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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
CHARLES ALAN COOPER,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CASE NO. 1D02-4376
ROBIN L. GRESS, f/k/a ROBIN L.
Opinion filed September 12, 2003.
An appeal from the Circuit Court for Duval County.
A. C. Soud, Jr., Judge.
William D. Cochran, IV; and Michael J. Korn, of Korn & Zehmer, P.A.,
Jacksonville, for Appellant.
James T. Miller, Jacksonville, for Appellee.
Charles Alan Cooper, the former husband, appeals an order granting the
supplemental petition filed by the former wife, Robin L. Gress (formerly known as
Robin L. Cooper), seeking to modify the rotating-custody arrangement approved in
the final judgment of dissolution of marriage. Concluding that the trial court applied
the wrong legal standard to the modification question, and that the former wife failed
to satisfy the extraordinary burden to warrant modifying custody, we reverse the
order and remand with instructions to reinstate the original rotating custody plan and
child-support obligation. See Ring v. Ring, 834 So. 2d 216 (Fla. 2d DCA 2002)
(holding that party seeking post-dissolution modification of custody has extraordinary
burden to prove occurrence of substantial, material change in circumstances since
final judgment that is detrimental to children's best interests; and that parties'
continuing hostility and mutual failure to communicate did not constitute material
change in circumstances justifying custody modification for three of parties' four
The parties were married in February 1992 and have a daughter (born in March
1994) and a son (born in July 1996). In December 1998, the former husband
petitioned to dissolve the marriage. At about the same time, the parties signed a
stipulation and agreement asking the trial court to incorporate the whole agreement
into its final judgment. In pertinent part, the parties agreed to rotate custody of the
children to allow each parent an equal amount of custodial time. Each of the parties
recognized that the other is a fit parent who has a unique contribution to offer the
children. The parties agreed to share all decisions regarding the children's health and
medical and dental care, religious and secular education, vacations and travel,
extracurricular activities, and general welfare and upbringing. While the parties
expressly agreed to work together cooperatively to realize the goals set forth in the
stipulation and agreement, they acknowledged the possibility that the children's
custodial needs might change or that the parties might not be able to resolve "future
controversy" in a mutually acceptable way. Accordingly, the "Split Custody" section
of the stipulation and agreement includes the following language:
The parents are aware of the changing needs of their children, as well as
their own changing lifestyles. Therefore, the parties shall renegotiate
their timesharing plans as needed to accommodate these changing needs.
The parents shall, if they cannot mutually resolve future controversy
between them regarding their children and their relationship as parents,
mutually seek an appointment with the Family Mediation Unit, or with
any mediator of their choice, for assistance in resolving this controversy
on a mutually acceptable basis.
The parties agreed on a plan under which the children would spend one week with
one parent and then move to the other parent's residence every Friday. Certain
exceptions were contemplated for significant holidays and for school vacation
The trial court issued a January 1999 final judgment dissolving the marriage and
incorporating the specific terms of the parties' stipulation and agreement in all material
respects. Each party was made solely responsible for the payment of his or her own
attorney's fees and costs. The trial court retained jurisdiction to enforce or modify
the judgment provisions as may be legally permissible and warranted.
In June 2000, the former husband filed an emergency petition to enforce his
visitation rights while the children were residing with their mother. He alleged that she
was restricting and trying to control his visitation and was speaking disparagingly to
the children about him and his new wife. The former wife (who also had remarried)
responded by filing a supplemental petition to modify the final judgment by
designating herself as the primary residential parent, by allowing the former husband
frequent and liberal visitation, and by ordering him to pay her for child support and
attorney's fees and costs. The former wife's motion alleged that she had agreed to
the rotating-custody arrangement because the former husband promised mutual
cooperation on all issues concerning their children. She alleged that his cooperation
had ceased and that the parties' ability to communicate had diminished. The motion
alleged, further, that a serious illness had recently befallen the former husband,
sometimes rendering it impossible for him to provide personal care for the children.
The former wife alleged "[t]here has been a substantial and material change in
circumstances since the entry of the Final Judgment, specifically: 1) the parties do not
communicate with each other; 2) the former husband sometimes is unable to care for
the children; 3) the children desire to live with their mother full-time; 4) it would be
in the children's best interests to reside primarily with their mother; and 5) the former
wife needs child support from the former husband. The motion alleged that the
former wife is unable to pay her attorney's fees and costs and that the former
husband has the financial means to pay.
The former husband filed an answer and a supplemental counter-petition asking
the court to designate him as the primary physical residential parent. Like the former
wife, he conceded that the parties' ability to communicate with each other has
deteriorated since the entry of the final judgment of dissolution. To support his
counter-petition, the former husband alleged that the former wife had failed to abide
by the terms of the final judgment by interfering with, restricting, and trying to control
his visitation; that she had spoken disparagingly to the children about him and his
current wife; that the former wife had harassed him with numerous e-mails and
telephone calls; and that she had refused to keep him informed about the children's
whereabouts outside Florida and about their medical care.
Significantly, a different circuit judge from the one who had entered the final
judgment of dissolution incorporating the rotating-custody plan presided over the
modification hearing. The trial court found that the children's best interests and
welfare will be served by granting the former wife primary residential custody. The
court found that the children seem "somewhat happy" but "act too serious." They
appear to be edgy and pensive when both parents are present; the children seem not
to have the freedom to enjoy themselves when the former husband is present. They
appear to bear a heavier burden to please their father. The court found that due to the
parties' inability to communicate effectively, the children have been denied normal
socialization opportunities and participation in youth activities involving their church
and choir, T-ball, Girl Scouts, karate, and summer camp, and have suffered because
of the parties' behavior toward each other. Despite their mutual inability to
communicate effectively, both parties were found to be very committed, devoted
parents who appear to seek the best for their children. Tracking the factors set forth
in section 61.13(3), Florida Statutes (1999), which are typically used to make initial
custody determinations, the trial court made findings regarding each party and
designated the former wife as the primary residential parent. The court reserved
jurisdiction to decide child support and attorney's fees and costs, which it
The former husband contends that the trial court applied the wrong legal
standard to the issue of whether to modify the custody arrangement. We have de
novo review over this question of law. See Gilliam v. Smart, 809 So. 2d 905 (Fla. 1st
DCA 2002). Clearly, "[a] trial court's authority and discretion in a modification
proceeding are more restricted than at the time of the initial custody determination."
Newsom v. Newsom, 759 So. 2d 718, 719 (Fla. 2d DCA 2000); Young v. Young,
732 So. 2d 1133 (Fla. 1st DCA 1999); Jablon v. Jablon, 579 So. 2d 902 (Fla. 2d
DCA 1991); Zediker v. Zediker, 444 So. 2d 1034, 1036 (Fla. 1st DCA 1984)
(describing movant's "extraordinary burden" to satisfy "substantial change in
circumstances" and "children's best interests" tests to justify modification). In
seeking a modification of custody, the movant must show both that the circumstances
have substantially, materially changed since the original custody determination and
that the child's best interests justify changing custody. Newsom, 759 So. 2d at 719;
Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996). Furthermore, the substantial
change must be one that was not reasonably contemplated at the time of the original
judgment. Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992).
Although the former wife's supplemental petition for modification invoked the
"magic words," alleging a substantial change of circumstances since the final
judgment, in fact the general allegations are insufficient as a matter of law to satisfy
the "substantial change" prong, and the trial court reversibly erred in holding the
former wife to a significantly lower burden to prove only the "best interests" prong.
The fact that the parties had a rotating-custody arrangement, or that both parties were
seeking designation as the primary physical residential parent, did not lessen the
evidentiary threshold, given the facts in this case.
The custody evaluation that preceded the modification hearing clearly
documented the pattern of friction between the parties. The parties' mutual inability
to get along is evident also from the testimony presented at the hearing. The court
sua sponte appointed a licensed clinical psychologist, Dr. McGowan, to conduct a
custody evaluation. One of Dr. McGowan's recommendations was that the parties
continue to share residential responsibility for the children, in light of her finding that
both parents have been primary caretakers and have discharged their parenting duties
adequately. The trial judge's cousin, Dr. Soud, who had been the children's treating
pediatrician since 1998, was offered as a witness without an objection. He testified
that at a conference with both parties, he had indicated that he "was not all that sure"
that the week-to-week rotating-custody arrangement was "an ideal custody situation"
for the children's well-being. He acknowledged that he is not a believer in any sort
of 50-50 custody split because, in his opinion, it does not work very well for children.
The doctor expressed concern that the rotating plan did not provide the children with
an opportunity to have one place to call home or to develop close neighborhood
relationships. He preferred the more traditional arrangement where one parent is the
primary residential custodian but both parents remain actively involved in issues
concerning their children's care. The witness opined that the parties' problems
communicating with each other would exist irrespective of the particular custody plan
in place. Dr. Soud testified that, typically, he can get more reliable medical treatment
information about a child from the parent who, as the primary residential custodian,
spends more time with the child.
Although this record is replete with instances of the parties' mutual failure to
communicate effectively, the former wife failed to allege and prove an unanticipated
substantial, material change in circumstances since the entry of the final judgment.
See Chapman v. Prevatt, 845 So. 2d 976 (Fla. 4th DCA 2003) (finding that trial court
abused its discretion in modifying custody to institute annual rotating-custody plan,
where neither parent had sought rotational residential custody, no evidence was
presented indicating that children were being harmed by parents' hostile treatment of
each other, and fact that parents could not get along post-judgment, without more,
failed to show substantial or material change in circumstances warranting
modification); Newsom, 759 So. 2d at 719 (stating "[t]he fact that the parents cannot
communicate and get along does not constitute a material change in circumstances to
warrant modification of custody"); Zediker, 444 So. 2d at 1034. The parties' failure
to communicate with each other, without some other material, unanticipated change
since the final judgment, is not a proper legal ground for modifying custody. See
Perdices v. Perdices, 800 So. 2d 289, 291 (Fla. 3d DCA 2001) (holding trial court
abused its discretion in modifying custody based on sole allegation that parents'
ability to cooperate with each other had deteriorated, which did not constitute
substantial change in circumstances); Boardman v. Roy, 775 So. 2d 334 (Fla. 2d
Section 61.121, Florida Statutes (1999), states that "[t]he court may order
rotating custody if the court finds that rotating custody will be in the best interest of
the child." Even so, nothing in this plain statutory language indicates the Florida
Legislature intended to eliminate the longstanding presumption that rotating custody
is not in a minor child's best interest. See, e.g., Mandell v. Mandell, 741 So. 2d 617
(Fla. 2d DCA 1999); Ruffridge v. Ruffridge, 687 So. 2d 48, 50 (Fla. 1st DCA 1997).
To support affirmance of the modification order, the answer brief emphasizes the
presumptive disapproval of rotating-custody plans. However, the former wife's
reliance on the presumption against rotating custody misses the mark, as applied to
the modification proceedings at hand, for the approval of the parties' requested
rotating-custody plan was memorialized in the final judgment of dissolution.
The posture of a modification proceeding is entirely different from that of an
initial custody determination, and the party seeking to modify custody has a much
heavier burden to show a proper ground for the change. The trial judge's personal
observation, stated in the record, that rotating custody arrangements never work, does
not justify modifying the custody plan, absent a substantial change of circumstances
resulting in the modification's being in the children's best interests. Voorhies v.
Voorhies, 705 So. 2d 1064, 1065 (Fla. 1st DCA 1998). There is no bright-line rule
disfavoring rotating-custody plans, yet the instant trial court appears to have crafted
one. The Third District Court in Quinn v. Settel, 682 So. 2d 617, 619 (Fla. 3d DCA
1996), recognized that "certain particular circumstances will tend to ameliorate some
of the perceived undesirable effects of such arrangements." The existence of the
presumption against rotating custody in an initial custody determination, or the fact
that a trial judge disapproves of rotating-custody arrangements in general, cannot be
allowed to undermine the long-established requirement that the party seeking to
modify custody satisfy the extraordinary burden set forth in the two-part test. To
hold otherwise would render any rotating-custody scheme in a final judgment
inherently unstable. T he parties' rotating-custody plan was already in place, in
accordance with their own stipulation and agreement, incorporated into the final
judgment of dissolution. Whether or not splitting custody 50-50 was appropriate had
already been adjudicated; thus, the presumption against such arrangements had been
overcome by agreement of the parties and with the agreement of the original trial
Thus, the pertinent question before the trial court in considering the petition
was whether any modification was warranted, not whether the former wife is the
better primary custodial parent. In fact, the relative fitness of the parties as parents
was not the focus of the hearing. The court and Dr. McGowan opined that both
parties are fit, loving parents who simply cannot seem to carry out the terms of their
original custody agreement without acrimony. Given these findings, competent
substantial evidence would support either party's being the primary physical
residential parent if a proper basis for modifying the rotating-custody plan were
alleged and proven. However, no such threshold ground was alleged or established.
Accordingly, there is no ground for changing the custody plan at all.
It is telling that the children's pediatrician observed that their place of residence
is not the issue; that is, changing the custody arrangement will not resolve the
underlying parental communications problems. While the supposed "cure" imposed
by the trial court involves a more conventional plan giving one of the parents primary
physical residential status, the "illness," comprising the parties' mistrust and
miscommunication, is likely to persist under the new arrangement, for the real problem
has not been resolved. Although the record is sketchy on this matter, it appears that
some effort was made to resolve the parties' post-judgment communications
problems through counseling, but that the sessions failed to effect long-term, positive
Aside from the mutual breakdown in communications, another alleged ground
for modification was the former husband's serious illness, which at one time resulted
in an extended period of hospitalization and rendered him unable to provide personal
care for the children. This ground seems moot, given the unrefuted testimony that his
condition is in remission. Although the petition alleged that the children desired to live
with their mother full-time, there is no evidentiary basis for this assertion. In any
event, the trial court found that the reasonable preference of the children should not
be considered in light of their young ages.
The former wife argues that where both parents share custody and allege a
substantial change of circumstances, the "playing field" is level again, so that the
modification question should be treated de novo, as in an initial custody
determination. We disagree. The cases on which she relies for this proposition are
factually distinguishable in several material respects and, thus, are not controlling here.
See, e.g., Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001) (stating that father
seeking primary residential custody of child was not required to prove substantial
change in circumstances at modification hearing, and hearing should have been treated
as initial custody determination using "best interests" standard, where original custody
order provided for rotating custody and expressly provided that either parent could
seek reconsideration of residential-custody issue without showing change in
circumstances); Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999) (finding
neither party bore higher burden of proof in custody modification proceeding, where
final judgment of dissolution had provided for weekly rotating custody, and parties
had agreed originally that child's starting kindergarten would constitute change of
circumstances requiring custody question to be revisited); Skirko v. Skirko, 677 So.
2d 885 (Fla. 3d DCA 1996) (indicating that custody modification proceeding can be
treated as initial custody determination where both parents allege and prove substantial
change of circumstances, and statutory factors normally used for initial custody
decision can be applied to evaluate what is in child's best interests). Because the
instant facts materially differ from the specific circumstances in those cases that
warranted a de novo modification determination, those decisions do not support the
ruling designating the former wife as the primary residential parent. The parties'
motions alleged nothing more than their inability to communicate and cooperate. The
trial court failed to hold the parties to the extraordinary burden of proof required
under the law, and the factual allegations in their motions for modification are facially
insufficient as a matter of law to justify any modification of custody.
Accordingly, we REVERSE the order and REMAND with instructions to
reinstate the rotating-custody plan and the original child-support obligation. We note
that the reversal of child support is not retroactive.
KAHN and VAN NORTWICK, JJ., CONCUR.
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