BUSCHOR

v.

BUSCHOR

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

SARA A. BUSCHOR n/k/a SARA A. BARNES,

Appellant,

v. Case No. 5D17-155

CORRECTED

JOSEPH BUSCHOR,

Appellee.

________________________________/

Opinion filed August 1, 2018

Appeal from the Circuit Court for Lake County, Michael G. Takac, Judge.

Jarett A. de Paula and David A. Vukelja, of David A. Vukelja, P.A., Ormond Beach, for Appellant.

Barry P. Burnette, of Barry P. Burnette, P.A., Tavares, for Appellee.

COHEN, C.J.

Sara Buschor (“Former Wife”) appeals a Final Judgment of Modification entered in favor of Joseph Buschor (“Former Husband”), which changed the primary residence of the parties’ minor child to that of Former Husband by awarding Former Husband seventy percent timesharing and denied Former Wife’s petition for relocation. Former Wife argues that the timesharing modification and change in the child’s primary residence violates her

2 due process rights because Former Husband did not seek that relief in his pleadings below. Former Wife also contends that the trial court abused its discretion in denying her petition for relocation. We agree on both points and reverse. The record confirms that Former Wife did not have notice that the trial court might change the child’s primary residence or award any more than equal timesharing to Former Husband, which is the amount he requested in his petitions for modification. This lack of notice and the trial court’s ruling constituted relief outside of that requested in Former Husband’s pleadings in violation of Former Wife’s due process rights. See, e.g., Maras v. Still, 927 So. 2d 192 (Fla. 2d DCA 2006) (finding that former wife’s due process rights were violated when trial court awarded relief not requested in former husband’s pleading and former wife was without notice of the possible outcome). As to the trial court’s denial of Former Wife’s petition for relocation, we find that the trial court did not properly consider the best interest factors set forth in section 61.13, Florida Statutes (2015), or the factors regarding relocation set forth in section 61.13001, Florida Statutes (2015). With respect to the findings the trial court did make, the record reveals those findings to be unsupported by competent, substantial evidence. The undisputed evidence presented should have resulted in the granting of Former Wife’s petition for relocation. Section 61.13001(7) expressly states that no “presumption in favor of or against a request to relocate with the child” arises simply because a “move will materially affect the current schedule of contact, access, and timesharing with the nonrelocating parent.” See § 61.13001(7), Fla. Stat. Instead, when considering whether to allow a requested relocation, the court must consider all of the following factors:

3 (a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d) The child’s preference, taking into consideration the age and maturity of the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f) The reasons each parent or other person is seeking or opposing the relocation.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Id. § 61.13001(7)(a)‒(k). Section 61.13 provides twenty factors regarding the best interest of the child for the court to consider when modifying a timesharing agreement. Id. § 61.13(3)(a)‒(t). As the parent seeking relocation, Former Wife has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. Id. § 61.13001(8). If this initial burden is met, the burden then shifts to the nonrelocating parent, Former Husband here, to show by a preponderance of the evidence that relocation is not in the best interest of the child. Id. Granting or denying relocation based on findings that are not supported by competent, substantial evidence constitutes reversible error. E.g., Berrebbi v. Clarke, 870 So. 2d 172, 173 (Fla. 2d DCA 2004). The parties divorced prior to the birth of their child, and the parties’ marital settlement agreement provided that the unborn child “shall reside primarily with the Mother.” The agreement further provided that “the Father shall have liberal and frequent contact and access with the child as agreed upon by the parties, and each of the parties shall exercise the utmost of good faith and consent to all reasonable requests of the other party in connection therewith.” The agreement outlined specific graduated timesharing based on the child’s age.

The mediated settlement agreement also provided that the parties “shall be entitled to agree on additional timesharing so long as they mutually agree.”1 One year after the modification order was entered, Former Husband filed a second supplemental petition for modification, requesting that the trial court modify his visitation “to provide [him] with 50% of the contact, visitation and parenting of the minor child. . . .” In the petition, Former Husband alleged that Former Wife had engaged in alienation of affection, had him falsely arrested shortly after the modification, filed a frivolous injunction solely for the purpose of keeping Former Husband away from the child, caused Former

1 Shortly after that modification order was entered, Former Wife married her current husband. Former Husband also married his current wife.

2 Notably, all of the allegations made in Former Husband’s petition were baseless. For example, there is no evidence in the record that Former Wife had alienated the child’s affections for Former Husband. Likewise, while Former Husband blames his departure from the Mount Dora Police Department on Former Wife, he produced no evidence or documentation to support that claim. Of further interest is Former Husband’s acknowledgment that his current wife “possibly” had bitten the child. Also, there was no evidence presented that Former Wife took any action to prevent Former Husband from accessing the daycare’s online system or that he had been prevented from visiting the child at the daycare. As for the circumstances of his “false arrest,” the same will be addressed later herein.

3 Significantly, the parties’ child is covered under the current husband’s health insurance even though the final judgment required Former Husband to maintain health insurance for the child. Former Husband failed to do so, instead enrolling the child in what he characterized as Medicaid. As a result, the current husband covered the child through his insurance plan. The current husband also provides the insurance for his two older

4 Former Wife testified that the daily hostility Former Husband subjected her to decreased since her relocation. Former Wife also found employment as a teaching

REVERSED and REMANDED.

MUNYON, L., Associate Judge, concurs. EISNAUGLE, J., concurs in part and dissents in part, with opinion.

14

CASE NO. 5D17-155

EISNAUGLE, J., concurring in part and dissenting in part.

I agree with the majority that the modification of timesharing and change in the child’s primary residence should be reversed on due process grounds. Therefore, a new trial on this issue is in order. However, I disagree with the majority’s conclusion that the trial court’s denial of the relocation petition is not supported by competent, substantial evidence.⁵ Although I might well have weighed the factors differently were I the trial judge, it is not for this court to reweigh the evidence on appeal. Wraight v. Wraight, 71 So. 3d 139, 142 (Fla. 5th DCA 2011) (recognizing in a relocation case that “this Court cannot reweigh the evidence considered by the trial court. We can only decide whether substantial competent evidence exists to support the trial court’s decision.” (citations omitted)). In my view, the majority has reviewed the final judgment for the greater weight of the evidence rather than for competent, substantial evidence. Without belaboring the point, the evidence at trial included, but was not limited to, testimony and evidence from which the finder of fact could conclude that: (1) Former Wife improperly relocated with the child without authorization from the trial court;

(2) Former Wife unreasonably refused to allow Former Husband to communicate with their three-year-old child via Skype, instead of by phone, so that he could see his father and siblings;

5 To the extent that the majority’s opinion can be interpreted as reversing the denial of the petition for relocation based on a lack of findings by the trial court, I note that this issue was not argued in the initial brief, other than a fleeting reference buried in a heading, and is therefore waived. Cf. State v. Dougan, 202 So. 3d 363, 378 (Fla. 2016) (“The State raises this argument for the first time in its Reply Brief in this Court, so it is waived.”).

15 (3) Former Wife at times would refuse to facilitate even simple phone calls between the child and Former Husband;

(4) Former Wife unreasonably limited her own communications with Former Husband, if she responded at all, demanding that he exclusively communicate with her via e-mail and refusing to communicate in person, by phone, or even text message;

(5) Former Wife sometimes failed to consult with Former Husband when choosing the child’s healthcare providers; and (6) Former Wife unreasonably declined Former Husband’s requests for additional time with the child in violation of the parties’ settlement agreement. For instance, Former Wife admitted at trial that she would take the child to daycare when she worked instead of permitting Former Husband to care for the child. On one such occasion, when Former Husband asked if he could care for the child during the day while Former Wife worked, Former Wife responded only by saying that she believed it was in the child’s “best interest” to “fully participate full-time at the [daycare].”

This and other evidence below supported the trial court’s ruling. While I readily concede that there was a host of evidence which would have permitted the trial court to grant the petition for relocation, the point here is that it is not our role to determine credibility, resolve conflicts, or weigh the evidence presented at trial. Therefore, I believe we are constrained to affirm the trial court’s denial as to relocation. Finally, as the majority notes, Former Wife argues that the most recent settlement agreement does not require her to reasonably accommodate Former Husband’s requests for additional timesharing. Specifically, she argues that the parties’ original agreement to exercise the “utmost good faith” in consenting to reasonable requests of the other party was modified by the Mediated Settlement Agreement. Even if this argument were preserved, it is without merit. The original settlement agreement remained in full force and effect unless modified by the Mediated Settlement Agreement. The provision in the Mediated Settlement Agreement relied upon by Former