?CunC v.

PLC1C8
740 So.2d 1133 (1998)

8oberL S. ?CunC, AppellanL,
v.
Allce C. PLC1C8, Appellee.
no. 96-2847.

ulsLrlcL CourL of Appeal of llorlda, 1hlrd ulsLrlcL.


!une 24, 1998.

Cplnlon CranLlng 8ehearlng !uly 14, 1999.

8ehearlng uenled SepLember 1, 1999.

8arbara Creen, Coral Cables, Lllen Lyons, Mlaml, for appellanL.
?oung, 8erman, karpf, and 8urLon ?oung, and Andrew S. 8erman, Mlaml 8each, PecLor and Parke, and Lance A. Parke,
Mlaml, Amy u. 8onner, Mlaml, for appellee on rehearlng.
8efore SCPWA81Z, C.!., and nLS8l11 and CCuL8lCP, !!.


Cplnlon CranLlng 8ehearlng Ln 8anc !uly 14, 1999.
L8 Cu8lAM.
1hls ls an appeal from a flnal [udgmenL of dlssoluLlon of marrlage. We reverse and remand for furLher proceedlngs.
1he record lndlcaLes LhaL Lhe parLles were marrled ln new Mexlco ln lebruary 1982. 1he parLles have Lwo daughLers,
8aylor, who was born ln 1983, and Avery, who was born ln 1988. Slnce Lhe chlldren were born, Lhe parLles have always
had elLher a llve-ln nanny, au palr, or housekeeper, who has helped care for Lhe chlldren.
AL Lhe Llme of Lhelr marrlage, one spouse, an archlLecL, was lnvolved ln several buslness venLures, lncludlng a publlshlng
company and a cusLom-home bulldlng flrm. 1he archlLecL was very successful unLll Lhe sLock markeL crashed ln CcLober
1987.
1he oLher spouse was an aLLorney, who, aL Lhe Llme of Lhe parLles' marrlage, had a law flrm. 1he aLLorney's lncome
would vary somewhere beLween $30,000 and nearly $100,000 per year.
AfLer Lhe parLles' youngesL chlld was born, Lhe parLles dlscussed a posslble relocaLlon Lo llorlda. 1he archlLecL Lold Lhe
aLLorney LhaL lf Lhe aLLorney could flnd a [ob ln Mlaml, Lhe archlLecL would be wllllng Lo relocaLe. ln 1989, Lhe aLLorney
found employmenL aL a presLlglous, mld-slzed law flrm earnlng approxlmaLely $120,000 per year. ShorLly LhereafLer, Lhe
aLLorney and Lhe chlldren relocaLed Lo Mlaml, whlle Lhe archlLecL remalned ln new Mexlco for slx monLhs Lo flnlsh
several pro[ecLs and Lo sell Lhe parLles' home. ln Lhe summer of 1992, Lhe archlLecL reLurned Lo new Mexlco for
approxlmaLely 14 monLhs Lo dlrecL a Lreasure recovery pro[ecL. uurlng Lhe 14-monLh perlod, Lhe chlldren remalned ln
Mlaml wlLh Lhe aLLorney, buL Lhe chlldren vlslLed wlLh Lhe archlLecL approxlmaLely every flve weeks.
ln Lhe fall of 1993, Lhe aLLorney, who by Lhls Llme was earnlng approxlmaLely $273,000 wlLh Lhe mld-slzed law flrm,
accepLed a shareholder poslLlon aL one of llorlda's largesL law flrms earnlng over $300,000 per year. ShorLly afLer Lhe
aLLorney accepLed Lhe poslLlon wlLh Lhe new flrm, Lhe archlLecL reLurned Lo llorlda. upon Lhe archlLecL's reLurn, Lhe
parLles separaLed alLhough Lhey boLh conLlnued Lo llve ln Lhe marlLal home. 1he aLLorney flled for dlvorce ln May 1993.
AL Lrlal, Lhe courL accepLed evldence relaLlng Lo allmony, chlld cusLody, and Lhe equlLable dlvlslon of Lhe marlLal asseLs
and llablllLles. 1he evldence lncluded Lhe LesLlmony of Lhe parLles, nelghbors, frlends, Lhe chlldren's Leacher, school
counselor, and Lhe managlng parLner of Lhe law flrm where Lhe aLLorney ls currenLly employed.
1he aLLorney LesLlfled LhaL when Lhe aLLorney ls lnvolved ln a Lrlal, Lhe aLLorney works approxlmaLely 12 Lo 14 hours per
day, slx Lo seven days per week. Cn Lhe
[ 740 So.2d 1133 ]

oLher hand, when Lhe aLLorney ls noL ln Lrlal, Lhe aLLorney works 43 Lo 30 hours per week. Moreover, durlng Lhe pasL
Lwo years, Lhe aLLorney has had several cases LhaL have requlred Lhe aLLorney Lo Lravel Lo CenLral llorlda. When
Lravellng, Lhe aLLorney would elLher leave Mlaml very early ln Lhe mornlng and reLurn laLe aL nlghL, or would sLay ln
CenLral llorlda overnlghL. 1he cases LhaL requlred Lhe aLLorney Lo Lravel Lo CenLral llorlda have been seLLled, and Lhe
aLLorney's remalnlng cases wlll no longer requlre Lhe aLLorney Lo Lravel ouLslde of Mlaml. ln addlLlon Lo Lhe aLLorney's
employmenL aL Lhe law flrm, Lhe aLLorney also Leaches aL a law school.
1he managlng parLner gave deposlLlon LesLlmony sLaLlng LhaL Lhe aLLorney ls a senlor llLlgaLlon parLner and ls
responslble for ma[or cases. 1he managlng parLner also LesLlfled LhaL lL ls "very easy" Lo accommodaLe famlly problems
when an aLLorney works ln Lhe corporaLe or real esLaLe deparLmenL, buL LhaL lL ls "very dlfflculL" Lo accommodaLe famlly
problems when an aLLorney works ln Lhe llLlgaLlon deparLmenL. lurLher, he sLaLed LhaL Lhe average llLlgaLlon parLner
works 10 Lo 11 hours per day, and LhaL llLlgaLors cannoL work only elghL hours per day, flve days per week.
1he parLles LesLlfled LhaL excepL for a few small remodellng [obs, Lhe archlLecL has been unemployed for approxlmaLely
slx years. AfLer Lhe archlLecL moved Lo Mlaml, Lhe archlLecL aLLempLed Lo flnd employmenL, buL was unsuccessful. 1he
archlLecL lacks Lhe compuLer skllls LhaL are needed Lo flnd employmenL as an archlLecL ln Lhe presenL [ob markeL. 1he
archlLecL LesLlfled LhaL boLh unlverslLy of Mlaml and llorlda lnLernaLlonal unlverslLy have a Lwo-year masLers program
LhaL wlll Leach Lhe necessary compuLer skllls.
1he record demonsLraLes LhaL slnce reLurnlng Lo Mlaml ln Lhe fall of 1993, Lhe archlLecL has been very dedlcaLed Lo Lhe
chlldren. lor example, Lhe archlLecL sLarLed and led one of Lhe chlldren's 8rownle Lroop, coached one of Lhe chlldren's
soccer Leam, regularly volunLeered aL Lhe chlldren's school, and Lakes Lhe chlldren Lo docLor and denLlsL appolnLmenLs.
AL Lrlal, Lhe guardlan ad llLem's reporL was lnLroduced lnLo evldence, and he also LesLlfled aL Lrlal. ln hls reporL, Lhe
guardlan ad llLem recommended LhaL Lhe aLLorney be deslgnaLed Lhe prlmary resldenLlal parenL and LhaL Lhe archlLecL
be granLed very llberal and frequenL access Lo Lhe chlldren. 1he reporL sLaLes LhaL Lhe archlLecL ls "warmer" and
"phenomenal" wlLh Lhe chlldren, and LhaL Lhe aLLorney "Lends Lo be somewhaL cooler by naLure, buL conslsLenLly spends
Llme wlLh Lhe chlldren and makes a polnL ouL of dolng Lhlngs wlLh Lhem on weekends and when [Lhe aLLorney] ls
avallable evenlngs." 1he guardlan ad llLem also found LhaL slnce Lhe parLles have been llvlng ln Mlaml, Lhe archlLecL "has
been Lhe domlnanL careLaker durlng Lhe day, and [Lhe aLLorney] on weekends, alLhough boLh plLch ln as needed." 1he
guardlan ad llLem LesLlfled LhaL he looked aL Lhree "deLermlnaLlve facLors" ln recommendlng LhaL Lhe aLLorney be named
Lhe prlmary resldenLlal parenL. llrsL, Lhe aLLorney has been more economlcally sLable LhroughouL Lhe marrlage. Second,
Lhe aLLorney has been "Lhe more consLanL facLor LhroughouL Lhe enLlre relaLlonshlp. 1here have been Llmes ln Lhe
chlldren's llfe when [Lhe archlLecL] has been, for whaLever reasons, away from Lhe home for subsLanLlal perlods of Llme
and [Lhe aLLorney] has been Lhe domlnanL lnfluence." 1hlrd, Lhe aLLorney "conLrols [anger] beLLer around Lhe klds."
lsabel SlngleLon, a nelghbor and famlly frlend, LesLlfled LhaL Lhe archlLecL pays aLLenLlon Lo deLall, ls very goal-orlenLed,
and very carlng. She also sLaLed LhaL Lhe aLLorney ls lnvolved ln Lhe chlldren's acLlvlLles, plays wlLh Lhe chlldren, Lakes
Lhem Lo Lhe movles, Lhe beach, and Lhe zoo, and brlngs ouL Lhelr self-expresslon. lurLher, she LesLlfled LhaL Lhe aLLorney
ls usually avallable on weekends and LhaL Lhe aLLorney's work has noL lnLerfered wlLh Lhe ablllLy Lo be a good parenL.
[ 740 So.2d 1136 ]

Laura MlrablLo, anoLher nelghbor and famlly frlend, LesLlfled LhaL Lhe archlLecL has a very close relaLlonshlp wlLh Lhe
chlldren, coaches Lhe soccer Leam, plcks Lhe chlldren up from school, coordlnaLes Lhe chlldren's play daLes, and
parLlclpaLes ln school acLlvlLles. Cn Lhe oLher hand, she LesLlfled LhaL Lhe aLLorney ls Lhe one who coordlnaLes Lhe
sleepovers, and LhaL Lhe aLLorney ls aL home on Lhe weekends and ln Lhe evenlngs.
kelLh Chasln, who coached ln Lhe same soccer club as Lhe archlLecL, LesLlfled LhaL Lhe archlLecL lnLeracLs wlLh Lhe
chlldren well and ls a good coach. Pe also sLaLed LhaL he has never meL Lhe aLLorney.
!oan Pamel, Lhe moLher of one of Lhe chlldren's besL frlend, LesLlfled LhaL Lhe archlLecL geLs Lo Lhe chlldren's school
funcLlons early and vldeoLapes Lhe chlldren. Cn Lhe oLher hand, she sLaLed LhaL she once saw Lhe aLLorney arrlve laLe
and read law books durlng Lhe performance. lurLher, Lhe archlLecL ls Lhe one who usually plcks up Lhe chlldren from her
house, Lhe aLLorney has only plcked up Lhe chlldren approxlmaLely Lhree Llmes ln Lhe lasL four years. She LesLlfled LhaL
Lhe archlLecL ls one of Lhe few parenLs who sLays aL parLles LhaL Lhe chlldren aLLend. Moreover, Lhe archlLecL ls Lhe one
who leads Lhe 8rownle Lroop, and aL one meeLlng, one of Lhe parLles' chlldren sLaLed LhaL Lhe aLLorney ls never home
and does noL read Lhe 8rownle's paper. lurLher, she descrlbed Lhe archlLecL as a "devoLed" parenL. llnally, she sLaLed
LhaL all Lhe chlldren ln Lhe 8rownle Lroop, lncludlng Lhe parLles' chlldren, "adore" Lhe archlLecL.
uulce del CasLlllo, one of Lhe chlldren's former pre-school Leachers, LesLlfled LhaL Lhe archlLecL consLanLly volunLeered aL
Lhe school. lor example, Lhe archlLecL made repalrs Lo Lhe classroom, aLLended fleld Lrlps, and parLlclpaLed ln cooklng
and arL acLlvlLles. Whereas, Lhe aLLorney's lnvolvemenL was llmlLed Lo dropplng Lhe chlldren off aL school elghL Lo Len
Llmes durlng Lhe school year.
Lynn urlLLel, a school counselor, LesLlfled LhaL Lhe archlLecL lnvolved Lhe chlldren ln Lhe school's dlvorce group. lurLher,
when she senL home quesLlonnalres, only Lhe archlLecL's quesLlonnalre was reLurned. llnally, she sLaLed LhaL Lhe
archlLecL volunLeered for Lhe second grade self-esLeem program.
uavld Parper, a fellow parenL and sporLs coach, also LesLlfled. Pe sLaLed LhaL Lhe archlLecL ls a good parenL, a good
careLaker, paLlenL wlLh Lhe chlldren, and lnvolved ln Lhe chlldren's dally acLlvlLles. Pe also LesLlfled LhaL Lhe aLLorney was
lnvolved ln Lhe parenL-chlld soccer games, even Lhough Lhe games were played ln Lhe early afLernoon. 1he aLLorney also
aLLended Lhe SaLurday games and Lhe parenL-chlld program. lurLher, he sLaLed LhaL Lhe archlLecL was Lhe careLaker on a
dally basls, buL LhaL Lhe aLLorney was avallable and LhaL Lhe chlldren responded well Lo Lhe aLLorney.
llnally, Carol Lumpkln, who ls a nelghbor and famlly frlend, LesLlfled LhaL boLh parenLs are lovlng and carlng parenLs, and
LhaL boLh have a loL Lo offer Lhe chlldren.
AfLer evaluaLlng Lhe relevanL sLaLuLory facLors of secLlon 61.13(3), llorlda SLaLuLes (1993), Lhe Lrlal courL awarded
prlmary resldenLlal cusLody of Lhe chlldren Lo Lhe aLLorney, wlLh frequenL and conLlnulng conLacL wlLh Lhe archlLecL. 1he
flnal order also provldes LhaL "for one year wlLhln flve years of enLry of Lhls llnal !udgmenL buL noL sooner Lhan 2 years
of enLry hereln of, prlmary physlcal resldence of Lhe chlldren shall be wlLh Lhe [archlLecL]." 1he Lrlal courL denled Lhe
archlLecL's requesL for permanenL allmony, buL granLed Lhe archlLecL four monLhs of rehablllLaLlve allmony aL $2,000 per
monLh. 1he Lrlal courL also dlsLrlbuLed Lhe parLles' marlLal asseLs and debLs. llnally, Lhe archlLecL was awarded $10,000
ln aLLorney's fees. 1he archlLecL appeals from Lhls flnal [udgmenL.
1he archlLecL conLends LhaL Lhe Lrlal courL abused lLs dlscreLlon by granLlng prlmary resldenLlal cusLody of Lhe chlldren Lo
Lhe aLLorney. We agree.
[ 740 So.2d 1137 ]

A Lrlal courL's deLermlnaLlon of cusLody "ls sub[ecL Lo an abuse of dlscreLlon sLandard of revlew." Sulllvan v. Sulllvan,668
So.2d 329, 330 (lla. 4Lh uCA 1996)(clLlng Canakarls v. Canakarls,382 So.2d 1197 (lla.1980)). An appellaLe courL musL
afflrm lf Lhere ls subsLanLlal compeLenL evldence Lo supporL Lhe Lrlal courL's flndlng LhaL Lhe cusLody award was ln Lhe
besL lnLeresLs of Lhe chlld. See uuchesneau v. uuchesneau,692 So.2d 203, 206 (lla. 3Lh uCA 1997), Cherradl v.
Lavole,662 So.2d 731, 733 (lla. 4Lh uCA 1993), Cardner v. Cardner,343 So.2d 339, 340 (lla. 4Lh uCA 1989), Culrlno v.
Culrlno,439 So.2d 1183 (lla. 3d uCA 1984).
A Lrlal courL's declslon as Lo whlch parenL should be awarded prlmary resldenLlal cusLody of Lhe chlldren should aLLempL
Lo preserve and conLlnue Lhe careLaklng roles LhaL Lhe parLles had esLabllshed. Such a conLlnuaLlon would clearly be ln
Lhe besL lnLeresLs of Lhe chlldren. 1he Amerlcan Law lnsLlLuLe has addressed Lhls lssue ln lLs lllusLraLlons:
Cary and nancy have Lhree chlldren, ages 12, 9, and 3. Cary ls a hlgh-school graduaLe and nancy, a veLerlnarlan. lor Lhe
flrsL four years afLer Lhelr flrsL chlld was born, Cary worked ouLslde Lhe home and nancy was Lhe prlmary careLaker of
Lhe chlldren. When Lhelr second chlld was one year old, Lhey declded Lo swlLch roles because of nancy's greaLer earnlng
capaclLy. AfLer elghL years of Lhls arrangemenL, Cary and nancy separaLed. Lach wanLs prlmary cusLodlal responslblllLy
for Lhe chlldren. nancy argues LhaL slnce she gave up belng Lhe prlmary careLaker for Lhe beneflL of Lhe famlly and noL
because of personal preference, Cary should noL be favored ... based on hls larger careLaklng role.
nancy's falrness argumenL ls lrrelevanL Lo how cusLodlal responslblllLy should be allocaLed.... 1he courL should allocaLe
cusLodlal responslblllLy based on Lhe parenLs' pasL careLaklng roles.
rlnclples of Lhe Law of lamlly ulssoluLlon: Analysls and 8ecommendaLlons, 1enLaLlve urafL no. 3, arL l, Amerlcan Law
lnsLlLuLe, 2.09, aL 121 (1998).
ln Lhe lnsLanL case, Lhe Lrlal courL's award of prlmary resldenLlal cusLody of Lhe chlldren Lo Lhe aLLorney has Lhe effecL of
noL conLlnulng Lhe careLaklng roles LhaL Lhe parLles had esLabllshed. lL ls clear from Lhe record LhaL lL ls Lhe archlLecL who
ls avallable Lo Lhe chlldren afLer school, Lakes Lhe chlldren Lo Lhe docLor and denLlsL appolnLmenLs, and acLlvely
parLlclpaLes ln Lhe chlldren's school and afLer-school acLlvlLles.
Moreover, Lhe guardlan ad llLem's LesLlmony lndlcaLes LhaL one of Lhe "deLermlnaLlve facLors" ln recommendlng LhaL Lhe
aLLorney be deslgnaLed Lhe prlmary resldenLlal parenL ls LhaL Lhe aLLorney has been more economlcally sLable
LhroughouL Lhe marrlage. ln llghL of Lhe chlld supporL guldellnes, a parenL's flnanclal resources (or lack of) should noL be
a "deLermlnaLlve facLor" ln decldlng whlch parenL should be Lhe prlmary resldenLlal parenL. rlnclples of Lhe Law of
lamlly ulssoluLlon: Analysls and 8ecommendaLlons, 1enLaLlve urafL no. 3, arL l, Amerlcan Law lnsLlLuLe, 2.14, aL 230
(1998). A parenL's flnanclal resources ls only one facLor LhaL musL be balanced wlLh Lhe remalnlng sLaLuLory facLors
ouLllned ln secLlon 61.13(3), llorlda SLaLuLes (1993). When balanclng Lhe sLaLuLory facLors, Lhe facL LhaL one parenL ls
Lhe prlmary careLaker should always ouLwelgh Lhe facL LhaL Lhe oLher parenL ls more flnanclally sLable. 1he record ln Lhe
lnsLanL case clearly lndlcaLes LhaL Lhe archlLecL, alLhough noL as flnanclally forLunaLe as Lhe aLLorney, has always, as Lhe
prlmary careLaker, provlded Lhe chlldren wlLh food, cloLhlng, shelLer, and medlcal aLLenLlon. 1he record clearly lndlcaLes
LhaL Lhe archlLecL, wlLh an adequaLe amounL of chlld supporL, would conLlnue Lo provlde for Lhe chlldren.
Moreover, Lhe guardlan ad llLem's recommendaLlon was also based on Lhe facL LhaL archlLecL has been "away from Lhe
[ 740 So.2d 1138 ]

home for subsLanLlal perlods of Llme and [Lhe aLLorney] has been Lhe domlnanL lnfluence." under Lhe clrcumsLances of
Lhls case, Lhe facL LhaL archlLecL was away from Lhe home prlor Lo Lhe separaLlon should noL be a "deLermlnaLlve facLor"
where Lhe archlLecL has conLlnually been Lhe prlmary careLaker slnce Lhe fall of 1993.
1herefore, afLer revlewlng Lhe record, lncludlng Lhe LesLlmony of Lhe parLles and oLher wlLnesses, we flnd LhaL Lhe Lrlal
courL abused lLs dlscreLlon by awardlng prlmary resldenLlal cusLody of Lhe mlnor chlldren Lo Lhe aLLorney. Powever, on
remand, Lhe Lrlal courL should granL Lhe aLLorney llberal and frequenL access Lo Lhe chlldren.
llnally, Lhe award of allmony Lo Lhe archlLecL was lnadequaLe ln llghL of Lhe rehablllLaLlve plan presenLed by Lhe
archlLecL and Lhe llfesLyle esLabllshed durlng Lhe parLles' marrlage, Canakarls v. Canakarls,382 So.2d 1197 (lla.1980), Lhe
dlsLrlbuLlon of Lhe parLles' asseLs and llablllLles was lnequlLable, and Lhe award of aLLorney's fees Lo Lhe archlLecL was
lnsufflclenL. Cn remand, Lhe Lrlal courL should revlslL Lhese lssues along wlLh Lhe lssue of chlld supporL, especlally ln llghL
of Lhls CourL's dlsposlLlon as Lo prlmary resldenLlal cusLody. 1herefore, we reverse Lhese awards and remand for furLher
proceedlngs, lncludlng evldenLlary hearlngs, lf necessary.
8eversed and remanded.
8efore SCPWA81Z, C.!., and nLS8l11, !C8CLnSCn, CCL, LLv?, CL8S1Ln, CCuL8lCP, C8LLn, lLL1CPL8, and
SC8CnuC, !!.*
Cn 8LPLA8lnC Ln 8AnC
C8LLn, !.
upon our rehearlng en banc of Lhls cause, we wlLhdraw Lhe prlor panel oplnlon lssued on !une 24, 1998 and subsLlLuLe
Lhe followlng oplnlon ln lLs sLead.
1he former husband/faLher (8oberL ?oung) appeals from Lhe flnal [udgmenL of dlssoluLlon of marrlage. We afflrm Lhe
Lrlal courL's declslon deslgnaLlng Lhe former wlfe/moLher (Allce PecLor) as Lhe prlmary cusLodlal parenL of Lhe Lwo mlnor
chlldren buL reverse and remand Lhe courL's deLermlnaLlon as Lo rehablllLaLlve allmony, dlsLrlbuLlon of Lhe parLles' asseLs
and llablllLles and aLLorney's fees for furLher proceedlngs.
1he faLher's maln conLenLlon on Lhls appeal ls LhaL Lhe Lrlal courL abused lLs dlscreLlon when lL awarded cusLody of Lhe
mlnor chlldren Lo Lhe moLher. We do noL agree. AfLer laborlously revlewlng all of Lhe record evldence ln Lhls case, we
conclude LhaL Lhere was subsLanLlal compeLenL evldence Lo supporL Lhe Lrlal courL's dlscreLlonary call ln Lhls regard.
1hus, Lhere ls no basls for us Lo overLurn Lhe lower courL's declslon.
As we see lL, Lhe chlld cusLody lssue ln Lhls case, wlLh all lLs aLLendanL noLorleLy, cenLers only around our sLandard of
revlew as an appellaLe courL. 1he slmple lssue for our conslderaLlon ls wheLher Lhe Lrlal courL abused lLs dlscreLlon when
lL deLermlned LhaL Lhe besL lnLeresLs of Lhe Lwo mlnor chlldren dlcLaLed LhaL Lhelr moLher be deslgnaLed Lhelr prlmary
cusLodlal parenL. See Canakarls v. Canakarls,382 So.2d 1197, 1203 (lla.1980), CranL v. CorblLL,93 So.2d 23, 28 (lla.1937),
Sulllvan v. Sulllvan,668 So.2d 329, 329-30 (lla. 4Lh uCA 1996). lf Lhere ls subsLanLlal compeLenL evldence Lo supporL Lhe
Lrlal courL's deLermlnaLlon, lL ls flrmly esLabllshed LhaL a Lrlal courL cannoL be deemed Lo have abused lLs dlscreLlon and
lLs rullng musL be lefL undlsLurbed on appeal. See Canakarls, 382 So.2d aL 1203, ulnkel v. ulnkel,322 So.2d 22, 24
(lla.1973), 8ader v. 8ader,639 So.2d 122, 124 (lla. 2d uCA 1994) (en banc), !ones v. !ones,633 So.2d 1096, 1099 (lla. 3Lh
uCA 1994), 8oss v. 8oss,321 So.2d 443, 444 (lla. 3d uCA 1973). AppellaLe courLs are never permlLLed Lo reLry a courL's
deLermlnaLlon ln Lhls regard de novo or rewelgh Lhe evldence.
[ 740 So.2d 1139 ]

See 8elnharL v. 8elnharL,291 So.2d 103, 103 (lla. 1sL uCA 1974) (sLaLlng "[l]L may well be LhaL were we permlLLed Lo hear
Lhe case de novo we mlghL enLer a dlfferenL flnal [udgmenL. Powever, such ls noL our prerogaLlve."), see also Mlller v.
Mlller,371 So.2d 363, 366 (lla. 4Lh uCA 1979) (holdlng LhaL appellaLe courL may noL subsLlLuLe lLs [udgmenL for LhaL of
Lrlal [udge).
AL Lhe ouLseL, lL ls lmporLanL Lo emphaslze LhaL boLh Lhe moLher and faLher are very lovlng and capable parenLs. nobody
dlspuLes Lhls facL, whlch alone made Lhe Lrlal courL's deLermlnaLlon all Lhe more dlfflculL. WhaL Lhen LllLed Lhe scales ln
favor of awardlng cusLody Lo Lhe moLher? 1he faLher suggesLs LhaL lL was gender blas. 1he record evldence, however,
slmply does noL supporL Lhls suggesLlon.
l
AL Lhe Llme of Lhelr marrlage ln 1982, boLh Lhe faLher and moLher were successful professlonals ln new Mexlco. Pe was
an archlLecLural deslgner wlLh hls own home deslgn flrm as well as an enLrepreneur wlLh a publlshlng company. She was
an aLLorney ln prlvaLe pracLlce aL her own flrm. 1helr marrlage was a second for boLh. Pe had no chlldren from hls flrsL
marrlage. She had cusLody of her Lwo mlnor chlldren (now grown) from her flrsL marrlage whlch she successfully reared
whlle slmulLaneously [uggllng Lhe demands of her law pracLlce.1
PecLor and ?oung became Lhe parenLs of Lwo daughLers born ln 1983 and 1988. AfLer Lhe blrLh of Lhelr chlldren, boLh
parenLs conLlnued Lo work ouLslde of Lhe home and pursued Lhelr respecLlve professlonal endeavors wlLh Lhe asslsLance
of a llve-ln nanny, au palr, or housekeeper. As Lyplcal worklng parenLs, Lhey would boLh arrlve home beLween Lhe hours
of 3:30 and 6:00 each evenlng. 8oLh conLrlbuLed Lo and shared ln Lhe household expendlLures aL all Llmes.
SomeLlme ln laLe 1987, Lhe faLher's buslness venLures began Lo suffer cerLaln flnanclal reversals and Lhe moLher became
bored wlLh her pracLlce ln new Mexlco. 8oLh parLles agreed Lo relocaLe Lo Mlaml. AlLhough Lhere ls a compleLe confllcL
ln Lhe record beLween Lhe parLles as Lo who broached Lhe sub[ecL of Lhe couple's relocaLlon Lo Mlaml and Lhe
clrcumsLances under whlch Lhey would relocaLe ln Lerms of Lhelr respecLlve careers, lL ls slgnlflcanL LhaL nelLher of Lhese
parLles ever LesLlfled LhaL Lhey ever agreed or expecLed Lhe moLher Lo pursue her legal career whlle Lhe faLher remalned
aL home as Lhe full-Llme careglver Lo Lhelr mlnor chlldren. 1o Lhe conLrary, Lhe faLher acLlvely pursued [ob leads ln Lhe
Mlaml area prlor Lo Lhe couple's relocaLlon.
ln !une 1989, Lhe moLher and her Lwo mlnor daughLers arrlved ln Mlaml flrsL. uurlng LhaL summer, she sLudled for and
Look Lhe llorlda 8ar exam and landed a poslLlon wlLh a mld-slzed law flrm. 1he faLher sLayed behlnd ln new Mexlco unLll
CcLober 1989 ln order Lo compleLe Lhe consLrucLlon of a new house and Lo remodel Lhe couple's new Mexlco home ln
order Lo enhance lLs resale poLenLlal.
AfLer Lhe faLher's move Lo Mlaml ln Lhe fall of 1989, he sLudled for and passed Lhe llorlda conLracLor's examlnaLlon.
1hereafLer, durlng Lhe sprlng and summer of 1990, Lhe faLher spenL hls Llme repalrlng Lhe couple's flrsL marlLal resldence
ln Mlaml. 1hereafLer, he renovaLed Lhe home whlch ulLlmaLely became Lhe couple's second marlLal resldence. lL ls
slgnlflcanL Lo polnL ouL aL Lhls [uncLure, LhaL lL ls undlspuLed LhaL from Lhe Llme Lhe mlnor chlldren were broughL Lo
Mlaml ln 1989 unLll Lhe fall of 1993, Lhe needs of Lhe mlnor chlldren were aLLended Lo by a llve-ln housekeeper when
Lhey were noL ln school durlng Lhe day and by Lhe moLher upon her arrlval from work ln Lhe evenlngs.
AfLer Lhe faLher's renovaLlons Lo Lhe couple's second Mlaml resldence were compleLed
[ 740 So.2d 1160 ]

and Lhe famlly moved ln, Lhe moLher LesLlfled LhaL she began Lo have serlous dlscusslons (whlch evenLually escalaLed
lnLo argumenLs) abouL Lhe faLher's need Lo flnd galnful employmenL. AlLhough Lhe moLher was earnlng a very decenL
lncome as an aLLorney aL Lhe Llme, lL was undlspuLed LhaL Lhls famlly was operaLlng wlLh a negaLlve cash flow.
8aLher Lhan pursue galnful employmenL Lo flnanclally asslsL Lhe household and hls mlnor chlldren, Lhe faLher Lurned hls
aLLenLlons elsewhere. uurlng Lhe remalnder of 1990 Lhrough 1993, Lhe faLher lefL Lhe sLaLe and was frequenLly away
from Lhe moLher and mlnor chlldren for monLhs aL a Llme. uurlng Lhls Llme, he reLurned Lo new Mexlco Lo aLLend Lo
llngerlng maLLers lnvolvlng hls prlor buslnesses Lhere and Lo make preparaLlons for an upcomlng Lreasure hunL. Pe also
vlslLed hls slck broLher ln Arkansas and laLer handled hls broLher's esLaLe maLLers upon hls broLher's demlse. uurlng Lhls
Llme, Lhe faLher spenL approxlmaLely fourLeen monLhs away from hls famlly pursulng burled gold ln new Mexlco on a
Lreasure hunL. 1he mlnor chlldren were conLlnuously belng cared for by Lhe housekeeper/babyslLLer durlng Lhe day and
Lhe moLher afLer work. 1he faLher saw hls famlly durlng Lhls fourLeen monLh perlod once every flve weeks and accordlng
Lo Lhe moLher, only aL her lnslsLence and pursuanL Lo her arrangemenLs for such famlly reunlons.
When Lhe faLher flnally reLurned Lo SouLh llorlda, ln Lhe fall of 1993, Lhe moLher had accepLed a parLnershlp poslLlon
wlLh a large llorlda law flrm aL a salary of approxlmaLely $300,000 annually. Lven wlLh Lhe moLher's salary lncrease, Lhe
famlly remalned sLeep ln debL. AL LhaL Llme, Lhe couple no longer had a llve-ln nanny or babyslLLer for Lhe chlldren. 1he
chlldren were ln a publlc school full-Llme beLween Lhe hours of 8:30 a.m. and 2:00-3:00 p.m. 1he moLher had employed
a housekeeper ("PaLLle") who came Lo Lhe house each weekday beLween Lhe hours of noon and 8:00 p.m. Lo clean,
plckup and babyslL Lhe chlldren afLer school. 1he moLher's Llme wlLh Lhe chlldren durlng Lhe weekdays conslsLed of her
awakenlng, dresslng, and havlng breakfasL wlLh Lhem prlor Lo LransporLlng Lhem Lo school, and spendlng Lhe early
evenlng hours wlLh Lhem prlor Lo Lhelr bedLlme. 1he moLher engaged ln acLlvlLles wlLh Lhe chlldren on a full-Llme basls
on Lhe weekends. When Lhe chlldren became lll or dlsLressed durlng Lhe mlddle of Lhe nlghL, Lhe moLher was always Lhe
parenL Lhey looked Lo for asslsLance or solace.2
ApproxlmaLely one monLh afLer Lhe faLher's reLurn Lo Lhe household ln 1993, Lhe moLher asked Lhe faLher for a dlvorce
because of hls conLlnued refusal Lo seek galnful employmenL and due Lo hls exLramarlLal affalr ln new Mexlco. lL musL
be reemphaslzed LhaL aL no Llme dld Lhe moLher and faLher have any muLually expressed or LaclL agreemenL for Lhe
faLher Lo remaln unemployed. 1he faLher candldly conceded as much aL Lrlal.3 ConsequenLly, Lhls case slmply dld noL
lnvolve Lhe Lyplcal scenarlo where Lwo spouses, by muLual agreemenL, agreed for one Lo remaln aL home Lo care for Lhe
chlldren and Lhe oLher spouse Lo work ouLslde of Lhe home.
[ 740 So.2d 1161 ]

Cnce Lhe moLher announced Lo Lhe faLher LhaL she wanLed a dlvorce, Lhe faLher began Lo spend less of hls Llme away
from Mlaml. AlLhough he sLeadfasLly refused Lo make any efforLs Lo obLaln employmenL, he dld become more lnvolved
ln Lhe acLlvlLles of hls Lwo daughLers, who by LhaL Llme, were 8 and 3. Slnce boLh glrls were ln school full-Llme aL Lhls
Llme, Lhe faLher's lnvolvemenL wlLh Lhe glrls' acLlvlLles occurred prlmarlly Mondays Lhrough lrldays beLween Lhe hours
of 3:00 p.m. and 6:30 p.m., prlor Lo Lhe moLher's arrlval from work. upon Lhe moLher's arrlval aL Lhe home, Lhe faLher
generally absenLed hlmself.4
1he faLher neverLheless malnLalned LhaL he was Lhe "prlmary careLaker" or "Mr. Mom" of Lhese Lwo chlldren ln Lhe
Lhree years precedlng Lhls dlssoluLlon proceedlng. 1he Lrlal courL vlewed Lhls conLenLlon wlLh some degree of skepLlclsm
as lL was enLlLled.3 1he Lrlal courL's skepLlclsm or dlsbellef was noL aL all unreasonable, glven Lhe faLher's admlsslon LhaL
Lhe nanny, PaLLle, had Laken care of Lhese chlldren ln large parL durlng Lhe afLernoon hours unLll Lhelr moLher's arrlval aL
home. 1he faLher's concesslon ls whaL prompLed Lhe courL Lo ulLlmaLely make lnqulry as Lo why Lhe faLher dld noL seek
employmenL or alLernaLlvely, why Lhere was a need for a full-Llme nanny:
* * * *
[laLher's aLLorney]: Who plcks Lhe klds up?
[laLher]: LlLher PaLLle or l. 1yplcally, lL's me. lf l am Lled up, wheLher lL's a meeLlng or whaLever, or lf l go somewhere llke
your offlce, way up ln norLh Mlaml 8each, and l don'L geL back ln Llme and l LhoughL l would, l can call PaLLle and say,
"PaLLle, please plck up Lhe chlldren." She does. She plcks Lhem up frequenLly.
[1he CourL]: ls PaLLle Lhere flve days a week?
[laLher]: ?es slr. She comes aL noon every day. She cleans Lhe house ln Lhe afLernoons. She prepares Lhe dlnners. 1he
klds eaL. We eaL. l eaL wlLh Lhe chlldren every day Lyplcally aL 6:30. She cleans up afLer LhaL.
She'll draw a baLh for Avery and she leaves aL elghL o'clock ln Lhe evenlng flve days a week.
[1he CourL]: Maybe l'm mlsslng someLhlng. Why don'L you geL a [ob.
[laLher]: Well, because my background ls archlLecLure. 1haL's my degree, buL when l graduaLed, Lhey dld noL have
compuLers. 1oday, lL's compuLer domlnaLed and l'm compuLer llllLeraLe.
l, ln Lalklng Lo Larry loreman, who was courL appolnLed as Lhe career consulLanL, anLlclpaLed LhaL l should go Lo
graduaLe
[ 740 So.2d 1162 ]

school Lo acqulre Lhese skllls LhaL l'm lacklng rlghL now.
l've gone on lnLervlews. 1hey llke me. 1hey llke whaL l have Lo offer buL Lhelr offlces are baslcally all compuLerlzed.
revlously, because of Lhe number of hours Ms. PecLor worked, l fllled ln. Ms. PecLor has a secreLary LhaL handles her
whole llfe aL Lhe offlce and ln a sense l was Lhe secreLary LhaL handled her whole llfe aL home and Look care of Lhe
chlldren.
[1he CourL]: 8uL you've goL a nanny dolng LhaL.
[laLher]: no slr, l don'L belleve you can buy parenLs. nannles can plck up. 1hey can drop off.
[1he CourL]: Why [slc] do you need Lhe nanny for, lf you're Lhere dolng lL?
[laLher]: She cooks. She cleans. l could do a loL of LhaL. 1yplcally, people LhaL have lncomes of over a quarLer of a mllllon
dollars or $300,000 can afford Lhe luxury of havlng help, hlred help.
l am noL Lhe klnd of person LhaL slLs around and waLches soap operas. l Lry Lo do meanlngful, worLhwhlle Lhlngs.
[1he CourL]: Co ahead, counsel.
* * * *
ConLrary Lo Lhe faLher's suggesLlon on appeal, Lhls lnqulry by Lhe courL ls noL evldence of gender blas. Clven Lhe
undlspuLed large flnanclal lndebLedness of Lhls couple, Lhe Lrlal courL's lnqulry abouL Lhe need Lo employ a full-Llme
nanny was boLh loglcal and pracLlcal under Lhese clrcumsLances and cerLalnly could have also been approprlaLely posed
Lo Lhe moLher lf she had been recalclLranL abouL seeklng galnful employmenL Lo asslsL Lhe famlly's flnanclal slLuaLlon.6
ll
AparL from Lhls evldence, Lhe courL also had Lhe reporL and recommendaLlons of Lhe guardlan ad llLem upon whlch Lo
rely. ln recommendlng LhaL Lhe moLher be named Lhe prlmary cusLodlal parenL, Lhe guardlan ad llLem clLed Lhree
facLors, all of whlch we flnd are supporLed by compeLenL subsLanLlal evldence ln Lhe record. llrsL of all, Lhe guardlan
noLed LhaL Lhe moLher had been Lhe more economlcally sLable of Lhe Lwo parenLs LhroughouL Lhe marrlage. We do noL
belleve LhaL Lhe guardlan gave Lhe moLher Lhe edge slmply because she earned a large salary. We belleve, LhaL whaL Lhe
guardlan was aLLempLlng Lo convey was LhaL Lhe moLher had shown a procllvlLy Lo remaln sLeadlly employed, unllke Lhe
faLher who unllaLerally removed hlmself from Lhe [ob markeL, alLhough he was employable and Lhe famlly needed Lhe
addlLlonal lncome. 1he Lrlal courL concluded LhaL Lhe faLher was "where he ls largely because of hls own cholce." 1he
Lrlal courL was obvlously noL obllvlous Lo Lhe facL LhaL Lhe faLher was also a llorlda llcensed conLracLor who had bullL
homes ln new Mexlco and renovaLed boLh of Lhe parLles' llorlda marlLal resldences. Clven Lhe faLher's skllls and
experlence, Lhe Lrlal courL was cerLalnly enLlLled Lo reasonably conclude LhaL Lhe faLher was employable upon hls reLurn
Lo Mlaml ln 1993one year afLer Purrlcane Andrew llLerally desLroyed Lhousands of resldences and commerclal
esLabllshmenLs ln SouLh uade CounLy and bulldlng conLracLors were ln heavy demand. Clven a cholce beLween Lhe
moLher, who malnLalned consLanL sLeady employmenL LhroughouL Lhe marrlage Lo supporL Lhe chlldren (regardless of
Lhe amounL of her lncome), and Lhe
[ 740 So.2d 1163 ]

faLher who unllaLerally and sLeadfasLly refused Lo do Lhe same, Lhe Lrlal courL's deslgnaLlon of Lhe moLher as cusLodlal
parenL cannoL be deemed an abuse of dlscreLlon.7See 61.13(3)(c), lla. SLaL. (1993).
1he second facLor relled upon by Lhe guardlan ad llLem ln recommendlng LhaL Lhe moLher be declared Lhe prlmary
cusLodlal parenL was Lhe facL LhaL Lhe moLher had been a consLanL facLor and domlnanL lnfluence ln Lhe chlldren's llves
and Lhe faLher had noL. 1he guardlan ad llLem observed:
1here have been Llmes ln Lhe chlldren's llfe [slc] when 8ob has been, for whaLever reasons, away from Lhe home for
subsLanLlal perlods of Llme and Allce has been Lhe domlnanL lnfluence.
More recenLly, whlle she has been worklng, he has been avallable aL home more hours of Lhe day Lhan she has been, buL
over a conLlnuum of Llme, l belleve LhaL her presence has been a more sLeady presence ln Lhe sense of avallable almosL
Lhe same Llme for Lhe klds LhroughouL Lhe relaLlonshlp, whereas 8ob has been lnLensely absenL and lnLensely presenL.
ln lLs deLermlnaLlon as Lo Lhe besL lnLeresLs of Lhe mlnor chlldren, Lhe Lrlal courL obvlously deemed lL more lmporLanL Lo
assess Lhe chlldren's Llme spenL wlLh each of Lhe parenLs LhroughouL Lhe course of Lhe marrlage and noL merely focus on
Lhe years lmmedlaLely precedlng Lhe announcemenL of Lhe dlssoluLlon acLlon. 1haL ls, Lhe Lrlal courL, ln an efforL Lo
malnLaln conLlnulLy, could have leglLlmaLely deLermlned LhaL Lhe chlldren's besL lnLeresLs dlcLaLe LhaL Lhey remaln wlLh
Lhe parenL who had conLlnuously been Lhere Lo care for Lhelr needs LhroughouL Lhelr young llves raLher Lhan Lhe parenL
who had devoLed a subsLanLlal amounL of Llme wlLh Lhem perhaps only when lL was convenlenL and/or opporLunlsLlc Lo
do so. See 61.13(3)(d), lla. SLaL. 1he record evldence clearly supporLs Lhe Lrlal courL's concluslon LhaL Lhe moLher had
been Lhe consLanL parenL LhroughouL Lhe chlldren's llves. 1hus, Lhere was no basls for Lhe panel Lo overLurn Lhe Lrlal
courL's flndlng ln Lhls regard.
1he lasL facLor clLed by Lhe guardlan ad llLem, whlch LllLed Lhe scale ln favor of Lhe moLher, was Lhe moLher's superlor
ablllLy Lo conLrol her anger around Lhe chlldren. 1he guardlan ad llLem LesLlfled LhaL he personally wlLnessed one of Lhe
faLher's ouLbursLs of anger ln Lhe presence of Lhe chlldren. lor LhaL reason, Lhe guardlan, who ls also a reLlred clrculL
courL [udge, wenL so far as Lo recommend LhaL Lhe faLher recelve anger conLrol counsellng.
Clven Lhls subsLanLlal compeLenL evldence ln Lhe record, we cannoL conclude LhaL Lhe Lrlal courL abused lLs dlscreLlon
when lL awarded cusLody of Lhe mlnor chlldren Lo Lhelr moLher. nor can we conclude LhaL Lhe courL's deLermlnaLlon was
lmpermlsslbly lnfluenced by gender blas agalnsL Lhe faLher.
CusLody deLermlnaLlons are perhaps Lhe mosL senslLlve and dellcaLe declslons LhaL famlly courL [udges make. We
[ 740 So.2d 1164 ]

recognlze LhaL aL Llmes, lL can be a very dlfflculL and agonlzlng call for Lhe Lrlal [udge Lo make when boLh parenLs are as
lovlng and carlng as Lhe moLher and faLher are ln Lhls case. neverLheless, once Lhe Lrlal courL makes Lhls declslon and Lhe
declslon ls supporLed by subsLanLlal compeLenL evldence, we recognlze LhaL Lhe Lrlal courL's deLermlnaLlon should noL
be llghLly second-guessed and overLurned by an appellaLe courL merely revlewlng Lhe coldnaked record. lndeed, Lhe Lrlal
courL has Lhe unlque advanLage of meeLlng boLh parenLs prlor Lo maklng lLs declslon. 1hus, Lhe Lrlal courL, unllke an
appellaLe courL, ls enLlLled Lo rely, noL only upon Lhe record evldence presenLed, buL upon lLs menLal lmpresslons
formed abouL each of Lhe parenLs and Lhelr respecLlve parenLlng sLrengLhs and weaknesses. Moreover, Lrlal [udges
slLLlng as Lrlers of facL ln Lhese proceedlngs are noL requlred Lo shed Lhelr common sense and llfe's experlences when
Lhey don Lhelr black robes Lo preslde over Lhese proceedlngs. As long as Lhe Lrlal courL's declslon ls supporLed by
subsLanLlal compeLenL evldence and ls noL based upon legally lmpermlsslble facLors such as gender blas, lL musL be
afflrmed on appeal. lor Lhls reason, we afflrm Lhe order awardlng prlmary resldenLlal cusLody of Lhe mlnor chlldren Lo
Lhe moLher. Powever, on remand, Lhe Lrlal courL should granL Lhe faLher llberal and frequenL access Lo Lhe chlldren.
lll
llnally, we agree LhaL Lhe award of allmony Lo Lhe faLher was lnadequaLe ln llghL of hls rehablllLaLlve plan presenLed Lo
Lhe courL and Lhe llfesLyle esLabllshed durlng Lhe parLles' marrlage. Canakarls, 382 So.2d aL 1201-03. Moreover, Lhe
dlsLrlbuLlon of Lhe parLles' asseLs and llablllLles was lnequlLable and Lhe award of aLLorney's fees Lo Lhe faLher's lawyer
was lnsufflclenL. Cn remand, Lhe Lrlal courL should revlslL Lhese lssues. 1hus, we reverse Lhese awards and remand for
furLher proceedlngs, lncludlng evldenLlary hearlngs, lf necessary.
Afflrmed ln parL and reversed and remanded ln parL.
!C8CLnSCn, CCL, LLv?, CL8S1Ln, lLL1CPL8 and SC8CnuC, !!., concur.
LLv?, !udge (speclally concurrlng).
l endorse and agree wlLh Lhe ma[orlLy oplnlon. l wrlLe separaLely only Lo express my sLrongly held vlew LhaL, desplLe all
LhaL has been sald abouL Lhe perlpheral lmpllcaLlons of Lhls case, Lhe reallLy ls LhaL Lhe plvoLal lssue lnvolved ln Lhls case
can, and musL, be resolved by golng Lhrough Lhe slmple exerclse of examlnlng Lhe Lrlal courL's declslon accordlng Lo Lhe
approprlaLe sLandard of revlew LhaL Lhls CourL musL follow.
Slmply puL, Lhere ls more Lhan subsLanLlal compeLenL evldence Lo supporL Lhe Lrlal courL's declslon Lo name Lhe moLher
as Lhe prlmary resldenLlal parenL of Lhe chlldren ln Lhls case. lurLhermore, Lhe record does noL reflecL any abuse of
dlscreLlon by Lhe Lrlal courL ln reachlng LhaL declslon.
Whlle Lhere ls probably also an approprlaLe quanLum of evldence LhaL would have supporLed namlng Lhe faLher as Lhe
prlmary resldenLlal parenL, Lhe Lrlal courL, afLer hearlng and welghlng all of Lhe evldence, deLermlned LhaL lL was ln Lhe
besL lnLeresL of Lhe chlldren Lo name Lhe moLher as Lhe prlmary resldenLlal parenL.
Clearly, Lhls CourL cannoL second-guess Lhe declslon of Lhe Lrlal courL as, l respecLfully suggesL, Lhe orlglnal panel oplnlon
dld. 8aLher, as sLaLed above, Lhls CourL's funcLlon ls llmlLed solely Lo revlewlng Lhe declslon of Lhe Lrlal courL ln llghL of
Lhe approprlaLe sLandard of revlew.
1he record ln Lhls case ls repleLe wlLh "subsLanLlal compeLenL evldence" LhaL supporLs Lhe declslon of Lhe Lrlal courL.
Such evldence lncludes Lhe LesLlmony of Lhe Cuardlan Ad LlLem, Lhe moLher of Lhe chlldren, several nelghbors of Lhe
parLles, as well as Lhe faLher hlmself. 1he followlng ls a summary of varlous porLlons of Lhe
[ 740 So.2d 1163 ]

record LhaL supporL Lhe Lrlal courL's declslon:
Ira Dubitsky (Guardian Volume V. of Record, Referring to custody:
Ad Litem)("GAL") Page 23, Lines 22-25 Q: "And what was your recommendation, sir?"
and
Page 24, Lines 1-6 of A: "That the primary residential responsibilities
Transcript. for the children should be with Alice; that
Bob should have extremely liberal access to the
children, including daily contact, and that I feel
it's extremely important that the two parties
remain in close proximity to one another physically,
because I think that each of them brings
something completely different to the table, both
of which gives a tremendous amount to the
kids."

Volume V. of Record, Describing the basis for his recommendation
Page 25, Lines 14-25 and that primary residential custody be given to
Page 26, Lines 1-4 of Alice Hector, the "GAL" stated:
Transcript.

"... Number one, very clearly, she has been the
more economically stable of the two throughout
the relationship.

Number two, she has been, I think, the more
constant factor throughout the entire relationship.
There have been times in the children's
life when Bob has been, for whatever reasons,
away from the home for substantial periods of
time and Alice has been the dominant influence
... over a continuum of time, I believe that her
presence has been more steady presence in the
sense of available almost the same time for the
kids throughout the relationship, whereas Bob
has been intensely absent and intensely present."

Volume V. of Record, "... each of the parties harbors a good deal of
Page 26, Lines 15-19 of anger towards the other and what is apparent to
Transcript. me objectively is that they handle the anger
differently. Alice controls it better around the
kids."

Volume V. of Record, "When you listen to him [the former husband]
Page 32, Lines 13-16 of talk about her, she's the greatest lawyer in the
Transcript. world and each of them acknowledges that the
other is very good with the kids and so on and so
forth."

Volume V. of Record, A: "Certainly, Alice has pretty consistently
Page 37, Lines 7-13 of been available on weekends, and the beauty of
Transcript. the situation, as far as I'm concerned, has been
the existence of Hattie [the parties' housekeeper],
who has been a very stable influence and
fills a role that you have in many homes where
you've got two working parents, which is that
she takes up the slack."

Volume V. of Record, Q: "As a final question, your recommendation,
Page 39, Lines 5-15 of according to your report, is that the children
Transcript. would be best off with Ms. Hector as primary
residential parent, as the situation exists today,
obviously."

A: "Yes."

Q: "Is it implied in that recommendation that
Mr. Young is also capable and suitable as a
residential parent?"

A: "Absolutely. This is one of the situations
where whatever the judge rules, as far as I'm
concerned, the kids are going to do fine."

Alice Hector (mother). Volume V. of Record, "I'm actively involved in their education. I
Page 46, Lines 21-25 of spend a lot of time talking with them and working
Transcript. with them on the schoolwork, trying to figure
out if they're having problems and trying to
remedy those problems, if they have it."

Volume V. of Record, "I spend a lot of time with them. Virtually
Page 47, Lines 10-25 and every vacation I take is with my children. I see
Page 48, Lines 1-11 of them almost every morning. I mean, there are
Transcript. some mornings when I'm out of town, but assuming
I'm in town, I wake up. I get up with
them. I wake them up. I give them breakfast.
I usually drive them to school unless I have to
be somewhere too early for that.
I see them as soon as I get home in the
evenings and spend all of my time with them
until they go to bed. I read with them; do
homework, with them. And virtually every
weekend, I spend almost the entire weekend
with them. Maybe once a month, I do some
adult activity where the children don't go, or
sometimes they go and do things with Bob
where they go someplace separate, but at least
every weekend I spend the entire weekend, and
usually if I go someplace to see friends or go any
place, it's usually in the company of my children."

Q: "In what way have you contributed, and
when I say that, I don't mean that in solely on
economic terms, obviously, to meeting the medical
needs of your children?"

A: "Well, I think that I'm the one who watches
out for those things. I mean, if one of my
children wakes up in the middle of the night and
gets sick to their stomach, they wake me up and
I take care of them."

Volume V. of Record, Q: "What role have you taken regarding the
Page 50, Lines 7-25 and children's food throughout their lives?"
Page 52, Lines 2-7 of A: "Well, throughout much of their life they
Transcript. have had a person who would make their dinners.
I make their breakfast most of the time
and help them make their lunches most of the
time ... I would say that the vast majority of
cooking that's done when you don't have live-in
help is done by me."

Q: "What role, if any, have you played in regard
to their shelter since they were born?"

A: "Since we moved to Miami (from New Mexico)
I've been virtually the sole person who has
contributed to providing the house and paying
for the house ... I know we talk a lot [referring
to former husband and herself] about what goes
on in school, who their friends are, what boys
they like, what things they want to do, what
presents they want to have, where they want to
go and who they want to be with, and I'm very
actively involved in what they do and very interested."

Volume V. of Record, Referring to parental responsibilities of the parties
Page 170, Lines 7-20 of regarding when a child is ill, and other
Transcript parental obligations.

A: "Frequently I'm up all night. If they're
sick overnight, I'm up with them most of the
night or whatever time they're up."
Q: "You testified that during at least the last
two years, you purchased the children's clothing,
you take them for their haircuts and other items
such as that.

Is the reason that you do that because you have
the money and Mr. Young doesn't?"

A: "I think that I have always done that. I
have always taken them shopping for their clothing.
I can't remember an instance when Mr.
Young did that, other than when he was traveling.
When he travels with the children, they
may go shopping someplace."

Volume V. of Record, A: "I leave the house generally at about 8:10,
Page 173, Lines 6-11 of 8:15 with the girls, drop them off at school, and
Transcript. get downtown sometime between 9:00 and 9:15,
depending on the traffic. I usually leave the
office some time between 5:30 and 7:00, depending
upon the day and what I'm doing."

Isabel Singletary (parties' Volume V. of Record Q: "What have you commented or observed
former neighbor; called Page 228, Lines 5-13 of regarding Alice's style of parenting."
by Alice). Transcript. A: "Alice is very good at instilling in the kids
sort of their own self-expression and she participates
a lot.

In other words, if they are doing puzzles, if
they are doing crafts, she draws a lot of the kids
out, whether it is to take them to the zoo or
whatever. She gets into the kids and draws out
what's in them. So there's, I guess, more involvement
from that aspect; less task-oriented."

Volume V. of Record, Q: "Have you observed any difference in the
Page 230, Lines 1-25 and amount of time either parent spends with the
Page 231, Lines 3-7 of children since the announcement of the divorce?"
Transcript A: "In the case of Alice, I don't see any difference.
I mean, she has always been heavily
involved with the kids on the weekends.
The only time she's not involved with the kids
is when she is on business."

Q: "What are the circumstances where you
would normally see Alice when she's away from
the home?"

A: "She might come to my house or we might
go to the movies or grab a bite to eat. Very
informal." Q: "Do you normally have your children
with your, hers and yours when you are all
together?"

A: "Yes. Most of the times, yes."

Q: "Would you say that it was more usual to
see Alice with her children than not?"

A: "Definitely, because when she's not working,
she's with her kids. When she's working, I
don't see her unless I come down to her office.

So basically when I see her, the kids are
around."

Q: "What activities have you done with Alice
and her girls?"

A: "The zoo, the beach, the movies, endless
crafts, endless puzzles. I can't even begin to tell
you, but just plays, skits."

Laura A. Mirabito (parties' Volume VI. of Record, Referring to her daughter, Regina, and the Hectors'
neighbor, called by Page 265, Lines 4-10 of daughter, Avery.
Robert). Transcript. Q: "Laura, on the weekends when Regina
comes over to play with Avery, is Alice normally
at home and with them?"

A: "Yes."

Q: "On the evenings, when Regina has spent
the night, is Alice always in the home with
them?"

A: "Yes."

Robert Young (father). Volume VI. of Record "... [P]art of why I married Alice is she's an
Page 360, Lines 14-16 of absolutely wonderful mother, and I could see in
Transcript. her being the mother of my children. That's
never been an issue."

Volume VI. of Record, Q. "During the last few years what has been
Page 449, Lines 1-11 of your normal day with the children?"
Transcript. A. "Well, the mornings vary. When Alice is
there she's a morning person. She always
has risen before me. I'm a night person and I
typically always have gone to bed after her.

And so if she's there, she will awaken the
children and that's like some of her quality time
with the kids in the morning and they'll have
breakfast together. She'll drop them off at
school on her way to work."

Volume VI. of Record, "Her [referring to the mother, Alice Hector]
Page 460, Lines 19-25 parenting is engaging. She loves to play games
and Page 461 Lines 1-5 with the kids. Alice loves jigsaw puzzles and
of Transcript. loves to bring the kids into that and do stuff
together and do activities together and play
games with the kids. And Alice is a reader.
She loves to read, which is why a lot of instances
maybe she's distant, but the wonderful thing
about that is reading is wonderful and she has
instilled and I say "she" read to the kids, too,
but Alice is more focused on the reading with
them than I have been because she loves to read
so much that she loves reading with the kids."

Volume VI. of Record "Maybe the children should stay with Alice until
Page 471, Lines 19-21 of I get it done [referring to finding employment]
Transcript. and the day I have the job they [referring to the
children] can come live with me."

Carol Lumpkin (parties' Volume VI. of Record, Q. "Have you had an opportunity to observe Ms.
neighbor; called by Page 380, Lines 11-20 Hector with her children?"
Robert). Transcript. A. "Yes, I have."

Q. "Could you tell me what you've observed?"
A. "She's a very good mother. She spends as
much time with her children as she can and I
think that she's very loving and caring with
them, also.

I think both parents in this case have very
different things to offer these children but they
both have a lot to offer these children."
[ 740 So.2d 1169 ]

As l lndlcaLed above, l belleve Lhe record would also have supporLed Lhe Lrlal courL lf Lhe faLher had been named as Lhe
prlmary resldenLlal parenL. noLwlLhsLandlng LhaL bellef, l noLe LhaL Lhe record conLalns negaLlve LesLlmony abouL Lhe
faLher's quallflcaLlons Lo be Lhe prlmary resldenLlal parenL. Whlle l do noL belleve LhaL Lhese negaLlve facLors should,
sLandlng alone, prevenL Lhe faLher from belng named Lhe prlmary resldenLlal parenL, when vlewed ln Lhe conLexL of Lhe
enLlre Lrlal, as Lhe Lrlal [udge would have vlewed Lhem, Lhese negaLlve facLors, when consldered ln connecLlon wlLh all of
Lhe precedlng LesLlmony abouL Lhe moLher, clearly can be vlewed as parL of Lhe basls for Lhe Lrlal [udge's concluslon LhaL
lL would be ln Lhe besL lnLeresLs of Lhe chlldren for Lhe moLher Lo be named as Lhe prlmary resldenLlal parenL.
Solely for demonsLraLlng whaL l belleve Lo be Lhe correcLness of Lhe commenLs LhaL l have expressed ln Lhe precedlng
paragraph, Lhe followlng ls a brlef summary of porLlons of Lhe record LhaL reflecL negaLlvely on Lhe faLher's ablllLy Lo be
named Lhe prlmary resldenLlal parenL:
Ira Dubitsky (Guardian Volume V. of Record, Answer of "GAL":
Ad Litem)("GAL") Page 26, Lines 15-25,
Page 27, Lines 1-22, and "... each of the parties harbors a good deal of
Page 28, Lines 1-3. anger towards the other and what is apparent to
me objectively is that they handle anger differently.

Alice controls it better around the kids ...
[her anger] did not carry over to her conversations
with the children or the way it affected the
children.

Bob, on the other hand, also is very angry.
He feels economically dependent. He feels that
he is a victim and that he has not been treated
right economically by Alice and has a tendency,
although he tries to control it, to verbalize it
more and both of the children mentioned to me
... he would do this and I experienced it myself
where he would say things in the presence of the
children that indicated to me his anger and his
displeasure at what he perceives to be the financial
inequities of the situation ... was concerned
about this underlying anger to the point where I
recommended to him that he get some counseling."

Volume V. of Record, Q: "Did you discuss with him [Robert Hector]
Page 34, Lines 18-25 and his plans as far as finding a career that would
Page 35, Lines 1-3. accommodate the children?"

A: "Extensively."

Q: "Did he indicate to you that he was willing
to do that?"

A: "He did, but he was kind of vague about it.
What he said was he wanted to get into some
sort of contracting thing where he could like
build a house in the neighborhood of his own
house; then leave the job site, come home, and
stuff like this and I don't know how realistically
a plan that is, quite frankly."

Alice Hector (mother). Volume V. of Record, "When I have come home after dinner most of
Page 57, Lines 5-9. the time, most of evenings after I come home, I
have spent with them and he [the father] has
done other activities, you know, done business
on the phone or gone out or things like that ..."

Volume V. of Record, Q: "You testified that you take care of the
Page 168, Lines 23-25 medical needs for the children.
and Page 169, Lines 6-17 Does that mean that Mr. Young does not pay
of Transcript. attention to their medical needs?"

A: "I would say that he doesn't recognize their
medical needs as readily as I do. I would say
that he doesn'tit's just not something that he
pays attention to as much as I do."

Q: "Do you know of one instance where he [the
father] neglected the medical needs for the children?"

A: "I know that on many instances I've said,
`They really have to go to the doctor today.' I
will have mentioned it a couple of times. She's
[referring to their children] sick for over a couple
of days, and then I might get insistent, and
that's happened a number of times.

I know I'm usually the person who indicates
that they are at a level that they need to go to
the doctor and I think virtually every time they
have gone, they need antibiotics. I mean, it was
something that they needed to be at the doctor
for soon. It was something that could not be
cured without going to the doctor."

Volume V. of Record, "... I wouldn't necessarily call them fights, but
Page 182, Lines 15-24; during the period of time, the 13 months between
Page 183, Lines 8-11 of '92 and '93, we had a number of discussions
Transcript. in that period of time, which I would insist
he needed to see the children, that the children
hadn't seen him for four weeks or six weeks and
he really needed to make time for them.

He would say he was really busy, that things
were really difficult out there, and he had to
wait on some particular thing ... I tried to
make sure that he saw them about once a
month, at least every five weeks. I think there
may have been once or twice when it was actually
longer than that."
lor all of Lhe foregolng reasons, as well as Lhe very cogenL dlscusslon of Lhe facLs and law conLalned ln Lhe ma[orlLy
oplnlon, l sLrongly agree LhaL Lhe orlglnal panel oplnlon rendered by Lhls CourL on Lhls case musL be reversed and Lhe
declslon of Lhe Lrlal courL, Lo name Lhe moLher as Lhe prlmary resldenLlal parenL, musL be afflrmed.
SC8CnuC, !. (concurrlng).
l agree wlLh Lhe ma[orlLy and wrlLe separaLely only Lo address Lhose porLlons of Lhe dlssenLs whlch rely on Lhe orlglnal
panel's oplnlon.
1he orlglnal panel oplnlon sLaLes LhaL "a Lrlal courL's declslon as Lo whlch parenL should be awarded prlmary resldenLlal
cusLody of Lhe chlldren should aLLempL Lo preserve and conLlnue Lhe care Laklng roles LhaL Lhe parLles had esLabllshed.
Such a conLlnuaLlon would clearly be ln Lhe besL lnLeresL of Lhe chlldren." Cn rehearlng, Mr. ?oung has embraced Lhls
reasonlng, buL Lhe record reflecLs LhaL Lhls was noL hls poslLlon below. uurlng Lrlal, Mr. ?oung LesLlfled LhaL he wanLed Lo
be Lhe prlmary resldenLlal parenL for Lhe chlldren. Pe also recognlzed LhaL he was confronLed wlLh Lhe conslderable Lask
of re-lnLegraLlng hlmself lnLo Lhe labor force. As concerned fuLure employmenL, he LesLlfled LhaL he had Lhree posslble
cholces: 1) archlLecLure, 2) consLrucLlon, or 3) worklng ln an enLrepreneurlal manner for hlmself. Pe observed LhaL Lhe
flrsL Lwo opLlons would requlre posL-graduaLe educaLlon dlrecLed Lowards achlevlng a masLer's degree. Pe esLlmaLed Lhe
cosL of Lhls addlLlonal educaLlon aL approxlmaLely $30,000.
[ 740 So.2d 1171 ]

LaLer ln hls LesLlmony, durlng a lengLhy narraLlve, he sald:
!udge, you have a dlfflculL asslgnmenL of flgurlng ouL, you know, how Lo haveso everybody wlns when Lhe besL
slLuaLlon ls sorL of baslcally everybody loses ln Lhe sense LhaL nobody geLs whaL Lhey wanL. noL "loses" and everybody ls
unhappy and LhaL's a wlnnlng slLuaLlon. [AnoLher faLher] has been able Lo arrange hls schedule around hls chlldren and l
[usL hope l can. l need help Lo do lL and l wanL help Lo do lL and l wanL Lo geL lL done. Maybe Lhe chlldren should sLay
wlLh Allce unLll l geL lL done and Lhe day l have Lhe [ob Lhey can come llve wlLh me. l wanL Lo geL a [ob LhaL allows me Lo
be wlLh Lhem. l wanL Lo be wlLh Lhem aL Lhree o'clock when Lhey geL ouL unLll Lhey go Lo bed.
(Lmphasls added). uurlng closlng argumenL, Mr. ?oung's lawyer followed up on Lhe same Lheme:
[8oberL] suggesLed an alLernaLlve. l would adopL LhaL suggesLlon. l don'L Lhlnk LhaL lL's an unreasonable suggesLlon. Pe
does need Lo geL a [ob.
* * *
llnanclally, rlghL now, l'm noL cerLaln l can come up wlLh a plan buL l am cerLaln LhaL Lhere ls a way Lo accommodaLe lL.
l'm noL a fan of Lemporary orders buL cerLalnly ln Lhls case lL mlghL be one LhaL begs ouL for a Lemporary order Lo allow
hlm an opporLunlLy, wlLhouL Lhe chlldren, wlLhouL Lhe responslblllLy for Lhe chlldren, Lo geL on hls feeL.
Pe needs Lo do LhaL and l'll be Lhe flrsL Lo admlL lL and he's noL golng Lo do lL whlle Lhe dlvorce ls pendlng and he's
cerLalnly noL golng Lo do lL wlLh Lwo llLLle chlldren LhaL he has Lo care for sLarLlng aL Lhree o'clock every day buL, lf he's
wllllng and moLlvaLed, l Lhlnk he can flnd a poslLlon LhaL would allow hlm Lo have more Llme wlLh Lhe chlldren aL leasL
Lhan a 9:00 Lo 3:00 poslLlon and maybe even more Lhan LhaL. Pe mlghL geL lucky. Pe mlghL flnd someone who ls wllllng
Lo accommodaLe hlm.
(Lmphasls added). Mr. ?oung's LesLlmony, and hls lawyer's summaLlon, caLegorlcally esLabllsh LhaL Lhe "conLlnulLy"
argumenL adopLed by Lhe dlssenL was noL ralsed ln Lhe Lrlal courL. lL ls clear LhaL nelLher Mr. ?oung nor hls lawyer were
overly concerned wlLh Lhe "conLlnulLy" problem, as Lhey were boLh wllllng Lo surrender prlmary cusLody durlng Lhe
proposed Lwo year educaLlonal rehablllLaLlon perlod. Moreover, ln such a close case, Lhls wllllngness Lo glve Ms. PecLor
prlmary cusLody may well have Llpped Lhe scales ln her favor. lndeed, Lhe quoLed porLlon of counsel's summaLlon above
ls found on page 331 of Lhe Lrlal LranscrlpL, and on page 332 Lhe Lrlal [udge deslgnaLes Ms. PecLor as Lhe prlmary
resldenLlal parenL. A parLy cannoL lnvlLe error aL Lhe Lrlal level Lhen be heard Lo complaln abouL lL on appeal. See CupLon
v. vlllage key & Saw Shop, lnc.,636 So.2d 473, 478 (lla.1993)(deflnlng Lhe lnvlLed error rule as follows: "a parLy cannoL
successfully complaln abouL an error for whlch he or she ls responslble or of rullngs LhaL he or she has lnvlLed Lhe Lrlal
courL Lo make."), Peld v. Peld,617 So.2d 338 (lla. 4Lh uCA 1993), oller v. llrsL vlrglnla MorLg. and 8eal LsLaLe lnv.
1rusL,471 So.2d 104 (lla. 3d uCA 1983).
Lven lf Lhe "conLlnulLy" argumenL had been made and properly preserved, a close analysls of Lhe evldence esLabllshes
LhaL Lhe Lrlal [udge's declslon does noL frusLraLe LhaL goal. Mr. ?oung LesLlfled LhaL Ms. PecLor was Lhe parenL who
awakened Lhe chlldren, dressed Lhem and gave Lhem breakfasL. Pe and Ms. PecLor would share Lhe responslblllLy of
Laklng Lhe chlldren Lo school. under Lhe flnal [udgmenL, Lhls process would remaln unchanged. Pe LesLlfled LhaL whlle
Lhe chlldren were ln school he would reLurn home and elLher work on hls upcomlng dlvorce, manage hls sLock markeL
accounLs or perform household errands. noLhlng ln Lhe flnal [udgmenL would change hls "durlng-school" acLlvlLles. Pe
lndlcaLed LhaL elLher he or Lhe
[ 740 So.2d 1172 ]

housekeeper would plck up Lhe chlldren aL school and he would Lhen share a varleLy of "afLer-school" acLlvlLles wlLh
Lhem. under Lhe flnal [udgmenL he would sLlll be able Lo do LhaL. Pe furLher LesLlfled LhaL he would have dlnner wlLh Lhe
chlldren on an almosL dally basls. noLhlng ln Lhe flnal [udgmenL wlll change Lhls. When Ms. PecLor came home ln Lhe
evenlng he would elLher reLlre Lo hls room or leave Lhe house, and Lhe chlldren would spend Llme wlLh Lhelr moLher,
who would Lalk wlLh and read Lo Lhem. 1hls also wlll remaln Lhe same. ln shorL, as far as Lhe chlldren are concerned,
under CpLlon 1 of Lhe flnal [udgmenL, noLhlng ln Lhelr llves wlll change unless Mr. ?oung becomes unavallable due Lo hls
educaLlonal, or, ulLlmaLely, career ob[ecLlves. lf Lhese ob[ecLlves lnLerfere wlLh whaL Lhe chlldren have come Lo know,
Lhey wlll be equally obsLrucLlve lf Mr. ?oung were deslgnaLed Lhe prlmary resldenLlal parenL. lL ls Lherefore clear LhaL Lhe
flnal [udgmenL does noL lmpede Lhe "conLlnulLy" of Lhe chlldren's llves, nor does lL slgnlflcanLly alLer Lhe care Laklng roles
of Lhelr parenLs.
SCPWA81Z, Chlef !udge (dlssenLlng).
l remaln convlnced by Lhe panel declslon and by Lhe dlssenLs of !udge nesblLL and !udge Coderlch LhaL Lhe Lrlal courL's
"award" of Lhe chlldren's prlmary physlcal resldence Lo Lhe moLher ls unsupporLed by any cognlzable, equlLable
conslderaLlon presenLed by Lhe record. As Lhe panel oplnlon, whlch has noL ln my vlew been successfully challenged by
any of Lhe conLrary brlefs or oplnlons,1 demonsLraLes, Lhe chlldren's parenLs, who know and care mosL abouL Lhelr
welfare, had Lhemselves esLabllshed an arrangemenL prlor Lo Lhe dlssoluLlon as a parL of whlch, upon any falr
assessmenL, Lhe faLher was Lhe prlmary careLaker. See rlnclples of Lhe Law of lamlly ulssoluLlon: Analysls and
8ecommendaLlons (Am. Law lnsL.1998)(1enLaLlve urafL no. 3, arL l) 2.03(6).2 As everyone agrees, under LhaL reglme,
lf noL because of lL, Lhelr glrls have Lurned ouL Lo be well-behaved, wellad[usLed, and accompllshed young women who
love boLh Lhelr parenLs: [usL whaL we all devouLly wlsh for and from our chlldren. 1here ls slmply no reason for a courL Lo
Lamper wlLh whaL has worked so well. See rlnclples of Lhe Law of lamlly ulssoluLlon: Analysls and 8ecommendaLlons
(Am. Law lnsL.1998)(1enLaLlve urafL no. 3, arL l) 2.09(1).3 1hls ls noL only because lL ls almosL always beLLer Lo
preserve
[ 740 So.2d 1173 ]

a known good raLher Lhan Lo rlsk whaL Lhe unknown fuLure may brlng, see 8umph v. v.u.,667 So.2d 998, 998 (lla. 3d
uCA 1996)(SchwarLz, C.!., speclally concurrlng), buL, much more lmporLanL, because Lhe chlldren are Lhemselves enLlLled
Lo sLablllLy ln Lhelr llves and rouLlne whlch would be compromlsed by any purposeless change ln Lhelr careglver. ln many
areas, Lhe law properly recognlzes Lhe undeslrablllLy of dlsrupLlng Lhe chlldren's clrcumsLances any more Lhan ls already
necessarlly requlred by Lhelr parenLs' separaLlon and dlvorce. 61.13(3)(d), lla. SLaL. (1993).4 See Mlze v. Mlze,621
So.2d 417 (lla.1993)3 (relocaLlon of cusLodlal parenL), lno v. lno,418 So.2d 311 (lla. 3d uCA 1982)(lmporLance of
chlldren's remalnlng ln home). 1hls prlnclple flnds speclal appllcaLlon ln Lhe rule LhaL modlflcaLlons of Lhe cusLody
provlslons of a flnal [udgmenL may be made only when Lhere has been a change of clrcumsLances adversely affecLlng Lhe
welfare of Lhe chlldren. 8elford v. 8elford, 139 lla. 347, 32 So.2d 312 (1947), 8lLsl v. 8lLsl,160 So.2d 139 (lla. 3d uCA),
cerL. denled, 166 So.2d 391 (lla. 1964). When, as here, Lhe chlldren have manlfesLly beneflLLed from an arrangemenL
esLabllshed before Lhe [udgmenL, Lhe same rule should apply.
WhaL happens when LhaL rule ls noL applled ls lllusLraLed by Lhe resulL ln Lhls very case, ln whlch lL was necessary below
and has been found necessary on appeal Lo resorL Lo oLher, lnadmlsslble, facLors Lo [usLlfy Lhe so-called exerclse of
dlscreLlon by Lhe Lrlal courL and Lhe afflrmance of LhaL resulL by Lhls one.6
A.
ln my oplnlon, Lhere ls no quesLlon whaLever LhaL Lhe resulL below was dlcLaLed by Lhe gender of Lhe compeLlng parLles.
lL ls usually exLremely dlfflculL Lo gauge Lhe underlylng moLlvaLlons of any human belng and one reslsLs even more Lhe
asslgnmenL of an unworLhy or lmpermlsslble reason Lo any [udge's exerclse of her [udlclal funcLlons. 1hls case, however,
permlLs no oLher concluslon. l belleve LhaL Lhls ls shown by conLemplaLlng a slLuaLlon ln whlch Lhe genders of Lhe hard
worklng and hlgh earnlng lawyer and Lhe sLay aL home archlLecL were reversed, buL everyLhlng else remalned Lhe same.
1he male aLLorney's clalm for cusLody would have been vlrLually laughed ouL of courL, and Lhere ls no reallsLlc posslblllLy
LhaL Lhe moLher archlLecL would have acLually "losL her chlldren."7
[ 740 So.2d 1174 ]

(1he facL, so heavlly emphaslzed by members of Lhe ma[orlLy, LhaL Lhe hypoLheLlcal moLher archlLecL mlghL have soughL
employmenL afLer Lhe dlssoluLlon, as usually occurs, and LhaL her Llme wlLh Lhe chlldren would have Lherefore
dlmlnlshed, would have made no dlfference elLher.)8 lL ls, aL besL, nalve ln Lhe exLreme Lo suggesL, leL alone flnd, LhaL
Lhe resulL below was noL dlcLaLed by Lhe evll of gender blas.
8.
8y re[ecLlng Lhe obvlous buL unaccepLable ln lLs search for a basls for Lhe resulL below, Lhe ma[orlLy has, ln my oplnlon,
relled upon someLhlng even worse. ln Lhe end, afLer a meLlculous lnqulry lnLo Lhe faLher's long pasL and non-parenLal
conducL whlch few morLals could wlLhsLand, lL bases lLs deLermlnaLlon LhaL Lhe dlscreLlon of Lhe Lrlal courL was properly
exerclsed upon Lhe bellef LhaL Lhe record shows (or LhaL Lhe Lrlal courL mlghL have properly belleved) LhaL Mr. ?oung ls
less slncere, less well moLlvaLed, less admlrable and generally a worse person and a worse parenL Lhan Ms. PecLor. As l
mlghL do myself, one may agree wlLh Lhls assessmenL of Lhe parLles whlle profoundly dlsagreelng, as l cerLalnly do, wlLh
Lhe ldea LhaL any such conslderaLlon ls a proper basls for declslon-maklng ln Lhls fleld. See 8umph, 667 So.2d aL 998.
lL ls of course Lrue, as Lhe ma[orlLy repeaLedly emphaslzes, LhaL a "cusLody" declslon ls one wlLhln Lhe dlscreLlon of Lhe
Lrlal courL. 8uL [udlclal dlscreLlon may properly be exerclsed only on Lhe basls of facLors whlch are legally perLlnenL Lo
Lhe lssue lnvolved. Canakarls v. Canakarls,382 So.2d 1197 (lla.1980)9, see larrlor v. larrlor,736 So.2d 1177 (lla.1999)[24
lLW S297]. ln Lhls area, LhaL lssue ls Lhe chlldren's besL lnLeresLs. lLs resoluLlon, ln Lurn, cannoL be based on a sub[ecLlve
assessmenL of Lhe worLh of Lhe conLendlng parLles so long as, as was concluslvely demonsLraLed ln Lhls case, Lhe conducL
and characLer LralLs referred Lo have noL lmpacLed upon Lhe chlldren. We had, l LhoughL, come a long way from Lhe Llme
when a parenL could be denled her parenLal rlghLsor, more properly sLaLed, when Lhe chlldren could be deprlved of
Lhelr
[ 740 So.2d 1173 ]

rlghLs Lo havlng only Lhelr lnLeresLs consldered merely because a [udge may dlsapprove of her sLandards of conducL,
much less of her characLer. ulnkel v. ulnkel,322 So.2d 22 (lla.1973).10 ApparenLly, l was mlsLaken.11 See Anderson v.
Anderson,736 So.2d 49, 33 n. 1 (lla. 3Lh uCA 1999)[24 lLW u1273, u1273 n. 1](challenglng ulnkel). AlLhough only wlLh
Lhe besL of lnLenLlons, and forLunaLely ln a case ln whlch chlldren wlll Lhrlve ln Lhe care of elLher parenL (or boLh of
Lhem), Lhe ma[orlLy has perhaps unwlLLlngly provlded LhaL cusLody declslons are sub[ecL Lo Lhe personal vlews of a
parLlcular [udge, who slLs as a uosLoevsklan Crand lnqulslLor, Lhe effecLuaLlon of whose own noLlons of rlghL and wrong
are sub[ecL Lo ob[ecLlve revlew by no one on Lhls earLh. ln a socleLy of law and noL persons, unknowable and un[udgable
quesLlons of characLer, personal worLh, and even acLual "mlsconducL," lf lrrelevanL Lo Lhe lssue under conslderaLlon,12
should noL govern declslon maklng ln Lhls area or any oLher. See S.8. v. u.P.,736 So.2d 766, 767 (lla. 2d uCA 1999)[24
lLW u1363, 1364]("1here ls no Solomon wlLhln our [udlclary who can accuraLely predlcL who would be Lhe `beLLer'
faLher for Lhls chlld."). 8esulLs on lndlsLlngulshable operaLlve facLs should noL vary from courLroom Lo courLroom
accordlng Lo Lhe moral preferences of Lhe Lrlal [udge (or appellaLe panel) asslgned by Lhe
[ 740 So.2d 1176 ]

luck of Lhe draw Lo hear Lhe case.13larrlor v. larrlor, 736 So.2d aL 1179 [24 lLW aL S298](arlenLe, !., concurrlng).14
8ecause Lhe ma[orlLy's declslon ls Lo Lhe conLrary of Lhese proposlLlons, l belleve LhaL lL ls very wrong.
nLS8l11, !. (dlssenLlng):
l respecLfully dlssenL.
l enLlrely agree wlLh Lhe orlglnal declslon and oplnlon of Lhls courL, flled !une 24, 1998 aL 23 lla. L. Weekly u1329, 740
So.2d 1134. 1he helghLened lnLeresL ln Lhe case prompLs me Lo dlscuss Lhe deLermlnaLlve facLors whlch orlglnally caused
me Lo voLe for reversal and agalnsL rehearlng en banc.
1he record demonsLraLes LhaL boLh Lhe moLher and Lhe faLher of Lhe chlldren are compleLely and enLlrely flL and worLhy
(as Lhe Lrlal courL found) Lo serve as prlmary resldenLlal parenL. As Lhe wlfe's law pracLlce grew and prospered (she was
worklng 11 and 12 hour days and was frequenLly gone overnlghL), she relled more and more upon Lhe husband, who
accepLed Lhe responslblllLy for Lhe care and needs of Lhe glrls. 1he arrangemenL began ln Lhe fall of 1993 and conLlnued
unLll Lhe 1996 dlssoluLlon proceedlng whlch led Lo Lhe husband's summary evlcLlon from Lhe marlLal home.
Acqulescence Lo Lhe chlld cusLody arrangemenL can and has been found Lo be an lmporLanL facLor of varlous aspecLs of
chlld cusLody problems. See larrell v. larrell,333 So.2d 1260, 1261 (lla. 3d uCA 1989), 8erhow v. Crow,423 So.2d 371,
373 (lla. 1sL uCA 1982), ln re Marrlage of lelg,296 lll.App.3d 403, 230 lll.uec. 683, 694 n.L.2d 634, 637 (1998), ln re
Marrlage of !ackson, 682. n.L.2d 349 (lnd.CL. App.1997), WrlghL v. SLovall, no. 01A01-9701-Cv-00040, 1997 WL 607308,
aL *3 (1enn.CL.App. CcL.3, 1997). 1hls sallenL facLor was wholly lgnored by Lhe Lrlal courL. SecLlon 61.13(2)(b)1, llorlda
SLaLuLes (1993), ln parL provldes "Lhe faLher of Lhe chlld shall be glven Lhe same conslderaLlon as Lhe moLher ln
deLermlnlng Lhe prlmary resldence of a chlld lrrespecLlve of Lhe age or sex of Lhe chlld."
ln Cherradl v. Lavole,662 So.2d 731 (lla. 4Lh uCA 1993), Lhe lourLh ulsLrlcL observed LhaL Lhe Lender years docLrlne was
lmpermlsslble as lL used gender as a basls for awardlng cusLody. ld. aL 733. 1he llfLh ulsLrlcL has noLed LhaL "[e]ven
Lhough [Lhe Lender years] docLrlne was overLurned by Lhe leglslaLure's gender neuLral pollcy, Lhere remalns a
LempLaLlon for many [udges Lo conslder Lhe rlghL Lo cusLody as Lhe moLher's Lo lose and unless her flLness ls leglLlmaLely
challenged, Lhe faLher's rlghL of equal conslderaLlon ls ofLen lgnored." Ayyash v. Ayyash,700 So.2d 732, 734 n. 3 (lla. 3Lh
uCA 1997).
ln Lhls proceedlng Lhe Lrlal [udge LoLally lgnored Lhe gender neuLral pollcy. lor example, aL one polnL ln Lhe proceedlng
he asked Lhe husband, "Maybe Lhere's someLhlng l don'L undersLandwhy don'L you geL a [ob?" lL ls exLremely unllkely
LhaL any clrculL [udge ln llorlda would have asked Lhe same quesLlon of Lhe moLher of
[ 740 So.2d 1177 ]

young chlldren whose husband was Lhen earnlng a subsLanLlal annual lncome.
Sub sllenLlo, Lhls courL llke Lhe Lrlal courL conLlnues Lo plllory Lhe faLher because he ls noL Lhe subsLanLlal bread wlnner ln
Lhe famlly. 8uL Lhere ls llLLle or no correlaLlon beLween belng Lhe money maker or beLween belng wealLhy or noL, ln
order Lo make one an effecLlve parenL.
8y Loday's declslon, Lhe courL remalns allgned wlLh Lhe LradlLlonal vlew LhaL a moLher wlll noL lose her enLlLlemenL Lo
become Lhe prlmary resldenLlal parenL unless her unflLness ls demonsLraLed, no maLLer how acLlvely she ls engaged
ouLslde of and away from Lhe home, even Lhough Lhe oLher parenL ls flL and wllllng Lo serve ln LhaL capaclLy. Such
holdlng necessarlly lmplles LhaL chlldren Lherefore wlll be subsLanLlally or ln parL reared by a surrogaLe parenL. lL occurs
Lo me LhaL boLh Lhe chlldren and Lhe socleLal lnLeresL are beLLer served by placemenL wlLh a naLural parenL who ls
avallable.
Clven Lhe parLles' own conducL Loward Lhe care and rearlng of Lhese chlldren lL leaves no doubL LhaL Lhelr besL lnLeresLs
would be LhaL Lhey remaln wlLh Lhelr prlmary care glver, here Lhelr naLural faLher. Where parenLs Lhemselves have
esLabllshed an arrangemenL (whlch Lhey do noL elLher dlspuLe, conLradlcL or refuLe) whlch supporLs Lhe chlldren's besL
lnLeresLs Lhere ls no reason for Lhe courLs Lo lnLerfere.
l Lherefore dlssenL wlLh Lhe chlld cusLody dlspuLe buL agree wlLh reversal of Lhe flnanclal lssues, because LhaL porLlon of
Lhe [udgmenL ls skewed as Lhe resL.
CCuL8lCP, !. (dlssenLlng):
l respecLfully dlssenL for Lhe reasons expressed ln Lhe panel oplnlon. ?oung v. PecLor, 23 lla. L. Weekly u1329, 740 So.2d
1138 (lla. 3d uCA 1998). lL ls lncomprehenslble how Lhe ma[orlLy of Lhe en banc panel can agree LhaL Lhe Lrlal courL
abused lLs dlscreLlon ln vlrLually every flnal rullng lL made, excepL as Lo lLs rullng on Lhe award of prlmary resldenLlal
cusLody. lL ls apparenL LhaL Lhe Lrlal courL also abused lLs dlscreLlon by awardlng prlmary resldenLlal cusLody of Lhe mlnor
chlldren Lo Lhe parenL who has been worklng long hours as a senlor llLlgaLlon parLner ln one of Mlaml's Lop law flrms as
opposed Lo Lhe parenL who has noL worked ouLslde of Lhe home for Lhe Lhree years precedlng Lhe flllng of Lhe
dlssoluLlon acLlon.
1he ma[orlLy oplnlon focuses on Lhe facL LhaL Lhe parLles dld noL muLually agree LhaL Lhe faLher would sLay aL home Lo
care for Lhe chlldren. AlLhough lL may be Lrue LhaL Lhe moLher dld noL expressly agree, Lhe record demonsLraLes LhaL Lhe
moLher noneLheless acqulesced Lo Lhls arrangemenL by allowlng lL Lo conLlnue for Lhree years. lor example, alLhough
Lhe parLles had "separaLed," Lhe moLher permlLLed Lhe husband Lo llve ln Lhe marlLal home and Lo conLlnue hls role as a
sLay-aL-home parenL. Moreover, Lhere ls no doubL LhaL Lhe moLher beneflLed from Lhls arrangemenL (and posslbly LhaL ls
why she allowed lL Lo conLlnue). As a resulL of Lhls careLaklng arrangemenL, Lhe moLher was free Lo dedlcaLe herself Lo
her legal career by worklng exLremely long hours1 wlLhouL havlng Lo worry abouL wheLher Lhe mlnor chlldren's
emoLlonal needs were belng meL. Also, Lhe record lndlcaLes LhaL Lhe chlldren also beneflLed from Lhelr faLher's role as
Lhe prlmary careLaker slnce he was acLlvely lnvolved ln Lhelr school and afLer-school acLlvlLles.
lurLher, l belleve LhaL gender played a role ln Lhe Lrlal courL's declslon, and conLlnues Lo play a role ln Lhls CourL's
declslon. AL one polnL, Lhe Lrlal courL, whlle quesLlonlng Lhe faLher as Lo Lhe nanny's role, sLaLed Lo Lhe faLher: "Maybe
l'm mlsslng someLhlng. Why don'L you geL a [ob." ShorLly LhereafLer, Lhe Lrlal courL also sLaLed: "Why [slc] do you need
Lhe
[ 740 So.2d 1178 ]

nanny for, lf you're Lhere dolng lL?" 1he ma[orlLy oplnlon clalms LhaL
Lhls lnqulry by Lhe courL ls noL evldence of gender blas. Clven Lhe undlspuLed large flnanclal lndebLedness of Lhls couple,
Lhe Lrlal courL's lnqulry abouL Lhe need Lo employ a full-Llme nanny was boLh loglcal and pracLlcal under Lhese
clrcumsLances and cerLalnly could have also been approprlaLely posed Lo Lhe moLher lf she had been recalclLranL abouL
seeklng galnful employmenL Lo asslsL Lhe famlly's flnanclal slLuaLlon.
(Ma[. op. aL 1162). l do noL agree wlLh Lhe ma[orlLy's observaLlon LhaL Lhese sLaLemenLs had noLhlng Lo do wlLh gender
blas, buL raLher was a resulL of Lhe parLles' flnanclal condlLlon. uurlng Lhe Lrlal courL's exchange wlLh Lhe husband, Lhere
ls noLhlng LhaL would lndlcaLe LhaL Lhe Lrlal courL was concerned wlLh Lhe parLles' flnanclal condlLlon. (Ma[. op. aL 1162).
lurLher, l flnd lL exLremely hard Lo belleve LhaL lf Lhe roles were reversed any Lrlal [udge would quesLlon a moLher's lack
of employmenL or Lhe employmenL of a nanny when Lhe faLher earns over $300,000 per year. Moreover, Lhe record
lndlcaLes LhaL lL was Lhe moLher, noL Lhe faLher, who employed Lhe nanny. (Ma[. op. aL 1139).
1he ma[orlLy oplnlon also suggesLs LhaL Lhe faLher should have obLalned galnful employmenL ln order Lo flnanclally asslsL
Lhe household and mlnor chlldren ln llghL of Lhe parLles' flnanclal condlLlon. 1he record clearly demonsLraLes LhaL wlLh
Lhe husband's presenL skllls, he dld noL have Lhe ablllLy Lo earn a subsLanLlal amounL of money. lurLher, Lhls was noL a
famlly ln whlch Lhe worklng parenL was earnlng $30,000 and any addlLlonal sums earned by Lhe oLher parenL would have
been helpful Lo provlde Lhe chlldren wlLh baslc necesslLles such as food, cloLhlng, and shelLer. 1he record clearly
esLabllshes LhaL Lhe mlnor chlldren's baslc necesslLles were more Lhan Laken care of. 1here are cerLaln Lhlngs LhaL money
cannoL buy and LhaL a nanny cannoL provlde, such as Lhe aLLenLlon of carlng parenLs.
Cnce agaln, l do noL belleve LhaL lf Lhe roles were reversed (a faLher who earns over $300,000 per year and a non-
worklng moLher), Lhe ma[orlLy would have suggesLed LhaL Lhe chlldren would have been beLLer off lf Lhe moLher would
have aLLalned employmenL when her earnlng poLenLlal ls llmlLed and Lhe faLher already makes over $300,000 per year.
lnsLead, Lhe ma[orlLy would have probably suggesLed LhaL Lhe faLher resLrucLure hls debL, sell asseLs, and/or cuL down
on expenses so LhaL Lhe moLher could conLlnue Lhe careLaklng role LhaL was esLabllshed durlng Lhe marrlage.
1he ma[orlLy oplnlon also addresses Lhe Lhree "deLermlnaLlve facLors" LhaL Lhe guardlan ad llLem looked aL ln
recommendlng LhaL Lhe moLher be named Lhe prlmary resldenLlal parenL. llrsL, Lhe guardlan focused on Lhe facL LhaL Lhe
moLher has been more economlcally sLable LhroughouL Lhe marrlage. Cnce agaln, lf Lhe roles were reversed, l belleve
LhaL Lhe guardlan ad llLem would noL have consldered economlcal sLablllLy as a "deLermlnaLlve facLor." lurLher, ln llghL
of Lhe chlld supporL guldellnes, a parenL's flnanclal resources should never be consldered as a "deLermlnaLlve facLor" ln
decldlng whlch parenL should be awarded prlmary resldenLlal cusLody of Lhe mlnor chlldren.
1he second "deLermlnaLlve facLor" was LhaL Lhe moLher has been "Lhe more consLanL facLor LhroughouL Lhe enLlre
relaLlonshlp." 1he guardlan ad llLem focused on Lhe facL LhaL Lhe faLher had been "away from Lhe home for subsLanLlal
perlods of Llme...." l feel LhaL lL ls lmporLanL Lo explaln why Lhe faLher had been away from Lhe home. llrsL, when Lhe
parLles declded Lo move Lo Mlaml, Lhe faLher sLayed ln new Mexlco for approxlmaLely Lhree monLhs ln order Lo move
Lhe famlly's possesslons Lo Mlaml and Lo make lmprovemenLs Lo Lhe marlLal home so LhaL Lhe parLles could sell Lhe
home aL lLs hlghesL posslble prlce. Second, Lhe husband, was away for Lhree Lo four weeks Lo be
[ 740 So.2d 1179 ]

wlLh hls lll broLher, who dled shorLly afLer he arrlved, and Lo help seLLle hls broLher's esLaLe. llnally, Lhe faLher was ln
new Mexlco from !une 1992 Lo SepLember 1993 ln order Lo dlrecL a Lreasure hunL pro[ecL. 1he ma[orlLy relles on Lhe
"Lreasure hunL" Lo make lL appear as lf Lhe Lreasure hunL was a crazy or welrd noLlon. Powever, whaL Lhe ma[orlLy has
falled Lo sLaLe ls LhaL lL may noL have been so sLrange slnce Lhe moLher's parenLs and Lrlal counsel also lnvesLed ln Lhls
pro[ecL. 1herefore, Lhe reasons for Lhe faLher's absence from Lhe home were valld. lurLher, Lhe facL LhaL Lhe faLher had
been away from Lhe famlly should noL be a "deLermlnaLlve facLor" when Laklng lnLo conslderaLlon LhaL Lhe faLher has
been Lhe prlmary careLaker slnce Lhe fall of 1993.
llnally, Lhe Lhlrd deLermlnaLlve facLor was LhaL Lhe moLher "conLrols her anger beLLer around Lhe klds." 1he guardlan ad
llLem LesLlfled LhaL Lhe faLher "would say Lhlngs ln Lhe presence of Lhe chlldren LhaL lndlcaLed Lo me hls anger and hls
dlspleasure aL whaL he percelves Lo be Lhe flnanclal lnequlLles of Lhe slLuaLlon...." l agree wlLh Lhe guardlan ad llLem LhaL
belng able Lo conLrol anger ls an lmporLanL facLor ln decldlng chlld cusLody lssues. Powever, Lhe faLher's anger was
based on Lhe "flnanclal lnequlLles of Lhe slLuaLlon," a problem LhaL should be compleLely resolved based on Lhe
ma[orlLy's declslon Lo reverse and remand all flnanclal deLermlnaLlons made by Lhe Lrlal courL, lncludlng Lhe lnsufflclenL
award of allmony Lo Lhe faLher and Lhe lnequlLable dlsLrlbuLlon of Lhe marlLal asseLs and llablllLles.
llnally, l would llke Lo noLe LhaL Lhe scenarlo conLalned ln Lhe presenL case ls unlque. ln slLuaLlons where famllles are
forLunaLe enough Lo have one parenL sLay aL home Lo care for Lhe chlldren, lL ls usually Lhe moLher. 8ecause Lhe presenL
slLuaLlon ls noL Lhe norm, Lhls may be why lL ls dlfflculL Lo see LhaL Lhe Lrlal courL abused lLs dlscreLlon by noL awardlng
prlmary resldenLlal cusLody of Lhe mlnor chlldren Lo Lhe faLher, Lhe parenL who has noL worked ouLslde of Lhe home for
Lhe pasL Lhree years ln order Lo care for Lhe mlnor chlldren.
lor all Lhese reasons, l dlssenL as Lo Lhe ma[orlLy's declslon as Lo Lhe chlld cusLody lssue, buL agree wlLh Lhe ma[orlLy, as l
orlglnally dld ln Lhe panel oplnlon, LhaL Lhe flnanclal lssues musL be reversed and remanded for furLher proceedlngs.
looLnoLes

* !udge Shevln ls recused.
8ack Lo 8eference
1. 1hls cerLalnly was a valld conslderaLlon whlch could have facLored lnLo Lhe lower courL's deLermlnaLlon as Lo Lhe
cusLody of Lhe mlnor chlldren ln Lhls case.
8ack Lo 8eference
2. 1he facL LhaL Lhe chlldren deemed Lhelr moLher Lo be Lhe "go Lo" parenL when Lhey were lll or dlsLressed durlng Lhe
nlghL speaks volumes abouL whlch parenL Lhey deemed Lo have been Lhelr consLanL careglver. Moreover, lL supporLs Lhe
guardlan ad llLem's observaLlon LhaL Lhe moLher had been "Lhe more consLanL facLor LhroughouL Lhe enLlre
relaLlonshlp."
8ack Lo 8eference
3. [C] ?ou LesLlfled LhaL you had Lrled Lo geL Allce Lo puL LogeLher a budgeL and Lyplcally she would say Lo you, "We don'L
have LhaL much money."
uld she noL every Llme follow lL up wlLh a commenL, "And you need Lo go Lo work?"
[laLher] no.
[C] uld she ever suggesL Lo you you needed Lo go Lo work?
[laLher] ?es.
[C] Cn more Lhan flve (ob[ecLlons/occaslons) [slc]?
[laLher] Ch, yes, when she flled for dlvorce, lL was a loL more Lhan flve occaslons.
8ack Lo 8eference
4. As Lhe faLher LesLlfled:
[C] ln Lhe evenlngs, when Allce comes home, do you preLLy much absenL yourself slnce Lhe Llme LhaL she's lndlcaLed LhaL
she wanLs Lhls dlvorce?
[A] ?es and no. She, a loL of Llmes, llkes Lo slL down have a llLLle Llme Lo herself and eaL dlnner and noL be boLhered.
1hen afLer LhaL she wlll engage Lhe klds. And l wlll elLher leave Lhe house and leave her wlLh Lhe klds or l may go Lo my
room or l may go Lo Lhe sLudy and close Lhe door. l don'L generally slL down nexL Lo her and say, "LeL's all play Lhls game
LogeLher." ?es, l Lry Lo glve her space wlLh Lhe klds, as l menLloned earller. l don'L compeLe wlLh her, elLher.
[C] uo you spend mosL evenlngs and some nlghLs away from Lhe home?
[A] MosL evenlngs, l don'L know. l spend, because of Lhe slLuaLlon, a good deal of Llme away afLer she comes home.
8ack Lo 8eference
3. 1he Lrlal courL's skepLlclsm abouL Lhe faLher's "acLual" avallablllLy for Lhe chlldren durlng Lhe day was also borne ouL
by an observaLlon made by Lhe guardlan ad llLem ln hls reporL. 1he reporL lndlcaLed LhaL Lhe moLher was laLe for her
scheduled appolnLmenL wlLh Lhe guardlan because upon learnlng LhaL Lhe youngesL chlld had become lll durlng school,
Lhe moLher had Lo arrange for her broLher Lo plck up and care for Lhe chlld unLll back up help became avallable, due Lo
Lhe unavallablllLy of Lhe faLher.
8ack Lo 8eference
6. lnLeresLlngly, Lhe faLher's own aLLorney conceded ln closlng argumenL LhaL Lhe faLher needed Lo be galnfully
employed.
Pe needs Lo do LhaL [flnd employmenL] and l'll be Lhe flrsL Lo admlL lL and he's noL golng Lo do lL whlle Lhe dlvorce ls
pendlng and he's cerLalnly noL golng Lo do lL wlLh Lwo llLLle chlldren LhaL he has Lo care for sLarLlng aL Lhree o'clock every
day buL, lf he's wllllng and moLlvaLed, l Lhlnk he could flnd a poslLlon LhaL would allow hlm Lo have more Llme wlLh Lhe
chlldren aL leasL Lhan a 9:00 Lo 3:00 poslLlon and maybe even more Lhan LhaL. Pe mlghL geL lucky. Pe mlghL flnd
someone LhaL's wllllng Lo accommodaLe hlm.
8ack Lo 8eference
7. lL ls lnLeresLlng LhaL boLh, Lhe guardlan ad llLem and Lhe faLher's own aLLorney recognlzed Lhe unreasonableness of
Lhe faLher's proposed plan Lo remaln aL home full-Llme wlLh Lhe chlldren as Lhelr cusLodlal parenL wlLhouL galnful
employmenL. 1he guardlan ad llLem observed ln hls reporL Lhe followlng:
llnally, lL ls my bellef LhaL Lhe Pusband's plan Lo remaln a full Llme parenL ls unreallsLlc, and alLhough he raLlonallzes LhaL
Lhlngs would be dlfferenL lf he were a woman, l don'L belleve LhaL Lhe CourL would LreaL a woman wlLh Lhe same
background and quallflcaLlons any dlfferenLly from a man, ln Lhe absence of an agreemenL beLween Lhe parLles, whlch
boLh sldes agree does noL exlsL, ...
Slmllarly, durlng closlng argumenLs, Lhe faLher's counsel observed:
LssenLlally lL's an economlc lssue versus a Llme lssue. Mr. ?oung's poslLlon rlghL now, whlch we all agree ls unreasonable,
ls Lhe besL for Lhe chlldren.
lf you were Lo sLay home and be supporLed and be wlLh Lhe chlldren and geL rld of Lhe housekeeper LhaL would be Lhe
besL scenarlo. l don'L Lhlnk LhaL's a falr scenarlo. l don'L Lhlnk anyone ls suggesLlng lL.
8ack Lo 8eference
1. Much of Lhe plcklng aL Lhe panel fallaclously asslgns Lhe "careLaklng funcLlons" of Lhe housekeeper Lo Lhe moLher and
relles upon a posslble change ln Lhe clrcumsLances of Lhe parenLs whlch mlghL follow Lhe dlssoluLlon.
8ack Lo 8eference
2. 2.03 ueflnlLlons
(6) CareLaklng funcLlons are Lasks LhaL lnvolve lnLeracLlon wlLh Lhe chlld or dlrecL Lhe lnLeracLlon and care provlded by
oLhers. CareLaklng funcLlons lnclude
(a) feedlng, bedLlme and wake-up rouLlnes, care of Lhe chlld when slck or hurL, baLhlng, groomlng, personal hyglene,
dresslng, recreaLlon and play, physlcal safeLy, LransporLaLlon, and oLher funcLlons LhaL meeL Lhe dally physlcal needs of
Lhe chlld,
(b) dlrecLlon of Lhe chlld's varlous developmenLal needs, lncludlng Lhe acqulslLlon of moLor and language skllls, LolleL
Lralnlng, self-confldence, and maLuraLlon,
(c) dlsclpllne, lnsLrucLlon ln manners, asslgnmenL and supervlslon of chores, and oLher Lasks LhaL aLLend Lo Lhe chlld's
needs for behavloral conLrol and self-resLralnL,
(d) arrangemenLs for Lhe chlld's educaLlon, lncludlng remedlal or speclal servlces approprlaLe Lo Lhe chlld's needs and
lnLeresLs, communlcaLlon wlLh Leachers and counselors, and supervlslon of homework,
(e) Lhe developmenL and malnLenance of approprlaLe lnLerpersonal relaLlonshlps wlLh peers, slbllngs, and adulLs,
(f) arrangemenLs for healLh care, lncludlng maklng appolnLmenLs, communlcaLlon wlLh healLh-care provlders, medlcal
follow-up, and home healLh care,
(g) moral guldance, and
(h) arrangemenL of alLernaLlve care by a famlly member, baby-slLLer, or oLher chlld-care provlder or faclllLy, lncludlng
lnvesLlgaLlon of alLernaLlves, communlcaLlon wlLh provlders, and supervlslon.
8ack Lo 8eference
3. 2.09 AllocaLlon of CusLodlal 8esponslblllLy
(1) unless oLherwlse resolved by agreemenL of Lhe parenLs ... or unless manlfesLly harmful Lo Lhe chlld, Lhe courL should
allocaLe cusLodlal responslblllLy so LhaL Lhe proporLlon of cusLodlal Llme Lhe chlld spends wlLh each parenL approxlmaLes
Lhe proporLlon of Llme each parenL spenL performlng careLaklng funcLlons for Lhe chlld prlor Lo Lhe parenLs'
separaLlon....
8ack Lo 8eference
4. (3) lor purposes of shared parenLal responslblllLy and prlmary resldence, Lhe besL lnLeresLs of Lhe chlld shall lnclude
an evaluaLlon of all facLors affecLlng Lhe welfare and lnLeresLs of Lhe chlld, lncludlng, buL noL llmlLed Lo:
* * *
(d) 1he lengLh of Llme Lhe chlld has llved ln a sLable, saLlsfacLory envlronmenL and Lhe deslrablllLy of malnLalnlng
conLlnulLy.
8ack Lo 8eference
3. AdopLlng oplnlons ln Plll v. Plll,348 So.2d 703 (lla. 3d uCA 1989)(per nesblLL, !., SchwarLz, C.!., speclally concurrlng),
revlew denled, 360 So.2d 233 (lla.1990).
8ack Lo 8eference
6. CredlLlng Lhe pasL record of Lhe dlvlslon of careLaklng funcLlons beLween Lhe parenLs also has Lhe very saluLary
consequence of avoldlng rellance on such facLors as Lhe expressed preferences of Lhe chlldren, see lla.8.lam.Law .
12.407, and, even more, Lhe mlsnamed "experL" oplnlons of parLlclpanLs ln Lhe Lhrlvlng coLLage lndusLry of forenslc chlld
psychology. See rlnclples of Lhe Law of lamlly ulssoluLlon: Analysls and 8ecommendaLlons (Am. Law
lnsL.1998)(1enLaLlve urafL no. 3, arL l), 8egan v. 8egan,660 So.2d 1166, 1168 (lla. 3d uCA 1993)(SchwarLz, C.!.,
dlssenLlng ln parL), keesee v. keesee,673 So.2d 633 (lla. 3Lh uCA 1996)(Crlffln, !., concurrlng speclally). 1he ma[orlLy's
refusal Lo follow Lhe prlor careLaklng arrangemenL rule ln Lhls case may well resulL ln emphasls upon Lhese facLors ln Lhe
fuLure. (Commendably, however, desplLe Lhe depLh of Lhelr own dlspuLe, Lhe parLles here aL leasL dld noL requlre Lhelr
glrls Lo choose up sldes ln Lhe llLlgaLlon nor lnvolve Lhem ln an unnecessary and damaglng process of psychologlcal
LesLlng, LreaLmenL, and dlsclosure.)
8ack Lo 8eference
7. 1haL Lhe lssues have so ofLen been puL ln Lhese Lerms, whlch beLLer descrlbe a sporLs evenL Lhan a dlspasslonaLe
search for a resulL whlch mosL beneflLs Lhe chlldren ls one of Lhe mosL unforLunaLe aspecLs of Lhls case. See Mlze v.
Mlze,621 So.2d 417, 420 (lla.1993)(8arkeLL, !., concurrlng)(expresslng grave doubLs as Lo wlsdom of employlng
adversary process ln resolvlng famlly lssues). 1haL lL should be wldely LhoughL LhaL a moLher, and only a moLher, ls
consldered morally or maLernally deflclenL lf she ls noL granLed cusLody, ls a LesLamenL Lo Lhe pervaslveness of sexual
sLereoLyplng ln our supposedly genderbllnd socleLy. 1haL Lhe ma[orlLy declslon wlll llkely serve Lo perpeLuaLe boLh of
Lhese fallacles ls dlshearLenlng.
8ack Lo 8eference
8. 1haL worklng faLhers have almosL never acLually galned cusLody has noL prevenLed Lhe use of such clalms or even Lhe
LhreaL of brlnglng Lhem as effecLlve "bargalnlng chlps" meanlng lnsLrumenLs of exLorLlonln seLLllng Lhe flnanclal
dlspuLes whlch are usually Lhe only real lssues ln Lhese cases. 1aklng Lhe ma[orlLy aL lLs word LhaL Lhe sex of Lhe worklng
parenL makes no dlfference, Lhe resulL ln Lhls case, whlch means LhaL a non-careLaklng faLher may acLually succeed ln
"Laklng Lhe chlldren away" from Lhe moLher, wlll lnevlLably resulL ln a greaL lncrease ln Lhe dollar value of Lhls nefarlous
LacLlc, and ln Lhe lnvolvemenL of Lhe courLs ln Lhe use of chlldren as pawns ln personal dlspuLes beLween allenaLed
spouses. Cf all Lhe many adverse consequences of Loday's declslon, Lhese may be Lhe mosL serlous.
8ack Lo 8eference
9. CuoLlng from 8. Cardozo, 1he naLure of Lhe !udlclal rocess 141 (1921):
1he [udge, even when he ls free, ls sLlll noL wholly free. Pe ls noL Lo lnnovaLe aL pleasure. Pe ls noL a knlghL-erranL
roamlng aL wlll ln pursulL of hls own ldeal of beauLy or of goodness. Pe ls Lo draw hls lnsplraLlon from consecraLed
prlnclples. Pe ls noL Lo yleld Lo spasmodlc senLlmenL, Lo vague and unregulaLed benevolence. Pe ls Lo exerclse a
dlscreLlon lnformed by LradlLlon, meLhodlzed by analogy, dlsclpllned by sysLem, and subordlnaLed Lo "Lhe prlmordlal
necesslLy of order ln Lhe soclal llfe." Wlde enough ln all consclence ls Lhe fleld of dlscreLlon LhaL remalns.
Canakarls, 382 So.2d aL 1203.
8ack Lo 8eference
10. oor moral cholces are lnsufflclenL grounds Lo modlfy cusLody, absenL some lmpacL on Lhe chlld. ulnkel v. ulnkel,322
So.2d 22 (lla.1973), !ablon v. !ablon,379 So.2d 902 (lla. 2d uCA 1991). lrequenL moves, a less sLable llfesLyle, even poor
relaLlonshlp cholces sLandlng alone may noL supporL a cusLody modlflcaLlon where Lhe resldenLlal parenL has moved ouL
of necesslLy, has subsequenLly esLabllshed a sLable home, and Lhe chlld's needs have always been meL. See !ablon v.
!ablon,379 So.2d 902 (lla. 2d uCA 1991), kelly v. kelly,642 So.2d 800 (lla. 2d uCA 1994).
Sulllvan v. Sulllvan,736 So.2d 103, 103 (lla. 4Lh uCA 1999)[24 lLW u1473].
8ack Lo 8eference
11. Anderson v. Anderson,736 So.2d 49 (lla. 3Lh uCA 1999)[24 lLW u1273] shows Lhe consequences of Lhe ma[orlLy
holdlng ln Lhls case. 1here, a speclal masLer "Look Lhe chlldren away" from Lhelr moLher apparenLly because of her
percelved mlsconducL whlch, as Lhe dlssenL esLabllshes, dld noL affecL Lhelr well belng. 1he revlewlng clrculL [udge, llke
Lhe panel here, reversed LhaL declslon buL was ln Lurn reversed by Lhe llfLh ulsLrlcL whlch, llke our en banc courL, found
LhaL Lhe masLer's recommendaLlon was noL an abuse of dlscreLlon. !udge 1hompson's dlssenLlng oplnlon demonsLraLes
Lhe lncorrecLness of upholdlng a parLlcular declslon as an exerclse of dlscreLlon ln Lhe absence of any leglLlmaLe basls
upon whlch Lhe declslon could have been reached. lL shows also, lf we musL puL Lhe lssue ln gender-based Lerms, LhaL
Lhe declslon may well backflre agalnsL many moLhers, Lhe vasL ma[orlLy of whom, because Lhey so much more ofLen
have acLually been Lhe chlldren's careLakers before Lhe dlssoluLlon, have hlsLorlcally been granLed cusLody.
8ack Lo 8eference
12. l have long held and ofLen expressed Lhe oplnlon LhaL, ln cerLaln clrcumsLances, a good case can be made for
conslderlng, dare l say lL, "faulL" ln deLermlnlng Lhe flnanclal consequences of a dlssoluLlon, on Lhe grounds LhaL lL
concerns only lssues beLween husband and wlfe and LhaL lL may be
lmproper Lo permlL an erranL spouse Lo desLroy a marrlage and Lhen Lo clalm beneflLs equal Lo Lhose whlch would have
been provlded had lL remalned lnLacL.
SmlLh v. SmlLh,378 So.2d 11, 13 (lla. 3d uCA 1979), cerL. denled, 388 So.2d 1118 (lla. 1980), lLLs v. lLLs,412 So.2d 404,
403 n. 1 (lla. 3d uCA 1982), MarLln v. MarLln,366 So.2d 473, 473 (lla. 3d uCA 1979)(SchwarLz, !., speclally concurrlng),
see also 8axLer v. 8axLer,720 So.2d 624, 624 (lla. 3Lh uCA 1998)(Parrls, !., concurrlng and concurrlng speclally). lL seems,
aL leasL Lo me, lronlc, and lL ls cerLalnly personally upseLLlng, LhaL Lhe law ls now compleLely Lo Lhe reverse of whaL l
Lhlnk lL should be. Such cases as noah v. noah,491 So.2d 1124 (lla.1986) and Pellman v. Pellman,610 So.2d 60, 61 (lla.
3d uCA 1992) esLabllsh LhaL llorlda wlll noL permlL mlsconducL Lo lnLerfere wlLh Lhe rlghL Lo recover money and properLy
from one's exspouse. Anderson v. Anderson,736 So.2d 49 (lla. 3Lh uCA 1999)[24 lLW u1273] and Lhe ma[orlLy oplnlon
here esLabllsh LhaL Lhe welfare of chlldren can be compromlsed by a [udge's adverse oplnlon of Lhe characLer or llfesLyle
of one of Lhelr parenLs. lor all Lhe good lL wlll do, l proLesL.
(l noLe LhaL applylng my vlews Lo Lhls case mlghL concelvably resulL ln a reversal of Lhe cusLody and chlld supporL rullngs
below buL an afflrmance of Lhe allmony and equlLable dlsLrlbuLlon provlslons[usL Lhe opposlLe of whaL Lhe courL has
done.)
8ack Lo 8eference
13. McAlllsLer v. McAlllsLer,343 So.2d 332 (lla. 4Lh uCA 1977), cerL. denled, 337 So.2d 186 (lla.1978)(LeLLs, !.), clLed ln
SmlLh v. SmlLh, 378 So.2d aL 11.
8ack Lo 8eference
14. CuoLlng from Canakarls:
1he dlscreLlonary power LhaL ls exerclsed by a Lrlal [udge ls noL, however, wlLhouL llmlLaLlon, and boLh appellaLe and Lrlal
[udges should recognlze Lhe concern whlch arlses from subsLanLlal dlsparlLles ln domesLlc [udgmenLs resulLlng from
baslcally slmllar facLual clrcumsLances. 1he appellaLe courLs have noL been helpful ln Lhls regard. Cur declslons and
Lhose of Lhe dlsLrlcL courLs are dlfflculL, lf noL lmposslble, Lo reconclle. 1he Lrlal courL's dlscreLlonary power ls sub[ecL
only Lo Lhe LesL of reasonableness, buL LhaL LesL requlres a deLermlnaLlon of wheLher Lhere ls loglc and [usLlflcaLlon for
Lhe resulL. 1he Lrlal courLs' dlscreLlonary power was never lnLended Lo be exerclsed ln accordance wlLh whlm or caprlce
of Lhe [udge nor ln an lnconslsLenL manner. !udges deallng wlLh cases essenLlally allke should reach Lhe same resulL.
ulfferenL resulLs reached from subsLanLlally Lhe same facLs comporL Lhe nelLher loglc nor reasonableness.
382 So.2d aL 1203.
8ack Lo 8eference
1. Lven Lhe ma[orlLy agrees LhaL Lhe moLher's worklng hours are noL "Lyplcal." 1he ma[orlLy ls of Lhe oplnlon LhaL "Lyplcal
worklng parenLs" arrlve home beLween 3:30 and 6:00 each evenlng. (Ma[. op. aL 1139).
8ack Lo 8eference