HEATH v. LEE (2023)

Father Joseph Lee Heath appeals the final judgment entered on his petition for modification of visitation, child support, and other relief. He challenges the trial court's grant of partial summary judgment for Mother Jessica Rose Lee, which precluded Father's attempt to modify the parties’ timesharing agreement to expand his time with the parties’ minor child. Father argues on appeal that he presented sufficient allegations and evidence of a substantial change in circumstances to survive summary judgment. We agree. Accordingly, we reverse the final judgment and remand for further proceedings.

In 2015, the trial court ratified a mediation settlement agreement between the parties. The agreement's timesharing plan gave Mother physical custody during the school year and Father physical custody during academic breaks. At the time, Father lived in Tennessee and Mother resided in Pensacola, Florida. Under the agreement, both parents had the right to contact the child by telephone or otherwise. Each parent's communication right was “[w]ithout limitation.” The agreement specified that such contact “shall not be monitored by or interrupted by the other parent unless agreed to in writing or it is ordered by the Court.” The agreement also mandated that the parents maintain collegiality when handling matters involving the child.

Five years later, Father petitioned to modify the agreement. He alleged that substantial changes in circumstance had occurred that warranted a modification. These included his recent geographic relocation to Florida, Mother's increased acrimony toward Father, her interference with and restriction of Father's communications with the child (a violation of their settlement agreement), and the mental and physical toll these actions took on the child. Mother moved for partial summary judgment on the modification claim. She did not submit any evidence in support of her motion.

In opposition to the motion, Father filed a sworn affidavit containing several allegations. Besides detailing his relocation from Tennessee to Pensacola (where he had started a new business) and the resulting increase of time available for Father to spend with the child, the allegations described an escalation in the Mother's acrimony toward Father. The affidavit also delved into Mother's alleged interference with Father's contact with the child. Father alleged Mother had degraded and minimized Father's contact time by failing to allow Father to have private conversations with the child and limiting the time of conversations by removing the child's phone. These restrictions on communication resulted in a substantial difference in the child's behavior, with the child exhibiting anxiety, dysfunction, and emotional withdrawal.

The trial court granted Mother's motion for partial summary judgment on the modification claim. In explaining its decision, the court said that the only factor Father asserted that could be sufficient for modification would be Father's relocation. Yet precedent from this Court precluded any consideration of the relocation as an adequate justification. As for the other grounds asserted in Father's petition, the trial court considered them “not legally sufficient for modification.” The trial court did not address Father's affidavit. Following the entry of final judgment, Father brought this timely appeal.

Our standard of review is de novo. See, e.g., Bradner v. Bradner, 286 So. 3d 947, 950 (Fla. 1st DCA 2019) (“An order granting summary judgment is reviewed de novo” (citing Hawthorne v. Lyons, 192 So. 3d 1279, 1280 (Fla. 1st DCA 2016))). When considering a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Collias ex rel. Collias v. Gateway Acad. of Walton Cnty., Inc., 313 So. 3d 163, 165 (Fla. 1st DCA 2021) (quoting Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129, 1131 (Fla. 1st DCA 2017)).

Modification of timesharing is governed by section 61.13, Florida Statutes. In modifying a timesharing plan, “the best interest of the child shall be the primary consideration.” § 61.13(3), Fla. Stat. (2020). A timesharing plan thus cannot be modified “without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” Id. The statute lists twenty potential factors for determining the best interest of the child. Those factors include each parent having the ability for a close parent-child relationship, the geographic viability of the parenting plan, communication between the parents, and so forth. § 61.13(3)(a)-(t), Fla. Stat. (2020).

This Court has set out a three-prong test for modification of a custody agreement. Lyles v. Guffey, 305 So. 3d 839, 840 (Fla. 1st DCA 2020) (citing Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018)). The party seeking modification must show “(1) circumstances have substantially and materially changed since the original time-sharing determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing the time-sharing plan.” Id.

Here, the trial court explained that the Father's Petition contained only one sufficient justification for modification: the recent geographic relocation to Florida. But this Court's precedent prohibited it from considering that factor.

Earlier cases have addressed a parent's relocation. Under the statutory language in effect ^* when Father filed (and the trial court considered) the modification request, this Court had concluded that, by itself, a parent's mere relocation was not enough to constitute a “substantial and material change.” See, e.g., Bryan v. Wheels, 295 So. 3d 889, 891 (Fla. 1st DCA 2020) (“Florida law doesn't consider such a move—by itself and without any showing of how that move impedes the present timesharing plan—to necessarily constitute a substantial and material change in circumstances.”) (citations omitted); see also Shafer v. Shafer, 898 So. 2d 1053, 1055–56 (Fla. 4th DCA 2005) (“[C]ourts have routinely held that relocation alone is not a substantial change in circumstances to support a modification of custody.”) (citations omitted) (emphasis in original). Something more than the singular fact of relocation had to be shown.

Likewise, this Court has held that parental acrimony alone does not constitute a “substantial and material change” in circumstances. Korkmaz v. Korkmaz, 200 So. 3d 263, 266 (Fla. 1st DCA 2016) (“[T]he 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.” (first quoting Sanchez v. Hernandez, 45 So. 3d 57, 62 (Fla. 4th DCA 2010); then citing Ogilvie v. Ogilvie, 954 So. 2d 698 (Fla. 1st DCA 2007); then citing McKinnon v. Staats, 899 So. 2d 357, 360 (Fla. 1st DCA 2005); and then citing Ring v. Ring, 834 So. 2d 216 (Fla. 2d DCA 2002))).

That said, Father's claim of a substantial change in circumstances did not rest solely on his relocation or mere parental acrimony. Rather, in detail, he alleged multiple factors, some specifically named in the statute as legitimate considerations. Father's petition and affidavit detailed his change in employment, which resulted in his relocation to Florida and a new work schedule that allowed more time for parenting the child. Also alleged were escalating levels of acrimony on the part of the Mother and her interference with the communication and contact time between Father and the child (a violation of the settlement agreement). All of this reportedly had a mental and physical effect on the child in the form of anxiety, dysfunction, and emotional withdrawal.

Contrary to the trial court's conclusion, these alleged factors, in totality, could constitute legally sufficient grounds to modify the timesharing agreement. § 61.13(3), Fla. Stat. (2020); see Wade v. Hirschman, 903 So. 2d 928, 935 (Fla. 2005) (affirming the trial court's order modifying custody based on parental alienation, non-compliance with the parenting agreement, violation of shared parental responsibility, and a finding that the mother was in contempt of court); C.N. v. I.G.C., 291 So. 3d 204, 206–07 (Fla. 5th DCA 2020), approved, 316 So. 3d 287 (Fla. 2021) (affirming the trial court's decision to modify custody because of the mother's detrimental behavior).

Viewing the evidence in a light most favorable to Father (as the nonmoving party), these allegations may constitute a substantial and material change warranting a modification of timesharing that would be “in the best interests of the child.” § 61.13(3), Fla. Stat. (2020). But, as Mother's answer brief acknowledges, “not once in the trial court's oral pronouncement or written order [did] the court give the Father's Affidavit any consideration.” By failing to consider the evidence in a light most favorable to Father—or even to consider the evidence at all—the trial court erred.

Reversed and Remanded for further proceedings.

FOOTNOTES

FOOTNOTE.   Effective July 1, 2023, section 61.13(3), Florida Statutes, now includes the following language: “If the parents of a child are residing greater than 50 miles apart at the time of the entry of the last order establishing time-sharing and a parent moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of a modification to the time-sharing schedule, so long as there is a determination that the modification is in the best interests of the child.” § 61.12(3), Fla. Stat. (2023); see also Ch. 2023-315, § 2, Laws of Fla.

Per Curiam.

Kelsey, Nordby, and Long, JJ., concur.