Naime v. Corzo III

Third District Court of Appeal
State of Florida

Opinion filed December 21, 2016.
Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-1169
Lower Tribunal No. 09-16437
________________

Kristy Naime,
Appellant,

vs.

Jacinto T. Corzo, III,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.

Abramowitz & Associates and Jordan B. Abramowitz, for appellant.

Phillips Lanier, PLLC and Emily Joyce Phillips, for appellee.

Before SHEPHERD, EMAS and FERNANDEZ, JJ.

EMAS, J.
 Kristy Naime appeals a final order denying her verified petition to relocate

to Port St. Lucie with her minor child. We affirm the court’s order insofar as it

denies the petition, but reverse and remand for the trial court to enter an amended

order deleting the language imposing an impermissible geographical restriction on

any future relocation by Mother.

Kristy Naime (“Mother”) and Jacinto Corzo III (“Father”) were married in

2002. Their minor child was born in 2006. In 2009 the Mother and Father

separated, a petition for dissolution was filed, and the parties entered into a

mediated settlement agreement in November 2010. This agreement was ratified by

a final judgment of dissolution of marriage, rendered in January 2011. The

mediated settlement agreement and final judgment did not, by its terms, address

relocation of the minor child.

In June 2013 Mother filed a verified petition seeking to relocate with the

minor child from Miami-Dade County to Port St. Lucie, Florida. Father answered

and objected to the proposed relocation. The trial court held a final hearing during

which the parties testified and presented the testimony of six other witnesses.

Thereafter, the trial court entered an order denying Mother’s petition. On appeal,

Mother raises three issues; the first two contend that the trial court abused its

discretion in denying the petition based on the evidence presented. Having

reviewed the trial court’s order, and the record evidence upon which it was based,

2
we find that the trial court properly considered and applied the requisite and

applicable factors set forth in section 61.13001(7), Florida Statutes (2014), and

articulated findings of fact that are supported by competent substantial evidence.

We find no abuse of discretion in the trial court’s order denying the petition for

relocation, and to hold otherwise would require us to substitute our judgment and

findings for those of the trial court. See Young v. Hector, 740 So. 2d 1153, 1159

(Fla. 3d DCA 1998) (quoting Reinhart v. Reinhart, 291 So. 2d 103, 105 (Fla. 1st

DCA 1974), which observed: “It may well be that were we permitted to hear the

case de novo we might enter a different final judgment. However, such is not our

prerogative.”)

However, we agree with Mother that the trial court erred in including the

following language in its order: “The minor child shall not be permitted to relocate

outside of Miami-Dade County, Florida.” Such prospective relief was not pled or

sought by Father, nor was it tried by consent. It should not have been included in

the order denying relocation.1 See Scariti v. Sabillon, 16 So. 3d 144 (Fla. 4th DCA

2009). Further, such a geographical restriction is contrary to the provisions of the

relocation statute. See §61.13001(1)(e), Fla. Stat. (2011) (defining the term

“relocation” as a change of location that is at least 50 miles from the location of the

1 Father did not address this issue in his answer brief, and properly conceded in
oral argument that this provision should not have been included in the order
denying relocation.

3
principle residence of a parent at the time of the last order establishing or

modifying time-sharing).

We reverse and remand in part for the trial court to enter an amended order

deleting the prospective restriction which provides that the minor child shall not be

permitted to relocate outside of Miami-Dade County, Florida. The order is in all

other respects affirmed.

Affirmed in part, reversed in part and remanded with directions.

FERNANDEZ, J., concurs.

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 Naime v. Corzo
Case No. 3D14-1169

SHEPHERD, J., dissenting.

After a careful review of the trial transcript and supporting evidence

introduced at the trial of this case, I conclude the trial court abused its discretion in

denying the Former Wife’s Petition to Relocate from Miami-Dade County to Port

St. Lucie, Florida. Accordingly, I respectfully dissent from the contrary

conclusion reached by the majority.2 A brief summary of the facts of the case is

necessary to explain my decision.

Procedural and Factual Background

Naime and her former husband, Jacinto T. Corzo, III, were married on June

22, 2002 in Miami-Dade County Florida. The marriage produced one child, a son

born on August 9, 2006. The final judgment dissolving their marriage, rendered on

January 6, 2011, incorporated a mediated settlement agreement which provided for

shared parental responsibility and the following time-sharing schedule: The child

would be in the mother’s care during the week with the parties alternating

weekends (from Fridays after school until Monday morning before school).

Midweek, the father would have care of the child after school on Tuesday until

2 I agree with that portion of the opinion directing the trial court to delete the
language of the order relating to prospective relief.

5
Thursday morning on the mother’s weekends, and from Wednesday after school

until Thursday morning on his weekends. The agreement also provided for equal

time-sharing during holidays and school vacations. It was silent on the issue of

relocation. Since the date of dissolution, both parties have remarried.

On June 4, 2013, Naime filed a verified petition for relocation, seeking

permission to relocate with the child to Port St. Lucie, near where her new husband

had just landed a job as a firefighter four months earlier, and contracted for a new

home. Naime alleged the move would improve the family’s quality of life and

would be in the child’s best interests. Corzo objected to the petition. His principle

objection was that the distance between the mother’s present home and proposed

future home, 135 miles, would significantly interfere with his time-sharing. The

petition was tried December 18, 2013, and February 6, 2014, at which time the trial

court heard testimony from Naime and her new husband, and from Corzo, his new

wife, his mother, and his two sisters. On May 2, 2015, the trial court entered a

final judgment denying the petition. While it dutifully treated each of the factors

in the relocation statute, section 61.13001(7) of the Florida Statutes (2013), a close

analysis reveals that the order of the trial court is not supported by competent,

substantial evidence. In fact, the final judgment completely ignores the evidence

offered by the mother.3

3The trial judge received draft judgments from the parties. The 19-page judgment
appears to have been drafted by Corzo’s counsel and signed, after the addition by

6
 Analysis

The focus of any contested relocation case is on the best interests of the

child. The parent wishing to relocate has the initial burden to prove by a

preponderance of the evidence that relocation is in the best interests of the child. §

61.13001(8). If the initial burden is met, the burden shifts to the non-relocating

parent to show by a preponderance of the evidence that relocation is not in the best

interests of the child. Id. Further, under current law, “[a] presumption in favor or

against a request to relocate with the child does not arise if a parent or other person

seeks to relocate” even if “the move will materially affect the current schedule of

contact, access, and time sharing with the non-relocating parent or other person.” §

61.13001(7).

An appellate court reviews a trial court order regarding relocation on an

abuse of discretion standard. Muller v. Muller, 964 So. 2d 732, 733 (Fla. 3d DCA

2007). In reviewing the order, we are charged with the obligation to determine

whether there is substantial, competent evidence to support the trial court’s

findings under section 61.13001(7). A relocation decision made upon findings that

are not supported by competent, substantial evidence constitutes an abuse of

the trial judge of conclusory statements at the end of randomly selected paragraphs
conveniently following selectively drafted factual recitations by Corzo’s counsel.
See Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) (cautioning against
verbatim adoption of party’s proposed judgment which creates the appearance the
trial court did not independently make factual findings and legal conclusions).

7
discretion. Fredman v. Fredman, 960 So. 2d 52, 60 (Fla. 2d DCA 2007);

Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003); Dorta-

Duque v. Dorta-Duque, 791 So. 2d 1148, 1149 (Fla. 3d DCA 2001). Of course, we

do not engage in reweighing the evidence or make value judgments which are best

left to the trial judge. Muller, 964 So. 2d at 733.

In 2006, recognizing that the issue of relocation and its effect on the

custodial arrangements of divorced parents was one of increasing concern in our

mobile society, the Florida Legislature revised and extended the then existing

factors it had decreed in former section 61.13(2)(d) that “the court must consider”

in reaching a relocation decision,4 and placed them in a new section, 61.13001 of

the Florida Statutes, titled “Parental relocation with a child.” Ch. 2006-245, Laws

4The factors, as they existed just prior to the 2006 amendments to the law read as
follows:

1. Whether the move would be likely to improve the general quality of
life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and
exercised.
3. Whether the primary residential parent, once out of the jurisdiction,
will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a
continuing meaningful relationship between the child and the
secondary residential parent.
5. Whether the cost of transportation is financially affordable by one
or both parties.
6. Whether the move is in the best interests of the child.

§ 61.13(2)(d), Fla. Stat. (2005).

8
of Fla. Closely paralleling the prior law, except for expressly adding financial

betterment to the list of considerations, the new relocation statute, as amended

since its adoption in 2006, articulates the factors that now “the court shall

evaluate” in determining whether a move will be in the best interest of the child to

be the following:

(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.

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 (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 relocation, including child support,
spousal support, and marital property and marital debt obligations.

(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.

§ 61.13001(7). Although the relocation statute has long required that the court

“consider” or “evaluate” each factor in reaching its decision, a relocation decision

is not reducible to a mathematical calculation of points. Rather, the factors are

guidelines to assure the court considers how the proposed move will affect the

child’s overall quality of life, existing relationships, and physical, educational and

emotional development. In the end, the question in a relocation case ultimately

resolves to a balancing of the child’s quality of life against any damage to the

relationship with the non-relocating parent. In the case before us, the trial court

10
reversibly erred through a misapplication of the guidelines to reach an incorrect

decision on the central issue presented. Let me explain through a discussion of the

factors:5

(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.

In analyzing the first factor, the judgment is replete with references to the

child’s “particularly close bond” with the father and his relationship with the

father’s extended family. For example, the judgment states the father

“consistently, if not always, exercised his timesharing with the minor child,” “has

been consistently involved in the minor child’s life since birth,” “has always lived

near the minor child,” and “the only reason he bought the house where he currently

lives with his new wife, was so that he could be closer to his son and his son’s

school, [despite the fact that it] is a commute of more than one . . . hour to his

employment.” The trial court also “found” as a fact that the “father is extremely

responsible and has always maintained current with his child support payments.”

The father’s witnesses – his mother, new wife and two sisters – echoed the father’s

5 Factors (d), (i) and (j) will not be discussed. At the time of the hearing, the child
was too young to be able to express a preference of residential desirability (Factor
(d)), “career and other opportunities for the objecting parent or other person”
(Factor (i)) were irrelevant to the analysis, and there was no “history of substance
abuse or domestic violence” in the family (Factor (j)).

11
testimony, opining, unsurprisingly from their viewpoint, that the move would be

“detrimental to the child.”

However, the judgment, as crafted, pays absolutely no heed to the testimony

of the mother and her new husband on this factor, including the mother’s testimony

that the father abandoned the family for another woman in early 2009, and that she

did not know where he was for at least six months. During this time, the mother

cared for the child on a $35,000 annual salary without support from the father, a

point admitted by him in his testimony, but disregarded by the trial judge. In fact,

Corzo did not start paying child support until he consulted with a lawyer to begin

dissolution proceedings, months after he abandoned his family. There is obviously

a significant difference between being an “extremely responsible” father who “has

always maintained current with his child support payments,” as the final judgment

would have it, and being made responsible by pre-litigation advice of counsel.

The truth of the matter is that the child has struggled since the parties

separated in 2009. The mother first rented an apartment in Cutler Bay upon

finding that Corzo had cheated on her. Six months later, she was able to move

back into the marital home for a period, and then moved in with her grandparents

and uncle in a one-bedroom apartment in order to make ends meet. Thereafter, she

moved into a two-bedroom apartment in the Design District and then, of necessity,

back into her grandparents one-bedroom home. At the time of trial, she and her

12
son were living in that one-bedroom home along with three other persons. For her

trouble, the final judgment faults the mother for creating “instability” in the life of

the child and rates it as a factor “weigh[ing] against granting the petition,” while

never mentioning anywhere in the final judgment that her former husband was, at

the same time, earning $124,000 or more per year as a store manager at a

Walgreen’s in Miami Beach, and diverting his income throughout this period to the

purchase of a four-bedroom home in Cutler Bay for his new wife and a new baby.

The trial court could not even afford Naime the courtesy of discounting her

and her new husband’s testimony on the ground that it was not credible or on the

basis of some other canard. Instead, the judgment signed by the trial judge paints a

portrait of an idyllic family life between the child, the father and his family, while

mother and son are ensconced in a hovel to enable the father’s pleasure. This state

of affairs, only the happy half of which is recounted in the judgment of the court,

“weighs” in the estimation of the trial court “against relocation.” The conclusion

defies credulity.

(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.

On this factor, the trial court found that Corzo presented substantial,

competent evidence that relocation would negatively impact the child’s educational

and emotional development, that changing schools would be disruptive to his

13
educational advancement because of his relationship to his teacher and classmates,

and that the relocation would prevent Corzo from participating in the child’s

school. This is not supportable. At the time of the relocation hearing, the child

attended Assurant Satellite Learning School, which is associated with Naime’s

employer in Miami. Her department recently had been downsized from twenty-

five to five employees, and her job was itself at risk. Upon Naime’s severance

from employment, the child would no longer be able to attend his current school.

The child’s change to a new school was almost inevitable at the time, either in

Miami or Port St. Lucie.

More significantly, although Corzo claims he bought his present home only

five miles from the child’s school to facilitate the father’s involvement in his son’s

school activities, the testimony at trial established that he had little involvement in

his son’s education. Corzo admitted he does not take his son to school when the

child is in his care, and further that his new wife cannot do so because of the baby.

Because he needs to be at work by 7:30 a.m., Corzo wakes the child up before 6:00

a.m. on school days and drives him forty-five minutes to the north to Allapattah,

where the paternal grandmother lives, so the grandmother can then drive the child

forty-five minutes to an hour back south, instead, incidentally, of paying for early

morning child care that is available at the school. This means the child has about

an hour and a half to a two-hour commute to school on the weekdays he is in his

14
father’s care. In addition, the evidence shows Corzo visited the child’s school and

spoke to the child’s teacher on only one occasion. On the other hand, the trial

court ignored (in fact, inaccurately contradicts) Naime’s testimony regarding the

highly rated elementary school three miles from the Port St. Lucie home her son

would attend upon relocation, and the flexibility her new husband’s income and

lower living costs in the area would afford for her to work part-time in Port St.

Lucie and be home for her son in the afternoon in the stead of placing him in after

school care as is presently the case.

(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.

Naime’s proposed substitute arrangement in the relocation was to maintain

the father’s every other weekend time-sharing, but give the father the majority of

the summer – all but two weeks – with his son. Holiday time-sharing would not be

disturbed. The trial court found this proposal “unsatisfactory” because the Father

feels his bond with the child will suffer since he will go almost twelve days at a

time without seeing his son for alternating weekends, whereas with the current

schedule, the Father never goes more than four days at a time without seeing the

minor child. The trial judge found it would not be “possible for the Father to

15
maintain the same relationship with the minor if the minor child relocates,

especially during the school week.” (Emphasis added.) However, the issue on

substitute arrangements is not whether the new arrangement offers the same degree

of frequent and continuing contact, but rather whether the proposed new visitation

is “adequate.” See Stockburger v. Stockburger, 633 So.2d 1140, 1143 (Fla. 2d

DCA 1994) (emphasis added) (concluding that extended visits may serve the

parental relationship better than the typical weekly visit or at least be sufficient to

sustain a close parental relationship); see also Wilson v. Wilson, 827 So. 2d 401

(Fla. 2d DCA 2002) (reversing the order denying relocation because the trial court

used an incorrect legal standard). In this case, Naime offered Corzo the majority

of the child’s summer, which would have improved and increased the child’s

quality time with Corzo and his family members. The paternal aunts stated they

primarily enjoy time with the minor child during the summer months, and Corzo

stated he is able to take ample vacation time during the summer months. More

significantly, under Naime’s proposed post-relocation time-sharing schedule,

Corzo’s weekend overnight time-sharing would remain intact. As Naime made the

offer for the extended summer visitation, there is no question of her compliance

with this schedule. Thus, the combination of continued alternative weekend

visitation and extended summer visitation provides sufficient contact to maintain a

continued close relationship between father and son.

16
 (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.

Because the trial court’s findings as to this factor are the most troubling, I set

them forth in their entirety:

A. The Mother testified that she does not have a new job in Port St.
Lucie and is willing to quit her current job with the Assurant Group,
which she has held for many years. Accordingly, the relocation will
not provide any financial benefit to the minor child because the
Mother will lose her current income.

B. The minor child’s educational opportunities will change because
he will be forced to start a new school, and he will not be attending
school on the Mother’s campus of employment as he has done since
starting school. The Mother did not produce any evidence during the
trial that he would be attending a better school system in Port St.
Lucie than the one he is currently attending in Miami.

C. The Mother did not meet her burden of proving by a
preponderance of the evidence that the relocation will enhance the
general quality of the minor child’s life. The Mother testified that
because she is moving into a large home with her new husband, the
minor child will have his own room, which is a better living
arrangement than where they are currently living with her
grandparents. The Mother seems fixated on the quality of the new
home, and the dependency on her new husband’s employment.
However, the Mother and her new husband failed to provide any
evidence at trial that they looked for their own home, in Miami, that
would give the minor child his own bedroom. In fact, the Father
testified that he pays less for his four bedroom home in Miami than
the Mother will be paying for her home in Port St. Lucie. The sole
reason for the relocation is that the Mother’s new husband no longer
wishes to commute back and forth between Miami and Port St. Lucie
where he is employed.

D. The Mother failed to produce any substantial or credible evidence
that she would receive better medical treatment for her diabetes in

17
 Port St. Lucie as opposed to in Miami. The Mother failed to testify as
to the names of any physicians in Miami who had waiting lists for
months at a time to treat her for diabetes. The Mother’s testimony
was lacking in credibility as to this issue because there are numerous
physicians in Miami, all with different waiting time(s) to see new
patients.

E. The Mother’s diabetes is also a concern for the relocation to Port
St. Lucie because she will no longer have her own family as a support
system. The Mother also grew up in Miami, like the Father, and all of
her family, including her own grandparents, live in Miami and are
able to assist her if she becomes ill. In fact, the Father’s mother . . . ,
who the Court finds a credible witness, testified that she was very
concerned about the Mother living in Port St. Lucie, so far away from
her support system, because the Mother had fallen ill in the past and
needed help from her as well as her own family members. This factor
delineates a pattern not justifying mother’s petition.

As to the mother’s job, Naime testified she will be leaving her employment

upon moving to Port St. Lucie, but further stated her new husband, who recently

had obtained the firefighter’s job in a nearby town, is financially able to support

her and the child on his new salary. At a minimum, the couple’s income will

remain the same as it was when both worked in Miami-Dade County, the new

husband then holding a lesser job. Concerning the child’s school, Naime’s

separation from her employer will result in a change of the child’s school, and,

contrary to the trial court order, the child would attend an “A” school in a family-

oriented neighborhood in Port St. Lucie where her new home is located.6 In short,

the child would be going from a one-bedroom apartment with four other adults to a

6 In comparison, father’s counsel conceded during trial that “[Miami’s] not the
friendliest place in the universe.”

18
four-bedroom house, where he has his own bedroom, a playroom, and an ample

backyard in which to play.

Finally, the final judgment, as primarily drafted by counsel and signed by

the trial judge, raised the mother’s diabetic condition as reason against allowing

relocation, mainly based on a perceived “lack of family support.” However,

pursuant to the record before us, the mother does not have a history of a

detrimental illness or the like. The trial court relied on the testimony of the

paternal grandmother to portray Naime’s diabetes as a major concern. However,

the grandmother’s actual testimony was that on one occasion in the past Naime fell

ill and was taken to the hospital, and the grandmother “believed” it was because of

a diabetic problem. On rebuttal, Naime refuted the paternal grandmother’s

testimony, testifying that since 2009 she became ill just twice, and neither time was

her illness related to diabetes. Nor, on either of those occasions, was it necessary

for the paternal grandmother or any other member of Corzo’s family to provide

any assistance to Naime. However, even if Naime suffers a diabetes-related

illness, common sense tells us she would be much safer living with her firefighter

husband, who is also and EMT, than with her elderly grandparents.

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

This is the most telling point of all. Although completely ignored by the

trial judge and not even acknowledged to have occurred in the final judgment

19
executed by the trial court, the record clearly shows a father who places his own

interests ahead of his child. The testimony is so revealing and disturbing that I

again will ask the reader’s indulgence to permit a verbatim recitation of an

illustrative portion:

Q. Have you ever texted with him?

A. Yes.

Q. I’m going to show you a series of text messages between you
and him.
...
THE WITNESS: Okay. Yeah, I remember these texts.

BY MS. SACHS:

Q. So what were the texts about?

A. This one was about, I just picked up Tyler from school. He
had come from his dad’s house the day prior. And we were in the
car and we were talking about the house because Tyler was really
excited about the house. He has his own room and everything.
And out of the blue, he said, Daddy said that I’m never going to
see him again, and I questioned him. I said, what do you mean
you’re never going to see Daddy again? He goes, he said, Once
we move, he says that we’re never going to see him or his family
again.
...
Q. Okay. And what is the first text message you wrote?

A. I said, Did you tell Tyler he wasn’t going to see you or your
family anymore since he is moving?

Q. And what was his response?

20
 A. He says, Question mark, question mark, question mark. Tyler
is not moving.

Q. And what did you say?

A. I said, Why would you tell him that?

Q. And then he said?

A. He said, Tell him what? And then I said, That he won’t see
you or your family if he moved?

Q And then what did he say?

A. He said, What are you talking about? Tyler is not moving.

Q. And then on the small ones?

A. I go, So why did you tell him that? He said, I didn’t. If you
have anything to say, contact my lawyer. And then I said, You
obviously did because Tyler told me that you said since I’m
moving away with him, he is not going to see you or your family
anymore. And then he said, I have nothing to discuss. And then I
said – he says, I have nothing to discuss with --

Ignoring this testimony, the final judgment opines that “The only reason for

the mother’s relocating is that she has remarried,” “the new husband is sick and

tired of doing the commute back and forth between Port St. Lucie and Miami,” and

that “the mother and her new husband made no credible efforts to find substitute

housing in Miami.” The latter two reasons are legally irrelevant. Whether the

mother’s new husband likes or dislikes his commute is of no moment. Similarly, it

is not a pre-condition to prevailing on a petition for relocation for the petitioner to

prove that she and her new husband made a bona fide effort to find substitute

21
housing in Miami. Imposition of these two requirements on the petitioner

constituted judicial overreach. It is also an overstatement to say that the “only

reason the mother’s relocating is that she has remarried.” (Emphasis added.)

It cannot be gainsaid that the mother’s desire to be with her new husband is

an animating reason for the filing of the petition. It may even be the primary

reason. Another may be that her new husband purchased a home thirty minutes

from his job at a price ($186,000) not likely to be matched in Miami-Dade County

before she filed her petition in this case. However, the mother’s motivation for

desiring to relocate and any forces impelling her to do so are not our concern. She

has a constitutional right to live wherever she pleases. The issue before us is

whether it is in the best interests of the child to permit him to follow. On this

issue, there are many reasons to support the son’s move to Port St. Lucie. Among

them are the fact that the relocation would remove the child from a one-bedroom

apartment occupied by five persons to a home where the child would have his own

room and a backyard in which to play in a family-oriented neighborhood. He also

would be enrolled in an “A” graded school. In addition, because the new

husband’s increased salary, due to his obtaining a hard-to-get firefighter’s job, is

the near equivalent of the combined income he and the mother earned in Miami-

Dade County when he worked at a lesser job, the mother would not have to work

full time and could be home for her son after school instead of placing him in after-

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school care, the present circumstance in Miami-Dade County. It seems

unimpeachable that the child’s quality of life will be significantly better in Port St.

Lucie.

(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.

The father is a manager of a Walgreen’s store located in Miami Beach. With

bonuses, he routinely earns a six-figure income. His most recent annual income

was $124,000. The mother’s new husband obtained his firefighter job just four

months before the mother filed her petition. He received a substantial salary

increase to $60,000 in his new employment, and was able to contract for a new

house for his new family in Port St. Lucie at a price not imaginable in Miami-Dade

County. The mother professes that she will obtain part-time employment in Port

St. Lucie after the move. Her living expenses will be lower there. The relocation

is necessary to improve her economic circumstances.

(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 relocation, including child support, spousal support, and
marital property and marital debt obligations.

As set forth above, the father failed to meet his child support obligations for

several months after the parties separated and did not even let the mother know of

his whereabouts during the first six months after the separation. In contrast, the

mother did her best to support herself and the minor child with substantially

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diminished resources. Unlike the father’s reason for opposition, ignored by the

drafters of the final judgment, the mother’s reasons for seeking relocation of the

minor child are pure. She has remarried an individual who has a stable job and

strong annual income a few counties north of Miami-Dade County. The son’s

quality will be better in all respects if he moves with the mother outside of Miami-

Dade County. The story of this mother and the journey she has travelled in the last

five years since her divorce is the story of many women (and men) in the mobile

society in which we live. She, no less than her remarried former husband, should

be able to continue on that journey, and not forfeit custody of her son to do so – a

condition precedent it is quite apparent from a close reading of the record the

former husband would be delighted to exact.

Conclusion

When all is said and done in this case, the best the father has to offer his

child is more frequent visitation with his son than will likely be the case if the child

moves away to Port St. Lucie with his mother. That is not a thing to be sneezed at.

However, if modification or a decrease in the quantity of time-sharing was the sole

or ultimate factor in making a relocation determination, relocations would be rare.

In fact, our relocation statute specifically prohibits a judge from considering the

change in the non-relocating parent’s time-sharing schedule or the decrease in the

non-relocating parent’s quantity of time-sharing as the ultimate factor in denying a

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relocation request. § 61.13001(7) (“A presumption in favor of or against a request

to relocate with the child does not arise if a parent or other persons seeks to

relocate and the move will materially affect the current schedule of contact, access,

and time-sharing with the nonrelocating parent or other person.”). Balancing the

salutary effects relocation will have on the child’s quality of life in this case,

ranging from removal from a one-bedroom apartment with four others to a home in

a family oriented neighborhood, matriculation in an “A” graded school, and a

mother able to greet him at home after school, against the potential damage to the

non-relocating parent and his family from the relatively modest adjustment in time-

sharing and visitation schedule necessary to achieve those benefits, this case cries

out for a grant of the petition. The trial court’s denial of the mother’s petition in

this case was arbitrary, capricious and contrary to law.

I would reverse the order on appeal.

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