June 8, 2017

Bresky Law Obtains Reversal of a Final Judgment of Dissolution of Marriage Denying a Former Wife’s Petition for Relocation

June 7, 2017*

Our firm, through attorney Dan Weinger, recently obtained a reversal of the portion of a final judgement of dissolution of marriage denying a Former Wife’s petition to relocate with her two young children to Virginia.

The appeal concerned a dissolution proceeding between a husband and wife who were married for twelve years and have two minor children.  One of the primary issues in the trial court was the Wife’s request for relocation back to Northern Virginia with the two minor children. The family lived in Virginia until 2012 and the Wife’s employment is in Washington D.C. Although the Wife was given permission to work remotely, her job requires extensive travel to the Virginia/D.C. area.

Following several days of testimony, the trial court found that the Wife met her burden of demonstrating that relocation to Virginia was in the best interests of the children, primarily as a result of the impact of the Husband’s self-destructive behavior on the family, manifested in large part by uncontrollable gambling.

With the burden shifting to Husband, the trial court found that given the negative impact the Husband’s compulsive behavior had on the marriage and the children, the only way the Husband could meet his burden of rebutting the finding that relocation was in the best interests of the children was if he complied with certain conditions, including taking his medication and completely removing gambling from his life. As a result of the Husband’s promise to comply with those conditions, the trial court found that the Husband met his burden to show that relocation was not in the best interests of the children and denied the petition for relocation.

The Husband appealed the trial court’s finding that the Wife met her initial burden of demonstrating that relocation was in the children’s’ best interests, as well as the imposition of the conditions. In a unanimous decision, the Fourth District Court of Appeal affirmed as to these issues without opinion.

We filed a cross-appeal on behalf of Wife, arguing that the trial court abused its discretion by permitting the Husband to rebut the trial court’s finding that relocation was in the best interests of the children through a mere promise to change his future behavior. More specifically, the trial court’s ruling was inconsistent with both the burden-shifting requirement of the relocation statute as well as with the Florida Supreme Court’s decision in Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). The appellate court was persuaded by both arguments.

First, quoting Florida Statutes section 61.13001(8), which concerns the burden of proof in a petition for relocation, the appellate court found that the Husband “could only satisfy his burden of proof by actually producing evidence sufficient to meet [the statutory standard] and not merely by a promise to do better. A court may not consider potential future, or even anticipated, events as a substitute for evidence.”

Additionally, the appellate court agreed that permitting the Husband to satisfy his burden through a promise to change his future behavior is in direct contravention of the holding in Arthur that best-interest determinations concerning petitions for relocation must be made at the time of the final hearing “and be supported by competent substantial evidence.”  As the Arthur Court explained:

Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

Arthur, 54 So. 3d at 459 (Fla. 2010).

Accordingly, the Fourth DCA reversed the final judgment, remanding the case for entry of an order authorizing the Wife’s relocation with the minor children to Virginia and for further proceedings to determine a new timesharing schedule based on the relocation.

* The decision is not final until disposition of any timely-filed post-decision motions.