So. 2d 772 (Fla. 2d DCA 2004)…tings’ “parenting schedule.” The trial court’s order referred to this change as a “temporary suspension” of Mrs. Hastings’ “parenting time.” A modification of visitation rights is not subject to the extraordinary burden test. See Barrett v. Barrett, 862 So. 2d 100, 101 (Fla. 2d DCA 2003). We conclude that this order, however, effected not a modification of visitation but a change in custody because it only permitted Mrs. Hastings, who previously had primary custody of the child, to have visitation with her ch…
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Ross v. Phillips, 913 So. 2d 771 (Fla. 2d DCA 2005)…there has been a substantial and [*774] material change in circumstances and that the proposed change would be in the best interests of the minor child.” Id. (citing Perkins v. McKay, 460 So. 2d 531 (Fla. 2d DCA 1984)); see also Barrett v. Barrett, 862 So. 2d 100, 101 (Fla. 2d DCA 2003) (“Competent, substantial evidence supports the trial court’s conclusion that a substantial change of circumstances has occurred and that it is in the child’s best interest to have increased visitation with his father.”), revi…
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Loriana M. Novoa v. Mariano de Socarraz, 935 So. 2d 40 (Fla. 3d DCA 2006)…has not shown by competent substantial evidence, nor did the court’s order reflect a finding of, a substantial change in circumstances warranting the last-minute modification of the children’s 2006 summer visitation schedule. See Barrett v. Barrett, 862 So. 2d 100 (Fla. 2d DCA 2003)(holding that competent, substantial evidence was necessary to support the trial court’s conclusion that a substantial change in circumstances occurred and that it was in the child’s best interest to have increased visitation with…
Authorities Cited
- Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)