Posted by Nydia Streets of Streets Law in Florida Child Custody
When a party appeals a Florida family law ruling, in most cases, findings of fact made by a trial judge will not be disturbed unless there is a clear error. This is because the appellate court has a policy of not wanting to substitute its judgment for that of a trial court judge who saw witnesses testify and was able to weigh the credibility of those witnesses. A recent appellate case illustrates an extreme case in which the appellate court did feel it had to overturn the trial court's ruling because it was not supported by competent, substantial evidence.
In the case Buschor v. Buschor, 5D17-155 (Fla. 5th DCA 2018) at issue was the trial court's denial of the mother's petition for relocation and the award of primary timesharing to the father even though the same was not requested in his pleadings. The testimony and evidence indicated the mother's new husband lost his employment and although he tried to find employment at a similar earning level in the same location, he was unable to. Therefore, he accepted a position in South Florida which required the family to relocate.
Historically, the father in this case had minimal timesharing which gradually increased based on his filing of petitions for modification. The appellate court's review of the history of the case left the impression that the mother acquiesced to many of the father's demands for extra timesharing, and that the father was never satisfied with the amount of timesharing he was allotted. The trial court felt the mother unreasonably denied timesharing to the father and based on this, denied the mother's petition for relocation.
In a rare move, the appellate court re-examined the evidence presented and reached a different conclusion than the trial court. The appellate court held the evidence supported the mother's petition for relocation and opined that the trial court incorrectly relied on the wrong factors to deny the mother's petition for relocation. The appellate court accordingly reversed the trial court's decision with an instruction to grant the mother's petition for relocation and to fashion a timesharing schedule based on the relocation.
Perhaps the lesson from this case is not to give up and to keep pushing if you believe in the merits of your case. Whether or not you can or should appeal your case should be discussed with a Florida family law attorney who can help you weigh the risks and benefits of proceeding. Schedule a consultation to go over your options.