Fourth DCA Clarifies Standard of Review Applicable to Modification of Pretrial Child Custody and Timesharing Temporary Relief Orders

Bresky_Child Custody

Riddle v. Riddle, Case No. 4D16-2803 (Fla. 4th DCA Mar. 29, 2017)*

The Fourth DCA recently clarified that in modifying a pretrial temporary custody order there is no requirement for the trial court to find a “substantial change in circumstances,” and a trial court’s ruling modifying a pretrial, temporary relief order on child custody or time sharing is subject to an abuse of discretion standard of review.

In Riddle, the trial court rendered a temporary relief order during the pendency of the divorce proceedings. In the order, the trial court devised a temporary timesharing schedule and made the wife the “primary residential parent” of the parties’ two minor children. A few months later, the husband moved to modify the temporary relief order, requesting that he become the “primary residential parent.” The husband asserted that the children had to endure lengthy commutes in attending the school ordered in the temporary relief order.

Finding the commute to school not to be in the best interests of the children, the trial court granted the husband’s motion to modify the temporary relief order, which named the husband the primary residential parent and ordered the assigned school to be based on the husband’s address.

The wife appealed, claiming in part that the trial court erred in modifying the temporary relief order because it did not find a substantial change in circumstances following the court’s entry of the temporary relief order.

In its opinion, the Fourth DCA contrasted temporary timesharing orders—where courts enjoy the “very broadest discretion”—from final custody or timesharing determinations. The Court discussed its prior decision of Hoff v. Hoff, 100 So. 3d 1164, 1168 (Fla. 4th DCA 2012), where it held that a trial court does not commit reversible error if a pretrial temporary parenting plan fails to include explicit findings on the best interest of the child or on the factors listed in section 61.13(3), Florida Statutes, so long as there is competent, substantial evidence for the court’s ruling and no abuse of discretion. Consistent with Hoff, the Fourth DCA stated that “a trial court’s ruling modifying a pretrial, temporary relief order on child custody or time sharing is subject to an abuse of discretion standard of review.”

The Fourth DCA explained that the “substantial change in circumstances” test is required to modify a child custody or timesharing determination only after a final judgment or decree which determined the custody or timesharing matter. Such substantial change is necessary to overcome the res judicata effect of the final judgment. In its decision, the Fourth DCA cited to section 61.14(11)(a), Florida Statutes, which states that a “court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.”

Accordingly, the Fourth DCA concluded that there was no merit as to the wife’s contention that the trial court erred in failing to find a substantial change in circumstances when modifying its pretrial temporary relief order. Concluding that the trial court did not abuse its discretion in modifying the temporary relief order, the Court affirmed the modification order.

*The decision is not final until disposition of any timely-filed motion for rehearing.