Opinion
No. 3D06-1618.
July 17, 2006.
Appeal from the Circuit Court, Miami-Dade County, Ellen L. Leesfield, J.
Rosemarie S. Roth; Roy D. Wasson and Annabel C. Majewski, Miami, for appellant. Jacqueline Marie Valdespino, Miami, for appellee.
Before COPE, C.J., and FLETCHER, J., and SCHWARTZ, Senior Judge.
This is an appeal from a non-final post-dissolution order temporarily modifying the visitation schedule of the parties' five minor children. We reverse. The children annually travel with the mother to Spain during the month of July, and are currently in Spain with her. This has been the parties' practice since the 2001 dissolution judgment. The father sought to have the children return to Miami two weeks early, temporarily altering the visitation schedule in order that the children may attend his family's July reunion. However, the parties by settlement agreement approved by the court have specifically fixed the dates of visitation. We find that the father has not shown by competent substantial evidence, nor did the court's order reflect a finding of, a substantial change in circumstances warranting the last-minute modification of the children's 2006 summer visitation schedule. See Barrett v. Barrett, 862 So.2d 100 (Fla. 2d DCA 2003) (holding that competent, substantial evidence was necessary to support the trial court's conclusion that a substantial change in circumstances occurred and that it was in the child's best interest to have increased visitation with his father); Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2d DCA 1993) (ruling that in order to modify visitation, parent must prove a material and substantial change of circumstances and that any proposed change in visitation would be in the best interests of the child); Buttermore v. Meyer, 559 So.2d 357 (Fla. 1st DCA 1990) (holding that modification of visitation requires competent substantial evidence of substantial or material change in circumstances of the parties since entry of original custody and visitation order, and that the welfare of the child will be promoted by such modification); Hunter v. Hunter, 540 So.2d 235 (Fla. 3d DCA 1989) ("Visitation rights may be modified if there is a substantial change in circumstances and the modification will benefit the child."). In this instance, the father's and mother's plans are simply two competing interests regarding the social and educational well being of their children. This court's ruling is effective immediately and will not be delayed by the filing of a motion for rehearing or other post-decision motion. Reversed. SCHWARTZ, Senior Judge, concurs.
Under the circumstances of this case, I concur. I agree with the trial judge that it is ordinarily in the childrens' best interest to participate in family events, and that temporary modifications may be justified in some circumstances — including family reunions — to make that possible. I do not understand the majority opinion to say otherwise. In this instance, however, the parties' agreed visitation schedule provides for the mother to have the children each July when she takes them to Spain. The record reflects that the mother voluntarily shortened her July visitation in 2005 so the children could attend the father's family reunion in Oklahoma. This year the father demanded the same without, so far as I can tell, any proposal for adjusting the mother's visitation to compensate for the fact that she would be returning the children 9 days early. When the mother attempted to state what she had been prepared to do this year, the father successfully kept the mother's position from the court by objecting that this amounted to settlement negotiations. The father waited until the eleventh hour to file his motion, after travel arrangements had already been made. The fact that the father will pay for the expense of changing the children's air tickets does not adjust for the mothers loss of the agreed summer visitation time and, absent circumstances more compelling than these, such changes should not be ordered at the last minute. If this were a one-time or rarely-occurring reunion, I would agree with the trial court's decision to grant temporary relief. However, since this apparently is an annual reunion (about which no provision exists in the parties' visitation agreement), and the father is asking that the children attend for the second year in a row, his 2006 request cannot fairly be viewed as requesting "temporary" relief. If this is to be an ongoing issue, then it should be addressed in the father's pending motion to modify several aspects of the summer visitation schedule, which has not yet been heard.