Opinion
No. 1D19-2012
01-21-2020
Ramona Faye LIGHT, Appellant, v. John Michael KIRKLAND, Appellee.
Cynthia Stump Swanson, Swanson Law Center, P.A., Gainesville, for Appellant. Adam Vorhis, Asheville, North Carolina, for Appellee.
Cynthia Stump Swanson, Swanson Law Center, P.A., Gainesville, for Appellant.
Adam Vorhis, Asheville, North Carolina, for Appellee.
Bilbrey, J.
Appellant/mother, Ramona Kirkland, challenges the supplemental final judgment which modified the timesharing schedule set forth in the final judgment of dissolution of marriage. Because the trial court considered an impermissible factor in determining that a substantial change in circumstances occurred, we vacate the supplemental final judgment and remand for further proceedings.
The final judgment provided that the parties' minor child was to reside with her mother during the school week and was to spend three weekends a month with her father. The father moved to modify the final judgment on a variety of grounds. After receiving testimony from both parties, the trial court ordered an immediate change in timesharing with the child residing with the father during the school week. Such a change necessitated a transfer to a new school. In the supplemental final judgment, the trial court based the change on the fact that the child was required to repeat the second grade the year before and the parents were unable to "co-parent effectively."
An appellate court reviews an order modifying timesharing for an abuse of discretion, although the discretion afforded to a trial court in a modification proceeding is narrower than in an initial timesharing determination. Ness v. Martinez , 249 So. 3d 754, 757 (Fla. 1st DCA 2018) ; Ragle v. Ragle , 82 So. 3d 109, 111 (Fla. 1st DCA 2011). An order modifying a timesharing schedule established in a final judgment must be supported by competent, substantial evidence showing that there has been a substantial, material, and unanticipated change in circumstances since the final judgment of dissolution and that the modification will be in the best interests of the child. Ness ; Lewandowski v. Langston , 969 So. 2d 1165, 1169 (Fla. 5th DCA 2007) ; see also § 61.13(3), Fla. Stat. (2018). Unless it has been shown that the "conditions have become materially altered" since entry of a prior decree, Wade v. Hirschman, 903 So. 2d 928, 933 (Fla. 2005) (quoting Frazier v. Frazier , 109 Fla. 164, 147 So. 464, 466 (Fla. 1933) ), then the "extraordinary burden" of establishing a sufficient basis for modification has not been met, Boykin v. Boykin, 843 So. 2d 317, 320 (Fla. 1st DCA 2003). See generally McKinnon v. Staats , 899 So. 2d 357, 359 (Fla. 1st DCA 2005).
As indicated, the trial court ordered modification after finding that parents could not "co-parent effectively" and were otherwise unable to "get along." There is ample authority holding that an acrimonious relationship between parents or the lack of effective communication between parents is not a proper basis to find a substantial change in circumstances. See Ogilvie v. Ogilvie , 954 So. 2d 698, 701 (Fla. 1st DCA 2007) ; Korkmaz v. Korkmaz , 200 So. 3d 263 (Fla. 1st DCA 2016) ; Hutchinson v. Hutchinson , 287 So.3d 695 (Fla. 1st DCA Dec. 27, 2019).
A review of the record indicates that the trial court connected, to some degree, the parents' acrimonious relationship with the child's poor performance in school. Because the child's school performance was tied to the impermissible modification ground of poor co-parenting, we remand the cause to the trial court for clarification as to whether the child's school performance during a prior school year alone was a sufficient basis to find a substantial, material, and unanticipated change in circumstances since the entry of the final judgment.
Accordingly, the order modifying the final judgment is VACATED , and the cause is REMANDED for further proceedings.
Makar and Jay, JJ., concur.