Young v. Hector, 740 So. 2d 1153 (1999)

No.
96-2847
District Court of Appeal of Florida, Third District
Young v. Hector
740 So. 2d 1153 (Fla. Dist. Ct. App. 1998)
Decided Jun 24, 1998
No. 96-2847. The other spouse was an attorney, who, at the time
of the parties' marriage, had a law firm. The
Opinion filed June 24, 1998. Opinion Granting
attorney's income would vary somewhere between
Rehearing En Banc July 14, 1999. Rehearing
$30,000 and nearly $100,000 per year.
Denied September 1, 1999.
After the parties' youngest child was born, the
An Appeal from the Circuit Court for Dade
parties discussed a possible relocation to Florida.
County, W. Thomas Spencer, Judge. L.T. No. 95-
The architect told the attorney that if the attorney
1154 11308. *1154
could find a job in Miami, the architect would be
Barbara Green; Ellen Lyons, for appellant. willing to relocate. In 1989, the attorney found
employment at a prestigious, mid-sized law firm
Steel Hector Davis and Lance A. Harke, for
earning approximately $120,000 per year. Shortly
appellee.
thereafter, the attorney and the children relocated
Before SCHWARTZ, C.J., and NESBITT and to Miami, while the architect remained in New
GODERICH, JJ. Mexico for six months to finish several projects
and to sell the parties' home. In the summer of
PER CURIAM. 1992, the architect returned to New Mexico for
approximately 14 months to direct a treasure
This is an appeal from a final judgment of recovery project. During the 14-month period, the
dissolution of marriage. We reverse and remand children remained in Miami with the attorney, but
for further proceedings. the children visited with the architect
The record indicates that the parties were married approximately every five weeks.
in New Mexico in February 1982. The parties In the fall of 1993, the attorney, who by this time
have two daughters, Baylor, who was born in was earning approximately $275,000 with the
1985, and Avery, who was born in 1988. Since the mid-sized law firm, accepted a shareholder
children were born, the parties have always had position at one of Florida's largest law firms
either a live-in nanny, au pair, or housekeeper, earning over $300,000 per year. Shortly after the
who has helped care for the children. attorney accepted the position with the new firm,
At the time of their marriage, one spouse, an the architect returned to Florida. Upon the
architect, was involved in several business architect's return, the parties separated although
ventures, including a publishing company and a they both continued to live in the marital home.
custom-home building firm. The architect was The attorney filed for divorce in May 1995.
very successful until the stock market crashed in At trial, the court accepted evidence relating to
October 1987. alimony, child custody, and the equitable division
of the marital assets and liabilities. The evidence
1
Young v. Hector 740 So. 2d 1153 (Fla. Dist. Ct. App. 1998)
included the testimony of the parties, neighbors, University of Miami and Florida International
friends, the children's teacher, school counselor, University have a two-year masters program that
and the managing partner of the law firm where will teach the necessary computer skills.
the attorney is currently employed.
The record demonstrates that since returning to
The attorney testified that when the attorney is Miami in the fall of 1993, the architect has been
involved in a trial, the attorney works very dedicated to the children. For example, the
approximately 12 to 14 hours per day, six to seven architect started and led one of the children's
1155 days per week. On the *1155 other hand, when the Brownie troop, coached one of the children's
attorney is not in trial, the attorney works 45 to 50 soccer team, regularly volunteered at the children's
hours per week. Moreover, during the past two school, and takes the children to doctor and dentist
years, the attorney has had several cases that have appointments.
required the attorney to travel to Central Florida.
At trial, the guardian ad litem's report was
When traveling, the attorney would either leave
introduced into evidence, and he also testified at
Miami very early in the morning and return late at
trial. In his report, the guardian ad litem
night, or would stay in Central Florida overnight.
recommended that the attorney be designated the
The cases that required the attorney to travel to
primary residential parent and that the architect be
Central Florida have been settled, and the
granted very liberal and frequent access to the
attorney's remaining cases will no longer require
children. The report states that the architect is
the attorney to travel outside of Miami. In addition
"warmer" and "phenomenal" with the children,
to the attorney's employment at the law firm, the
and that the attorney "tends to be somewhat cooler
attorney also teaches at a law school.
by nature, but consistently spends time with the
The managing partner gave deposition testimony children and makes a point out of doing things
stating that the attorney is a senior litigation with them on weekends and when [the attorney] is
partner and is responsible for major cases. The available evenings." The guardian ad litem also
managing partner also testified that it is "very found that since the parties have been living in
easy" to accommodate family problems when an Miami, the architect "has been the dominant
attorney works in the corporate or real estate caretaker during the day, and [the attorney] on
department, but that it is "very difficult" to weekends, although both pitch in as needed." The
accommodate family problems when an attorney guardian ad litem testified that he looked at three
works in the litigation department. Further, he "determinative factors" in recommending that the
stated that the average litigation partner works 10 attorney be named the primary residential parent.
to 11 hours per day, and that litigators cannot work First, the attorney has been more economically
only eight hours per day, five days per week. stable throughout the marriage. Second, the
attorney has been "the more constant factor
The parties testified that except for a few small
throughout the entire relationship. There have
remodeling jobs, the architect has been
been times in the children's life when [the
unemployed for approximately six years. After the
architect] has been, for whatever reasons, away
architect moved to Miami, the architect attempted
from the home for substantial periods of time and
to find employment, but was unsuccessful. The
[the attorney] has been the dominant influence."
architect lacks the computer skills that are needed
Third, the attorney "controls [anger] better around
to find employment as an architect in the present
the kids."
job market. The architect testified that both
2
Isabel Singleton, a neighbor and family friend, stated that all the children in the Brownie troop,
testified that the architect pays attention to detail, including the parties' children, "adore" the
is very goal-oriented, and very caring. She also architect.
stated that the attorney is involved in the children's
Dulce del Castillo, one of the children's former
activities, plays with the children, takes them to
pre-school teachers, testified that the architect
the movies, the beach, and the zoo, and brings out
constantly volunteered at the school. For example,
their self-expression. Further, she testified that the
the architect made repairs to the classroom,
attorney is usually available on weekends and that
attended field trips, and participated in cooking
the attorney's work has not interfered with the
and art activities. Whereas, the attorney's
1156 ability to be a good parent. *1156
involvement was limited to dropping the children
Laura Mirabito, another neighbor and family off at school eight to ten times during the school
friend, testified that the architect has a very close year.
relationship with the children, coaches the soccer
Lynn Drittel, a school counselor, testified that the
team, picks the children up from school,
architect involved the children in the school's
coordinates the children's play dates, and
divorce group. Further, when she sent home
participates in school activities. On the other hand,
questionnaires, only the architect's questionnaire
she testified that the attorney is the one who
was returned. Finally, she stated that the architect
coordinates the sleepovers, and that the attorney is
volunteered for the second grade self-esteem
at home on the weekends and in the evenings.
program.
Keith Chasin, who coached in the same soccer
David Harper, a fellow parent and sports coach,
club as the architect, testified that the architect
also testified. He stated that the architect is a good
interacts with the children well and is a good
parent, a good caretaker, patient with the children,
coach. He also stated that he has never met the
and involved in the children's daily activities. He
attorney.
also testified that the attorney was involved in the
Joan Hamel, the mother of one of the children's parent-child soccer games, even though the games
best friend, testified that the architect gets to the were played in the early afternoon. The attorney
children's school functions early and videotapes also attended the Saturday games and the parent-
the children. On the other hand, she stated that she child program. Further, he stated that the architect
once saw the attorney arrive late and read law was the caretaker on a daily basis, but that the
books during the performance. Further, the attorney was available and that the children
architect is the one who usually picks up the responded well to the attorney.
children from her house; the attorney has only
Finally, Carol Lumpkin, who is a neighbor and
picked up the children approximately three times
family friend, testified that both parents are loving
in the last four years. She testified that the
and caring parents, and that both have a lot to
architect is one of the few parents who stays at
offer the children.
parties that the children attend. Moreover, the
architect is the one who leads the Brownie troop, After evaluating the relevant statutory factors of
and at one meeting, one of the parties' children section 61.13(3), Florida Statutes (1995), the trial
stated that the attorney is never home and does not court awarded primary residential custody of the
read the Brownie's paper. Further, she described children to the attorney, with frequent and
the architect as a "devoted" parent. Finally, she continuing contact with the architect. The final
order also provides that "for one year within five
years of entry of this Final Judgment but not
3
sooner than 2 years of entry herein of, primary Gary and Nancy have three children, ages
physical residence of the children shall be with the 12, 9, and 3. Gary is a high-school
[architect]." The trial court denied the architect's graduate and Nancy, a veterinarian. For the
request for permanent alimony, but granted the first four years after their first child was
architect four months of rehabilitative alimony at born, Gary worked outside the home and
$2,000 per month. The trial court also distributed Nancy was the primary caretaker of the
the parties' marital assets and debts. Finally, the children. When their second child was one
architect was awarded $10,000 in attorney's fees. year old, they decided to switch roles
The architect appeals from this final judgment. because of Nancy's greater earning
capacity. After eight years of this
The architect contends that the trial court abused
arrangement, Gary and Nancy separated.
its discretion by granting primary residential
Each wants primary custodial
custody of the children to the attorney. We agree.
responsibility for the children. Nancy
1157 *1157
argues that since she gave up being the
A trial court's determination of custody "is subject primary caretaker for the benefit of the
to an abuse of discretion standard of review." family and not because of personal
Sullivan v. Sullivan, 668 So.2d 329, 330 (Fla. 4th preference, Gary should not be favored . . .
DCA 1996) (citingCanakaris v. Canakaris, 382 based on his larger caretaking role.
So.2d 1197 (Fla. 1980)). An appellate court must
Nancy's fairness argument is irrelevant to
affirm if there is substantial competent evidence to
how custodial responsibility should be
support the trial court's finding that the custody
allocated . . . . The court should allocate
award was in the best interests of the child. See
custodial responsibility based on the
Duchesneau v. Duchesneau, 692 So.2d 205, 206
parents' past caretaking roles.
(Fla. 5th DCA 1997); Cherradi v. Lavoie, 662
So.2d 751, 753 (Fla. 4th DCA 1995); Gardner v. Principles of the Law of Family Dissolution:
Gardner, 545 So.2d 339, 340 (Fla. 4th DCA Analysis and Recommendations, Tentative Draft
1989); Quirino v. Quirino, 459 So.2d 1183 (Fla. No. 3, Part I, American Law Institute, § 2.09, at
3d DCA 1984). 121 (1998).
A trial court's decision as to which parent should In the instant case, the trial court's award of
be awarded primary residential custody of the primary residential custody of the children to the
children should attempt to preserve and continue attorney has the effect of not continuing the
the caretaking roles that the parties had caretaking roles that the parties had established. It
established. Such a continuation would clearly be is clear from the record that it is the architect who
in the best interests of the children. The American is available to the children after school, takes the
Law Institute has addressed this issue in its children to the doctor and dentist appointments,
Illustrations: and actively participates in the children's school
and after-school activities.
Moreover, the guardian ad litem's testimony

indicates that one of the "determinative factors" in
recommending that the attorney be designated the
primary residential parent is that the attorney has
been more economically stable throughout the
marriage. In light of the child support guidelines, a
parent's financial resources (or lack of) should not
4
be a "determinative factor" in deciding which inequitable, and the award of attorney's fees to the
parent should be the primary residential parent. architect was insufficient. On remand, the trial
Principles of the Law of Family Dissolution: court should revisit these issues along with the
Analysis and Recommendations, Tentative Draft issue of child support, especially in light of this
No. 3, Part I, American Law Institute, § 2.14, at Court's disposition as to primary residential
250 (1998). A parent's financial resources is only custody. Therefore, we reverse these awards and
one factor that must be balanced with the remand for further proceedings, including
remaining statutory factors outlined in section evidentiary hearings, if necessary.
61.13(3), Florida Statutes (1995). When balancing
Reversed and remanded.
the statutory factors, the fact that one parent is the
primary caretaker should always outweigh the fact
PER CURIAM.
that the other parent is more financially stable.
The record in the instant case clearly indicates that ON REHEARING EN BANC
the architect, although not as financially fortunate
as the attorney, has always, as the primary
GREEN, J.
caretaker, provided the children with food,
clothing, shelter, and medical attention. The record Upon our rehearing en banc of this cause, we
clearly indicates that the architect, with an withdraw the prior panel opinion issued on June
adequate amount of child support, would continue 24, 1998 and substitute the following opinion in
to provide for the children. its stead.
Moreover, the guardian ad litem's The former husband/father (Robert Young)

recommendation was also based on the fact that appeals from the final judgment of dissolution of
1158 architect has been "away from the *1158 home for marriage. We affirm the trial court's decision
substantial periods of time and [the attorney] has designating the former wife/mother (Alice Hector)
been the dominant influence." Under the as the primary custodial parent of the two minor
circumstances of this case, the fact that architect children but reverse and remand the court's
was away from the home prior to the separation determination as to rehabilitative alimony,
should not be a "determinative factor" where the distribution of the parties' assets and liabilities and
architect has continually been the primary attorney's fees for further proceedings.
caretaker since the fall of 1993.
The father's main contention on this appeal is that
Therefore, after reviewing the record, including the trial court abused its discretion when it
the testimony of the parties and other witnesses, awarded custody of the minor children to the
we find that the trial court abused its discretion by mother. We do not agree. After laboriously
awarding primary residential custody of the minor reviewing all of the record evidence in this case,
children to the attorney. However, on remand, the we conclude that there was substantial competent
trial court should grant the attorney liberal and evidence to support the trial court's discretionary
frequent access to the children. call in this regard. Thus, there is no basis for us to
overturn the lower court's decision.
Finally, the award of alimony to the architect was
inadequate in light of the rehabilitative plan As we see it, the child custody issue in this case,
presented by the architect and the lifestyle with all its attendant notoriety, centers only around
established during the parties' marriage,Canakaris our standard of review as an appellate court. The
v. Canakaris, 382 So.2d 1197 (Fla. 1980), the simple issue for our consideration is whether the
distribution of the parties' assets and liabilities was trial court abused its discretion when it determined
that the best interests of the two minor children
5
dictated that their mother be designated their of her two minor children (now grown) from her
primary custodial parent. See Canakaris v. first marriage which she successfully reared while
Canakaris, 382 So.2d 1197, 1203 (Fla. 1980); simultaneously juggling the demands of her law
Grant v. Corbitt, 95 So.2d 25, 28 (Fla. 1957); practice.1
Sullivan v. Sullivan, 668 So.2d 329, 329-30 (Fla.
1 This certainly was a valid consideration
4th DCA 1996). If there is substantial competent
which could have factored into the lower
evidence to support the trial court's determination,
court's determination as to the custody of
it is firmly established that a trial court cannot be the minor children in this case.
deemed to have abused its discretion and its ruling
must be left undisturbed on appeal. See Canakaris, Hector and Young became the parents of two
382 So.2d at 1203; Dinkel v. Dinkel, 322 So.2d daughters born in 1985 and 1988. After the birth
22, 24 (Fla. 1975); Bader v. Bader, 639 So.2d 122, of their children, both parents continued to work
124 (Fla. 2d DCA 1994) (en banc);Jones v. Jones, outside of the home and pursued their respective
633 So.2d 1096, 1099 (Fla. 5th DCA 1994); Ross professional endeavors with the assistance of a
v. Ross, 321 So.2d 444 [ 321 So.2d 443], 444 (Fla. live-in nanny, au pair, or housekeeper. As typical
3d DCA 1975). Appellate courts are never working parents, they would both arrive home
permitted to retry a court's determination in this between the hours of 5:30 and 6:00 each evening.
1159 regard de novo or reweigh the evidence. *1159 See Both contributed to and shared in the household
Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st expenditures at all times.
DCA 1974) (stating "[i]t may well be that were we
Sometime in late 1987, the father's business
permitted to hear the case de novo we might enter
ventures began to suffer certain financial reversals
a different final judgment. However, such is not
and the mother became bored with her practice in
our prerogative."); see also Miller v. Miller, 371
New Mexico. Both parties agreed to relocate to
So.2d 565, 566 (Fla. 4th DCA 1979) (holding that
Miami. Although there is a complete conflict in
appellate court may not substitute its judgment for
the record between the parties as to who broached
that of trial judge).
the subject of the couple's relocation to Miami and
At the outset, it is important to emphasize that the circumstances under which they would
both the mother and father are very loving and relocate in terms of their respective careers, it is
capable parents. Nobody disputes this fact, which significant that neither of these parties ever
alone made the trial court's determination all the testified that they ever agreed or expected the
more difficult. What then tilted the scales in favor mother to pursue her legal career while the father
of awarding custody to the mother? The father remained at home as the full-time caregiver to
suggests that it was gender bias. The record their minor children. To the contrary, the father
evidence, however, simply does not support this actively pursued job leads in the Miami area prior
suggestion. to the couple's relocation.
I In June 1989, the mother and her two minor

daughters arrived in Miami first. During that
At the time of their marriage in 1982, both the
summer, she studied for and took the Florida Bar
father and mother were successful professionals in
exam and landed a position with a mid-sized law
New Mexico. He was an architectural designer
firm. The father stayed behind in New Mexico
with his own home design firm as well as an
until October 1989 in order to complete the
entrepreneur with a publishing company. She was
construction of a new house and to remodel the
an attorney in private practice at her own firm.
couple's New Mexico home in order to enhance its
Their marriage was a second for both. He had no
resale potential.
children from his first marriage. She had custody
6
After the father's move to Miami in the fall of during this fourteen month period once every five
1989, he studied for and passed the Florida weeks and according to the mother, only at her
contractor's examination. Thereafter, during the insistence and pursuant to her arrangements for
spring and summer of 1990, the father spent his such family reunions.
time repairing the couple's first marital residence
When the father finally returned to South Florida,
in Miami. Thereafter, he renovated the home
in the fall of 1993, the mother had accepted a
which ultimately became the couple's second
partnership position with a large Florida law firm
marital residence. It is significant to point out at
at a salary of approximately $300,000 annually.
this juncture, that it is undisputed that from the
Even with the mother's salary increase, the family
time the minor children were brought to Miami in
remained steep in debt. At that time, the couple no
1989 until the fall of 1993, the needs of the minor
longer had a live-in nanny or babysitter for the
children were attended to by a live-in housekeeper
children. The children were in a public school full-
when they were not in school during the day and
time between the hours of 8:30 a.m. and 2:00-3:00
by the mother upon her arrival from work in the
p.m. The mother had employed a housekeeper
evenings.
("Hattie") who came to the house each weekday
After the father's renovations to the couple's between the hours of noon and 8:00 p.m. to clean,
1160 second Miami residence were completed *1160 and pickup and babysit the children after school. The
the family moved in, the mother testified that she mother's time with the children during the
began to have serious discussions (which weekdays consisted of her awakening, dressing,
eventually escalated into arguments) about the and having breakfast with them prior to
father's need to find gainful employment. transporting them to school, and spending the
Although the mother was earning a very decent early evening hours with them prior to their
income as an attorney at the time, it was bedtime. The mother engaged in activities with the
undisputed that this family was operating with a children on a full-time basis on the weekends.
negative cash flow. When the children became ill or distressed during
the middle of the night, the mother was always the
Rather than pursue gainful employment to
parent they looked to for assistance or solace.2
financially assist the household and his minor
children, the father turned his attentions 2 The fact that the children deemed their
elsewhere. During the remainder of 1990 through mother to be the "go to" parent when they
1993, the father left the state and was frequently were ill or distressed during the night
away from the mother and minor children for speaks volumes about which parent they
months at a time. During this time, he returned to deemed to have been their constant
caregiver. Moreover, it supports the
New Mexico to attend to lingering matters
guardian ad litem's observation that the
involving his prior businesses there and to make
mother had been "the more constant factor
preparations for an upcoming treasure hunt. He
throughout the entire relationship."
also visited his sick brother in Arkansas and later
handled his brother's estate matters upon his Approximately one month after the father's return
brother's demise. During this time, the father spent to the household in 1993, the mother asked the
approximately fourteen months away from his father for a divorce because of his continued
family pursuing buried gold in New Mexico on a refusal to seek gainful employment and due to his
treasure hunt. The minor children were extramarital affair in New Mexico. It must be re-
continuously being cared for by the emphasized that at no time did the mother and
housekeeper/babysitter during the day and the father have any mutually expressed or tacit
mother after work. The father saw his family agreement for the father to remain unemployed.
7
The father candidly conceded as much at trial.3 4 As the father testified:
Consequently, this case simply did not involve the

[Q] In the evenings, when Alice
typical scenario where two spouses, by mutual
comes home, do you pretty much
agreement, agreed for one to remain at home to absent yourself since the time that
care for the children and the other spouse to work she's indicated that she wants this
1161 outside of the home. *1161 divorce?
3 [Q] You testified that you had tried to get
Alice to put together a budget and typically

[A] Yes and no. She, a lot of
she would say to you, "We don't have that
times, likes to sit down have a
much money."
little time to herself and eat
dinner and not be bothered. Then
Did she not every time follow it
after that she will engage the kids.
up with a comment, "And you
And I will either leave the house
need to go to work?"
and leave her with the kids or I
may go to my room or I may go
[Father] No. to the study and close the door. I
don't generally sit down next to
her and say, "Let's all play this
[Q] Did she ever suggest to you game together." Yes, I try to give
you needed to go to work? her space with the kids, as I
mentioned earlier. I don't compete
with her, either.
[Father] Yes.
[Q] Do you spend most evenings

[Q] On more than five
and some nights away from the
(objections/occasions) [sic]?
home?
[Father] Oh, yes, when she filed

[A] Most evenings, I don't know.
for divorce, it was a lot more than
I spend, because of the situation,
five occasions.
a good deal of time away after
she comes home.
Once the mother announced to the father that she
wanted a divorce, the father began to spend less of The father nevertheless maintained that he was the
his time away from Miami. Although he "primary caretaker" or "Mr. Mom" of these two
steadfastly refused to make any efforts to obtain children in the three years preceding this
employment, he did become more involved in the dissolution proceeding. The trial court viewed this
activities of his two daughters, who by that time, contention with some degree of skepticism as it
were 8 and 5. Since both girls were in school full- was entitled.5 The trial court's skepticism or
time at this time, the father's involvement with the
disbelief was not at all unreasonable, given the
girls' activities occurred primarily Mondays
father's admission that the nanny, Hattie, had taken
through Fridays between the hours of 3:00 p.m.
care of these children in large part during the
and 6:30 p.m., prior to the mother's arrival from
afternoon hours until their mother's arrival at
work. Upon the mother's arrival at the home, the
home. The father's concession is what prompted
father generally absented himself.4
8
the court to ultimately make inquiry as to why the [Father]: Well, because my background is
father did not seek employment or alternatively, architecture. That's my degree, but when I
why there was a need for a full-time nanny: graduated, they did not have computers.
5 The trial court's skepticism about the
Today, it's computer dominated and I'm
computer illiterate.
father's "actual" availability for the
children during the day was also borne out I, in talking to Larry Foreman, who was
by an observation made by the guardian ad
court appointed as the career consultant,
litem in his report. The report indicated
anticipated that I should go to graduate
that the mother was late for her scheduled
1162 *1162 school to acquire these skills that I'm
appointment with the guardian because
lacking right now.
upon learning that the youngest child had
become ill during school, the mother had to I've gone on interviews. They like me.
arrange for her brother to pick up and care They like what I have to offer but their
for the child until back up help became
offices are basically all computerized.
available, due to the unavailability of the
father. Previously, because of the number of hours
Ms. Hector worked, I filled in. Ms. Hector
****
has a secretary that handles her whole life
[Father's attorney]: Who picks the kids up? at the office and in a sense I was the
secretary that handled her whole life at
[Father]: Either Hattie or I. Typically, it's home and took care of the children.
me. If I am tied up, whether it's a meeting
or whatever, or if I go somewhere like [The Court]: But you've got a nanny doing
your office, way up in North Miami Beach, that.
and I don't get back in time and I thought I
[Father]: No sir, I don't believe you can
would, I can call Hattie and say, "Hattie,
buy parents. Nannies can pick up. They
please pick up the children." She does. She
can drop off.
picks them up frequently.
[The Court]: Why [sic] do you need the
[The Court]: Is Hattie there five days a
nanny for, if you're there doing it?
week?
[Father]: She cooks. She cleans. I could do
[Father]: Yes sir. She comes at noon every
a lot of that. Typically, people that have
day. She cleans the house in the
incomes of over a quarter of a million
afternoons. She prepares the dinners. The
dollars or $300,000 can afford the luxury
kids eat. We eat. I eat with the children
of having help, hired help.
every day typically at 6:30. She cleans up
after that. I am not the kind of person that sits around
and watches soap operas. I try to do
She'll draw a bath for Avery and she leaves
meaningful, worthwhile things.
at eight o'clock in the evening five days a
week. [The Court]: Go ahead, counsel.
[The Court]: Maybe I'm missing ****

something. Why don't you get a job.
Contrary to the father's suggestion on appeal, this
inquiry by the court is not evidence of gender bias.
Given the undisputed large financial indebtedness
9
of this couple, the trial court's inquiry about the was employable and the family needed the
need to employ a full-time nanny was both logical additional income. The trial court concluded that
and practical under these circumstances and the father was "where he is largely because of his
certainly could have also been appropriately posed own choice." The trial court was obviously not
to the mother if she had been recalcitrant about oblivious to the fact that the father was also a
seeking gainful employment to assist the family's Florida licensed contractor who had built homes in
financial situation.6 New Mexico and renovated both of the parties'
Florida marital residences. Given the father's skills
6 Interestingly, the father's own attorney
and experience, the trial court was certainly
conceded in closing argument that the
entitled to reasonably conclude that the father was
father needed to be gainfully employed.
employable upon his return to Miami in 1993 —
He needs to do that [find one year after Hurricane Andrew literally
employment] and I'll be the first destroyed thousands of residences and commercial
to admit it and he's not going to establishments in South Dade County and building
do it while the divorce is pending contractors were in heavy demand. Given a choice
and he's certainly not going to between the mother, who maintained constant
do it with two little children that
steady employment throughout the marriage to
he has to care for starting at
support the children (regardless of the amount of
three o'clock every day but, if
1163 her income), and the *1163 father who unilaterally
he's willing and motivated, I think
and steadfastly refused to do the same, the trial
he could find a position that
court's designation of the mother as custodial
would allow him to have more
time with the children at least
parent cannot be deemed an abuse of discretion.7
than a 9:00 to 5:00 position and See § 61.13(3)(c), Fla. Stat. (1995).
maybe even more than that. He 7 It is interesting that both, the guardian ad
might get lucky. He might find
litem and the father's own attorney
someone that's willing to
recognized the unreasonableness of the
accommodate him.
father's proposed plan to remain at home
full-time with the children as their
II
custodial parent without gainful
Apart from this evidence, the court also had the employment. The guardian ad litem
report and recommendations of the guardian ad observed in his report the following:
litem upon which to rely. In recommending that
the mother be named the primary custodial parent, Finally, it is my belief that the
Husband's plan to remain a full
the guardian ad litem cited three factors, all of
time parent is unrealistic; and
which we find are supported by competent
although he rationalizes that
substantial evidence in the record. First of all, the
things would be different if he
guardian noted that the mother had been the more
were a woman, I don't believe
economically stable of the two parents throughout
that the Court would treat a
the marriage. We do not believe that the guardian woman with the same
gave the mother the edge simply because she background and qualifications
earned a large salary. We believe, that what the any differently from a man, in the
guardian was attempting to convey was that the absence of an agreement between
mother had shown a proclivity to remain steadily the parties, which both sides
employed, unlike the father who unilaterally agree does not exist; . . .
removed himself from the job market, although he
10
effort to maintain continuity, could have

Similarly, during closing arguments, the legitimately determined that the children's best
father's counsel observed: interests dictate that they remain with the parent
Essentially it's an economic issue who had continuously been there to care for their
versus a time issue. Mr. Young's needs throughout their young lives rather than the
position right now, which we all parent who had devoted a substantial amount of
agree is unreasonable, is the best time with them perhaps only when it was
for the children. convenient and/or opportunistic to do so. See §
61.13(3)(d), Fla. Stat. The record evidence clearly
If you were to stay home and be
supports the trial court's conclusion that the
supported and be with the mother had been the constant parent throughout
children and get rid of the the children's lives. Thus, there was no basis for
housekeeper that would be the the panel to overturn the trial court's finding in this
best scenario. I don't think that's a regard.
fair scenario. I don't think anyone
The last factor cited by the guardian ad litem,
is suggesting it.
which tilted the scale in favor of the mother, was
The second factor relied upon by the guardian ad the mother's superior ability to control her anger
litem in recommending that the mother be around the children. The guardian ad litem
declared the primary custodial parent was the fact testified that he personally witnessed one of the
that the mother had been a constant factor and father's outbursts of anger in the presence of the
dominant influence in the children's lives and the children. For that reason, the guardian, who is also
father had not. The guardian ad litem observed: a retired circuit court judge, went so far as to
recommend that the father receive anger control
There have been times in the children's life
counseling.
[sic] when Bob has been, for whatever
reasons, away from the home for Given this substantial competent evidence in the
substantial periods of time and Alice has record, we cannot conclude that the trial court
been the dominant influence. abused its discretion when it awarded custody of
the minor children to their mother. Nor can we
More recently, while she has been
conclude that the court's determination was
working, he has been available at home
impermissibly influenced by gender bias against
more hours of the day than she has been,
the father.
but over a continuum of time, I believe
that her presence has been a more steady Custody determinations are perhaps the most
presence in the sense of available almost sensitive and delicate decisions that family court
the same time for the kids throughout the 1164 judges make. We *1164 recognize that at times, it
relationship, whereas Bob has been can be a very difficult and agonizing call for the
intensely absent and intensely present. trial judge to make when both parents are as
loving and caring as the mother and father are in
In its determination as to the best interests of the
this case. Nevertheless, once the trial court makes
minor children, the trial court obviously deemed it
this decision and the decision is supported by
more important to assess the children's time spent
substantial competent evidence, we recognize that
with each of the parents throughout the course of
the trial court's determination should not be lightly
the marriage and not merely focus on the years
second-guessed and overturned by an appellate
immediately preceding the announcement of the
court merely reviewing the cold-naked record.
dissolution action. That is, the trial court, in an
11
Indeed, the trial court has the unique advantage of that the pivotal issue involved in this case can, and
meeting both parents prior to making its decision. must, be resolved by going through the simple
Thus, the trial court, unlike an appellate court, is exercise of examining the trial court's decision
entitled to rely, not only upon the record evidence according to the appropriate standard of review
presented, but upon its mental impressions formed that this Court must follow.
about each of the parents and their respective
Simply put, there is more than substantial
parenting strengths and weaknesses. Moreover,
competent evidence to support the trial court's
trial judges sitting as triers of fact in these
decision to name the mother as the primary
proceedings are not required to shed their common
residential parent of the children in this case.
sense and life's experiences when they don their
Furthermore, the record does not reflect any abuse
black robes to preside over these proceedings. As
of discretion by the trial court in reaching that
long as the trial court's decision is supported by
decision.
substantial competent evidence and is not based
upon legally impermissible factors such as gender While there is probably also an appropriate
bias, it must be affirmed on appeal. For this quantum of evidence that would have supported
reason, we affirm the order awarding primary naming the father as the primary residential
residential custody of the minor children to the parent, the trial court, after hearing and weighing
mother. However, on remand, the trial court all of the evidence, determined that it was in the
should grant the father liberal and frequent access best interest of the children to name the mother as
to the children. the primary residential parent.
III Clearly, this Court cannot second-guess the

Finally, we agree that the award of alimony to the decision of the trial court as, I respectfully
father was inadequate in light of his rehabilitative suggest, the original panel opinion did. Rather, as
plan presented to the court and the lifestyle stated above, this Court's function is limited solely
established during the parties' marriage.Canakaris, to reviewing the decision of the trial court in light
382 So.2d at 1201-05. Moreover, the distribution of the appropriate standard of review.
of the parties' assets and liabilities was inequitable The record in this case is replete with "substantial
and the award of attorney's fees to the father's competent evidence" that supports the decision of
lawyer was insufficient. On remand, the trial court the trial court. Such evidence includes the
should revisit these issues. Thus, we reverse these testimony of the Guardian Ad Litem, the mother
awards and remand for further proceedings, of the children, several neighbors of the parties, as
including evidentiary hearings, if necessary. well as the father himself. The following is a
1165 summary of various portions of the *1165 record
Affirmed in part and reversed and remanded in
part. that support the trial court's decision:
JORGENSON, COPE, LEVY, GERSTEN, Ira Dubitsky (Guardian Ad Litem)

FLETCHER and SORONDO, JJ., concur. ("GAL")
Volume V. of Record, Page 23, Lines 22-

LEVY, Judge (specially concurring). 25 and Page 24, Lines 1-6 of Transcript.
I endorse and agree with the majority opinion. I Volume V. of Record, Page 25, Lines 14-
write separately only to express my strongly held 25 and Page 26, Lines 1-4 of Transcript.
view that, despite all that has been said about the
peripheral implications of this case, the reality is Volume V. of Record, Page 26, Lines 15-
19 of Transcript.
12
Volume V. of Record, Page 32, Lines 13- ". . . each of the parties harbors a good deal
16 of Transcript of anger towards the other and what is
apparent to me objectively is that they
Volume V. of Record, Page 37, Lines 7-13
handle the anger differently. Alice controls
of Transcript.
it better around the kids."
Referring to custody:
"When you listen to him [the former
Q: "And what was your recommendation, husband] talk about her, she's the greatest
sir?" lawyer in the world and each of them
acknowledges that the other is very good
A: "That the primary residential
with the kids and so on and so forth."
responsibilities for the children should be
with Alice; that Bob should have A: "Certainly, Alice has pretty consistently
extremely liberal access to the children, been available on weekends, and the
including daily contact, and that I feel it's beauty of the situation, as far as I'm
extremely important that the two parties concerned, has been the existence of Hattie
remain in close proximity to one another [the parties' housekeeper], who has been a
physically, because I think that each of very stable influence and fills a role that
them brings something completely you have in many homes where you've got
different to the table, both of which gives a two working parents, which is that she
tremendous amount to the kids." takes up the slack."
Describing the basis for his Volume V. of Record, Page 39, Lines 5-15
recommendation that primary residential of Transcript.
custody be given to Alice Hector, the
Q: "As a final question, your
"GAL" stated:
recommendation, according to your report,
". . . Number one, very clearly, she has is that the children would be best off with
been the more economically stable of the Ms. Hector as primary residential parent,
two throughout the relationship. as the situation exists today, obviously."
Number two, she has been, I think, the A: "Yes."

more constant factor throughout the entire
Q: "Is it implied in that recommendation
relationship. There have been times in the
that Mr. Young is also capable and suitable
children's life when Bob has been, for
as a residential parent?"
whatever reasons, away from the home for
1166 substantial periods of time and Alice has *1166
been the dominant influence . . . over a
A: "Absolutely. This is one of the
continuum of time, I believe that her
situations where whatever the judge rules,
presence has been more steady presence in
as far as I'm concerned, the kids are going
the sense of available almost the same time
to do fine."
for the kids throughout the relationship,
whereas Bob has been intensely absent and Alice Hector (mother).
intensely present."
25 of Transcript.
13
Volume V. of Record, Page 47, Lines 10- Q: "What role have you taken regarding
25 and Page 48, Lines 1-11 of Transcript. the children's food throughout their lives?"
Volume V. of Record, Page 50, Lines 7-25 A: "Well, throughout much of their life
and Page 52, Lines 2-7 of Transcript. they have had a person who would make
their dinners. I make their breakfast most
"I'm actively involved in their education. I
of the time and help them make their
spend a lot of time talking with them and
lunches most of the time . . . I would say
working with them on the schoolwork,
that the vast majority of cooking that's
trying to figure out if they're having
done when you don't have live-in help is
problems and trying to remedy those
done by me."
problems, if they have it."
Q: "What role, if any, have you played in
"I spend a lot of time with them. Virtually
regard to their shelter since they were
every vacation I take is with my children. I
born?"
see them almost every morning. I mean,
1167 there are some mornings when I'm out of *1167
town, but assuming I'm in town, I wake up.
I get up with them. I wake them up. I give
20 of Transcript
them breakfast. I usually drive them to
school unless I have to be somewhere too Volume V. of Record, Page 173, Lines 6-
early for that. 11 of Transcript.
I see them as soon as I get home in the A: "Since we moved to Miami (from New
evenings and spend all of my time with Mexico) I've been virtually the sole person
them until they go to bed. I read with who has contributed to providing the house
them; do homework, with them. And and paying for the house . . . I know we
virtually every weekend, I spend almost talk a lot [referring to former husband and
the entire weekend with them. Maybe once herself] about what goes on in school, who
a month, I do some adult activity where their friends are, what boys they like, what
the children don't go, or sometimes they go things they want to do, what presents they
and do things with Bob where they go want to have, where they want to go and
someplace separate, but at least every who they want to be with, and I'm very
weekend I spend the entire weekend, and actively involved in what they do and very
usually if I go someplace to see friends or interested."
go any place, it's usually in the company of
Referring to parental responsibilities of the
my children."
parties regarding when a child is ill, and
Q: "In what way have you contributed, and other parental obligations.
when I say that, I don't mean that in solely
A: "Frequently I'm up all night. If they're
on economic terms, obviously, to meeting
sick overnight, I'm up with them most of
the medical needs of your children?"
the night or whatever time they're up."
A: "Well, I think that I'm the one who
Q: "You testified that during at least the
watches out for those things. I mean, if one
last two years, you purchased the
of my children wakes up in the middle of
children's clothing, you take them for their
the night and gets sick to their stomach,
haircuts and other items such as that.
they wake me up and I take care of them."
14
Is the reason that you do that because you A: "In the case of Alice, I don't see any
have the money and Mr. Young doesn't?" difference. I mean, she has always been
heavily involved with the kids on the
A: "I think that I have always done that. I
weekends.
have always taken them shopping for their
clothing. I can't remember an instance The only time she's not involved with the
when Mr. Young did that, other than when kids is when she is on business."
he was traveling. When he travels with the
...
children, they may go shopping
someplace." Q: "What are the circumstances where you
would normally see Alice when she's away
A: "I leave the house generally at about
from the home?"
8:10, 8:15 with the girls, drop them off at
school, and get downtown sometime A: "She might come to my house or we
between 9:00 and 9:15, depending on the might go to the movies or grab a bite to
traffic. I usually leave the office some time eat. Very informal."
between 5:30 and 7:00, depending upon
Q: "Do you normally have your children
the day and what I'm doing."
with your, hers and yours when you are all
Isabel Singletari (parties' former neighbor; together?"
called by Alice).
A: "Yes. Most of the times, yes."
Q: "Would you say that it was more usual
13 of Transcript.
to see Alice with her children than not?"
A: "Definitely, because when she's not
25 and Page 231, Lines 3-7 of Transcript
working, she's with her kids. When she's
Q: "What have you commented or working, I don't see her unless I come
observed regarding Alice's style of down to her office.
parenting."
So basically when I see her, the kids are
A: "Alice is very good at instilling in the around."
kids sort of their own self-expression and
Q: "What activities have you done with
she participates a lot.
Alice and her girls?"
In other words, if they are doing puzzles, if
1168 *1168
they are doing crafts, she draws a lot of the
kids out, whether it is to take them to the A: "The zoo, the beach, the movies,
zoo or whatever. She gets into the kids and endless crafts, endless puzzles. I can't even
draws out what's in them. So there's, I begin to tell you, but just plays, skits."
guess, more involvement from that aspect; Laura A. Mirabito (parties' neighbor,
less task-oriented." called by Robert).
Q: "Have you observed any difference in Volume VI. of Record, Page 265, Lines 4-
the amount of time either parent spends 10 of Transcript. Referring to her daughter,
with the children since the announcement Regina, and the Hectors' daughter, Avery.
of the divorce?"
15
Q: "Laura, on the weekends when Regina "Her [referring to the mother, Alice
comes over to play with Avery, is Alice Hector] parenting is engaging. She loves to
normally at home and with them?" play games with the kids. Alice loves
jigsaw puzzles and loves to bring the kids
A: "Yes."
into that and do stuff together and do
Q: "On the evenings, when Regina has activities together and play games with the
spent the night, is Alice always in the kids. And Alice is a reader. She loves to
home with them?" read, which is why a lot of instances
maybe she's distant, but the wonderful
A: "Yes."
thing about that is reading is wonderful
Robert Young (father).Volume VI. of and she has instilled — and I say "she"
Record, Page 360, Lines 14-16 of read to the kids, too, but Alice is more
Transcript. focused on the reading with them than I
have been because she loves to read so
Volume VI. of Record, Page 449, Lines 1- much that she loves reading with the kids."
11 of Transcript.
"Maybe the children should stay with
Volume VI. of Record, Page 460, Lines Alice until I get it done [referring to
19-25 and Page 461 Lines 1-5 of finding employment] and the day I have
Transcript. the job they [referring to the children] can
Volume VI. of Record, Page 471, Lines come live with me." Carol Lumpkin
19-21 of Transcript." . . . [P]art of why I (parties' neighbor; called by Robert).
married Alice is she's an absolutely Volume VI. of Record, Page 380, Lines 11-
wonderful mother, and I could see in her 20 of Transcript.
being the mother of my children. That's
never been an issue." Q. "Have you had an opportunity to
observe Ms. Hector with her children?"
Q. "During the last few years what has
been your normal day with the children?" A. "Yes, I have."
A. "Well, the mornings vary. When Alice Q. "Could you tell me what you've
is there — she's a morning person. She observed?"
always has risen before me. I'm a night
A. "She's a very good mother. She spends
person and I typically always have gone to
as much time with her children as she can
bed after her.
and I think that she's very loving and
And so if she's there, she will awaken the caring with them, also.
children and that's like some of her quality
I think both parents in this case have very
time with the kids in the morning and
different things to offer these children but
they'll have breakfast together. She'll drop
they both have a lot to offer these
them off at school on her way to work."
children."
1169 *1169
As I indicated above, I believe the record would

also have supported the trial court if the father had
been named as the primary residential parent.
16
Notwithstanding that belief, I note that the record would do this and I experienced it myself where
contains negative testimony about the father's he would say things in the presence of the children
qualifications to be the primary residential parent. that indicated to me his anger and his displeasure
While I do not believe that these negative factors at what he perceives to be the financial inequities
should, standing alone, prevent the father from of the situation . . . was concerned about this
being named the primary residential parent, when underlying anger to the point where I
viewed in the context of the entire trial, as the trial recommended to him that he get some
judge would have viewed them, these negative counseling."
factors, when considered in connection with all of
Q: "Did you discuss with him [Robert
the preceding testimony about the mother, clearly
Hector] his plans as far as finding a career
can be viewed as part of the basis for the trial
that would accommodate the children?"
judge's conclusion that it would be in the best
interests of the children for the mother to be A: "Extensively."
named as the primary residential parent.
Q: "Did he indicate to you that he was
Solely for demonstrating what I believe to be the willing to do that?"
correctness of the comments that I have expressed
A: "He did, but he was kind of vague about
in the preceding paragraph, the following is a brief
it. What he said was he wanted to get into
summary of portions of the record that reflect
some sort of contracting thing where he
negatively on the father's ability to be named the
could like build a house in the
primary residential parent:
neighborhood of his own house; then leave
Ira Dubitsky (Guardian Ad Litem) the job site, come home, and stuff like this
("GAL") and I don't know how realistically a plan
that is, quite frankly."
25, Page 27, Lines 1-22, and Page 28, Alice Hector (mother). Volume V. of
Lines 1-3. Record, Page 57, Lines 5-9.
Volume V. of Record, Page 34, Lines 18- Volume V. of Record, Page 168, Lines 23-
25 and Page 35, Lines 1-3. Answer of 25 and Page 169, Lines 6-17 of Transcript.
"GAL":
"When I have come home after dinner
". . . each of the parties harbors a good deal most of the time, most of evenings after I
of anger towards the other and what is come home, I have spent with them and he
apparent to me objectively is that they [the father] has done other activities, you
handle anger differently. know, done business on the phone or gone
out or things like that . . ."
Alice controls it better around the kids . . . [her
1170 anger] did not carry over to her conversations with *1170
the children or the way it affected the children.
Q: "You testified that you take care of the
Bob, on the other hand, also is very angry. He medical needs for the children.
feels economically dependent. He feels that he is a
Does that mean that Mr. Young does not
victim and that he has not been treated right
pay attention to their medical needs?"
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
17
A: "I would say that he doesn't recognize For all of the foregoing reasons, as well as the
their medical needs as readily as I do. I very cogent discussion of the facts and law
would say that he doesn't — it's just not contained in the majority opinion, I strongly agree
something that he pays attention to as that the original panel opinion rendered by this
much as I do." Court on this case must be reversed and the
decision of the trial court, to name the mother as
the primary residential parent, must be affirmed.
24; Page 183, Lines 8-11 of Transcript.
Q: "Do you know of one instance where he SORONDO, J. (concurring).

[the father] neglected the medical needs
I agree with the majority and write separately only
for the children?"
to address those portions of the dissents which
A: "I know that on many instances I've rely on the original panel's opinion.
said, `They really have to go to the doctor
The original panel opinion states that "a trial
today.' I will have mentioned it a couple of
court's decision as to which parent should be
times. She's [referring to their children]
awarded primary residential custody of the
sick for over a couple of days, and then I
children should attempt to preserve and continue
might get insistent, and that's happened a
the care taking roles that the parties had
number of times.
established. Such a continuation would clearly be
I know I'm usually the person who in the best interest of the children." On rehearing,
indicates that they are at a level that they Mr. Young has embraced this reasoning, but the
need to go to the doctor and I think record reflects that this was not his position below.
virtually every time they have gone, they During trial, Mr. Young testified that he wanted to
need antibiotics. I mean, it was something be the primary residential parent for the children.
that they needed to be at the doctor for He also recognized that he was confronted with
soon. It was something that could not be the considerable task of re-integrating himself into
cured without going to the doctor." the labor force. As concerned future employment,
he testified that he had three possible choices: 1)
". . . I wouldn't necessarily call them
architecture, 2) construction, or 3) working in an
fights, but during the period of time, the 13
entrepreneurial manner for himself. He observed
months between '92 and '93, we had a
that the first two options would require post-
number of discussions in that period of
graduate education directed towards achieving a
time, which I would insist he needed to see
master's degree. He estimated the cost of this
the children, that the children hadn't seen
additional education at approximately $30,000.
him for four weeks or six weeks and he
1171 *1171 Later in his testimony, during a lengthy
really needed to make time for them.
narrative, he said:
He would say he was really busy, that
Judge, you have a difficult assignment of
things were really difficult out there, and
figuring out, you know, how to have — so
he had to wait on some particular thing . . .
everybody wins when the best situation is
I tried to make sure that he saw them about
sort of basically everybody loses in the
once a month, at least every five weeks. I
sense that nobody gets what they want.
think there may have been once or twice
Not "loses" and everybody is unhappy and
when it was actually longer than that."
that's a winning situation.
18
[Another father] has been able to arrange was not raised in the trial court. It is clear that
his schedule around his children and I just neither Mr. Young nor his lawyer were overly
hope I can. I need help to do it and I want concerned with the "continuity" problem, as they
help to do it and I want to get it done. were both willing to surrender primary custody
Maybe the children should stay with Alice during the proposed two year educational
until I get it done and the day I have the rehabilitation period. Moreover, in such a close
job they can come live with me. I want to case, this willingness to give Ms. Hector primary
get a job that allows me to be with them. I custody may well have tipped the scales in her
want to be with them at three o'clock when favor. Indeed, the quoted portion of counsel's
they get out until they go to bed. summation above is found on page 531 of the trial
transcript, and on page 532 the trial judge
(Emphasis added). During closing argument, Mr.
designates Ms. Hector as the primary residential
Young's lawyer followed up on the same theme:
parent. A party cannot invite error at the trial level
[Robert] suggested an alternative. I would then be heard to complain about it on appeal. See
adopt that suggestion. I don't think that Gupton v. Village Key Saw Shop, Inc., 656 So.2d
it's an unreasonable suggestion. He does 475, 478 (Fla. 1995) (defining the invited error
need to get a job. rule as follows: "a party cannot successfully
complain about an error for which he or she is
***
responsible or of rulings that he or she has invited
Financially, right now, I'm not certain I can the trial court to make."); Held v. Held, 617 So.2d
come up with a plan but I am certain that 358 (Fla. 4th DCA 1993); Poller v. First Virginia
there is a way to accommodate it. I'm not Mortg. and Real Estate Inv. Trust, 471 So.2d 104
a fan of temporary orders but certainly in (Fla. 3d DCA 1985).
this case it might be one that begs out for
Even if the "continuity" argument had been made
a temporary order to allow him an
and properly preserved, a close analysis of the
opportunity, without the children, without
evidence establishes that the trial judge's decision
the responsibility for the children, to get
does not frustrate that goal. Mr. Young testified
on his feet.
that Ms. Hector was the parent who awakened the
He needs to do that and I'll be the first to children, dressed them and gave them breakfast.
admit it and he's not going to do it while He and Ms. Hector would share the responsibility
the divorce is pending and he's certainly of taking the children to school. Under the final
not going to do it with two little children judgment, this process would remain unchanged.
that he has to care for starting at three He testified that while the children were in school
o'clock every day but, if he's willing and he would return home and either work on his
motivated, I think he can find a position upcoming divorce, manage his stock market
that would allow him to have more time accounts or perform household errands. Nothing
with the children at least than a 9:00 to in the final judgment would change his "during-
5:00 position and maybe even more than school" activities. He indicated that either he or
that. He might get lucky. He might find 1172 the *1172 housekeeper would pick up the children
someone who is willing to accommodate at school and he would then share a variety of
him. "after-school" activities with them. Under the final
judgment he would still be able to do that. He
(Emphasis added). Mr. Young's testimony, and his further testified that he would have dinner with the
lawyer's summation, categorically establish that children on an almost daily basis. Nothing in the
the "continuity" argument adopted by the dissent
19
final judgment will change this. When Ms. Hector Law of Family Dissolution: Analysis and
came home in the evening he would either retire to Recommendations (Am. Law Inst. 1998)
his room or leave the house, and the children (Tentative Draft No. 3, Part I) § 2.09(1).3 This is
would spend time with their mother, who would 1173 notonly because it is almost always better to *1173
talk with and read to them. This also will remain preserve a known good rather than to risk what the
the same. In short, as far as the children are unknown future may bring, see Rumph v. V.D.,
concerned, under Option 1 of the final judgment, 667 So.2d 998, 998 (Fla. 3d DCA 1996)
nothing in their lives will change unless Mr. (Schwartz, C.J., specially concurring), but, much
Young becomes unavailable due to his more important, because the children are
educational, or, ultimately, career objectives. If themselves entitled to stability in their lives and
these objectives interfere with what the children routine which would be compromised by any
have come to know, they will be equally purposeless change in their caregiver. In many
obstructive if Mr. Young were designated the areas, the law properly recognizes the
primary residential parent. It is therefore clear that undesirability of disrupting the children's
the final judgment does not impede the circumstances any more than is already
"continuity" of the children's lives, nor does it necessarily required by their parents' separation
significantly alter the care taking roles of their and divorce. § 61.13(3)(d), Fla. Stat. (1995).4 See
parents. Mize v. Mize, 621 So.2d 417 (Fla. 1993)5
(relocation of custodial parent); Pino v. Pino, 418
SCHWARTZ, Chief Judge (dissenting). So.2d 311 (Fla. 3d DCA 1982) (importance of
I remain convinced by the panel decision and by children's remaining in home). This principle finds
the dissents of Judge Nesbitt and Judge Goderich special application in the rule that modifications of
that the trial court's "award" of the children's the custody provisions of a final judgment may be
primary physical residence to the mother is made only when there has been a change of
unsupported by any cognizable, equitable circumstances adversely affecting the welfare of
consideration presented by the record. As the the children. Belford v. Belford, 159 Fla. 547, 32
panel opinion, which has not in my view been So.2d 312 (1947); Ritsi v. Risti, 160 So.2d 159
successfully challenged by any of the contrary (Fla. 3d DCA 1964), cert. denied, 166 So.2d 591
briefs or opinions,1 demonstrates, the children's (Fla. 1964). When, as here, the children have
manifestly benefitted from an arrangement
parents, who know and care most about their
established before the judgment, the same rule
welfare, had themselves established an
should apply.
arrangement prior to the dissolution as a part of
which, upon any fair assessment, the father was 1 Much of the picking at the panel
the primary caretaker. See Principles of the Law of fallaciously assigns the "caretaking
Family Dissolution: Analysis and functions" of the housekeeper to the
Recommendations (Am. Law Inst. 1998) mother and relies upon a possible change
(Tentative Draft No. 3, Part I) § 2.03 (6).2 As in the circumstances of the parents which
might follow the dissolution.
everyone agrees, under that regime, if not because
of it, their girls have turned out to be well- 2 § 2.03 Definitions
behaved, well-adjusted, and accomplished young

(6) Caretaking functions are tasks
women who love both their parents: just what we
that involve interaction with the
all devoutly wish for and from our children. There
child or direct the interaction and
is simply no reason for a court to tamper with
care provided by others.
what has worked so well. See Principles of the
Caretaking functions include
20
(a) feeding, bedtime and wake-up (h) arrangement of alternative

routines, care of the child when care by a family member, baby-
sick or hurt, bathing, grooming, sitter, or other child-care provider
personal hygiene, dressing, or facility, including investigation
recreation and play, physical of alternatives, communication
safety, transportation, and other with providers, and supervision.
functions that meet the daily
3 § 2.09 Allocation of Custodial
physical needs of the child;
Responsibility
(1) Unless otherwise resolved by

(b) direction of the child's various
agreement of the parents . . . or
developmental needs, including
unless manifestly harmful to the
the acquisition of motor and
child, the court should allocate
language skills, toilet training,
custodial responsibility so that the
self-confidence, and maturation;
proportion of custodial time the
child spends with each parent
(c) discipline, instruction in approximates the proportion of
manners, assignment and time each parent spent
supervision of chores, and other performing caretaking functions
tasks that attend to the child's for the child prior to the parents'
needs for behavioral control and separation. . . .
self-restraint; 4 (3) For purposes of shared parental
responsibility and primary residence, the
(d) arrangements for the child's best interests of the child shall include an
education, including remedial or evaluation of all factors affecting the
special services appropriate to the welfare and interests of the child,
child's needs and interests, including, but not limited to:
communication with teachers and

***
counselors, and supervision of
homework;
(d) The length of time the child

has lived in a stable, satisfactory
(e) the development and
environment and the desirability
maintenance of appropriate
of maintaining continuity.
interpersonal relationships with
peers, siblings, and adults; 5 Adopting opinions in Hill v. Hill, 548
So.2d 705 (Fla. 3d DCA 1989) (per

Nesbitt, J.; Schwartz, C.J., specially
(f) arrangements for health care,
concurring), review denied, 560 So.2d 233
including making appointments,
(Fla. 1990).
communication with health-care
providers, medical follow-up, and What happens when that rule is not applied is
home health care; illustrated by the result in this very case, in which
it was necessary below and has been found
necessary on appeal to resort to other,
(g) moral guidance; and
21
inadmissible, factors to justify the so-called custody would have been virtually laughed out of
exercise of discretion by the trial court and the court, and there is no realistic possibility that the
affirmance of that result by this one.6 mother architect would have actually "lost her
1174 *1174 children."7 (The fact, so heavily emphasized
6 Crediting the past record of the division of
by members of the majority, that the
caretaking functions between the parents
also has the very salutary consequence of
hypotheticalmother architect might have sought
avoiding reliance on such factors as the employment after the dissolution, as usually
expressed preferences of the children, see occurs, and that her time with the children would
Fla.R.Fam.Law P. 12.407, and, even more, have therefore diminished, would have made no
the misnamed "expert" opinions of difference either.)8 It is, at best, naive in the
participants in the thriving cottage industry extreme to suggest, let alone find, that the result
of forensic child psychology. See below was not dictated by the evil of gender bias.
Principles of the Law of Family
7 That the issues have so often been put in
Dissolution: Analysis and
Recommendations (Am. Law Inst. 1998) these terms, which better describe a sports
(Tentative Draft No. 3, Part I); Regan v. event than a dispassionate search for a
Regan, 660 So.2d 1166, 1168 (Fla. 3d result which most benefits the children is
DCA 1995) (Schwartz, C.J., dissenting in one of the most unfortunate aspects of this
part); Keesee v. Keesee, 675 So.2d 655 case. See Mize v. Mize, 621 So.2d 417,
(Fla. 5th DCA 1996) (Griffin, J., 420 (Fla. 1993) (Barkett, J., concurring)
concurring specially). The majority's (expressing grave doubts as to wisdom of
refusal to follow the prior caretaking employing adversary process in resolving
arrangement rule in this case may well family issues). That it should be widely
result in emphasis upon these factors in the thought that a mother, and only a mother, is
future. (Commendably, however, despite considered morally or maternally deficient
the depth of their own dispute, the parties if she is not granted custody, is a testament
here at least did not require their girls to to the pervasiveness of sexual stereotyping
choose up sides in the litigation nor involve in our supposedly gender-blind society.
them in an unnecessary and damaging That the majority decision will likely serve
process of psychological testing, treatment, to perpetuate both of these fallacies is
and disclosure.) disheartening.
8 That working fathers have almost never

A. actually gained custody has not prevented
In my opinion, there is no question whatever that the use of such claims or even the threat of
the result below was dictated by the gender of the bringing them as effective "bargaining
competing parties. It is usually extremely difficult chips" — meaning instruments of extortion
to gauge the underlying motivations of any human — in settling the financial disputes which
being and one resists even more the assignment of are usually the only real issues in these
an unworthy or impermissible reason to any cases. Taking the majority at its word that
judge's exercise of her judicial functions. This the sex of the working parent makes no
difference, the result in this case, which
case, however, permits no other conclusion. I
means that a non-caretaking father may
believe that this is shown by contemplating a
actually succeed in "taking the children
situation in which the genders of the hard working
away" from the mother, will inevitably
and high earning lawyer and the stay at home
result in a great increase in the dollar value
architect were reversed, but everything else
of this nefarious tactic, and in the
remained the same. The male attorney's claim for involvement of the courts in the use of
22
children as pawns in personal disputes less of her character. Dinkel v. Dinkel, 322 So.2d
between alienated spouses. Of all the many 22 (Fla. 1975).10 Apparently, I was mistaken.11 See
adverse consequences of today's decision,
Anderson v. Anderson, ___ So.2d ___, ___ n.1
these may be the most serious.
(Fla. 5th DCA Case no. 97-2608, opinion filed,
B. May 28, 1999) [24 FLW D1273, D1275 n.1]
(challenging Dinkel). Although only with the best
By rejecting the obvious but unacceptable in its
of intentions, and fortunately in a case in which
search for a basis for the result below, the majority
children will thrive in the care of either parent (or
has, in my opinion, relied upon something even
both of them), the majority has perhaps
worse. In the end, after a meticulous inquiry into
unwittingly provided that custody decisions are
the father's long past and non-parental conduct
subject to the personal views of a particular judge,
which few mortals could withstand, it bases its
who sits as a Dostoevskian Grand Inquisitor, the
determination that the discretion of the trial court
effectuation of whose own notions of right and
was properly exercised upon the belief that the
wrong are subject to objective review by no one
record shows (or that the trial court might have
on this earth. In a society of law and not persons,
properly believed) that Mr. Young is less sincere,
unknowable and unjudgable questions of
less well motivated, less admirable and generally a
character, personal worth, and even actual
worse person and a worse parent than Ms. Hector.
"misconduct," if irrelevant to the issue under
As I might do myself, one may agree with this
consideration,12 should not govern decision
assessment of the parties while profoundly
making in this area or any other. See S.B. v. D.H.,
disagreeing, as I certainly do, with the idea that
___ So.2d ___, ___ (Fla. 2d DCA Case no. 98-
any such consideration is a proper basis for
575, opinion filed, July 2, 1999) [24 FLW D1563,
decision-making in this field. See Rumpf, 667
1564] ("There is no Solomon within our judiciary
So.2d at 998.
who can accurately predict who would be the
It is of course true, as the majority repeatedly `better' father for this child."). Results on
emphasizes, that a "custody" decision is one indistinguishable operative facts should not vary
within the discretion of the trial court. But judicial from courtroom to courtroom according to the
discretion may properly be exercised only on the moral preferences of the trial judge (or appellate
basis of factors which are legally pertinent to the 1176 panel) assigned by the *1176 luck of the draw to
issue involved. Canakaris v. Canakaris, 382 So.2d hear the case.13 Farrior v. Farrior, ___ So.2d at ___
1197 (Fla. 1980)9; see Farrior v. Farrior, ___ So.2d [24 FLW at S298] (Pariente, J., concurring).14
___ (Fla. Case no. 93,329, opinion filed, June 24, Because the majority's decision is to the contrary
1999) [24 FLW S297]. In this area, that issue is of these propositions, I believe that it is very
the children's best interests. Its resolution, in turn, wrong.
cannot be based on a subjective assessment of the
9 Quoting from B. Cardozo, The Nature of
worth of the contending parties so long as, as was
the Judicial Process 141 (1921):
conclusively demonstrated in this case, the
conduct and character traits referred to have not
impacted upon the children. We had, I thought,
come a long way from the time when a parent
could be denied her parental rights — or, more
properly stated, when the children could be
1175 deprived of their *1175 rights to having only their
interests considered — merely because a judge
may disapprove of her standards of conduct, much
23
The judge, even when he is free, establishes, did not affect their well being.
is still not wholly free. He is not The reviewing circuit judge, like the panel
to innovate at pleasure. He is not here, reversed that decision but was in turn
a knight-errant roaming at will in reversed by the Fifth District which, like
pursuit of his own ideal of beauty our en banc court, found that the master's
or of goodness. He is to draw his recommendation was not an abuse of
inspiration from consecrated discretion. Judge Thompson's dissenting
principles. He is not to yield to opinion demonstrates the incorrectness of
spasmodic sentiment, to vague upholding a particular decision as an
and unregulated benevolence. He exercise of discretion in the absence of any
is to exercise a discretion legitimate basis upon which the decision
informed by tradition, could have been reached. It shows also, if
methodized by analogy, we must put the issue in gender-based
disciplined by system, and terms, that the decision may well backfire
subordinated to "the primordial against many mothers, the vast majority of
necessity of order in the social whom, because they so much more often
life." Wide enough in all have actually been the children's caretakers
conscience is the field of before the dissolution, have historically
discretion that remains. been granted custody.
12 I have long held and often expressed the
Canakaris, 382 So.2d at 1203. opinion that, in certain circumstances, a

good case can be made for considering,
10 Poor moral choices are insufficient grounds
dare I say it, "fault" in determining the
to modify custody, absent some impact on financial consequences of a dissolution, on
the child. Dinkel v. Dinkel, 322 So.2d 22 the grounds that it concerns only issues
(Fla. 1975); Jablon v. Jablon, 579 So.2d between husband and wife and that it may
902 (Fla. 2d DCA 1991). Frequent moves, be
a less stable lifestyle, even poor
relationship choices standing alone may improper to permit an errant
not support a custody modification where spouse to destroy a marriage and
the residential parent has moved out of then to claim benefits equal to
necessity, has subsequently established a those which would have been
stable home, and the child's needs have provided had it remained intact.
always been met. See Jablon v. Jablon, 579
So.2d 902 (Fla. 2d DCA 1991); Kelly v.
Kelly, 642 So.2d 800 (Fla. 2d DCA 1994). Smith v. Smith, 378 So.2d 11, 15 (Fla. 3d
DCA 1979), cert. denied, 388 So.2d 1118
Sullivan v. Sullivan, ___ So.2d ___, ___
(Fla. 1980); Pitts v. Pitts, 412 So.2d 404,
(Fla. 4th DCA Case no. 97-3625, opinion
405 n.1 (Fla. 3d DCA 1982); Martin v.
filed, June 23, 1999) [24 FLW D1473].
Martin, 366 So.2d 475, 475 (Fla. 3d DCA
11 Anderson v. Anderson, ___ So.2d ___ (Fla. 1979) (Schwartz, J., specially concurring);
5th DCA Case no. 97-2608, opinion filed, see also Baxter v. Baxter, 720 So.2d 624,
May 28, 1999) [24 FLW D1273] shows the 624 (Fla. 5th DCA 1998) (Harris, J.,
consequences of the majority holding in concurring and concurring specially). It
this case. There, a special master "took the seems, at least to me, ironic, and it is
children away" from their mother certainly personally upsetting, that the law
apparently because of her perceived is now completely to the reverse of what I
misconduct which, as the dissent think it should be. Such cases as Noah v.
24
Noah, 491 So.2d 1124 (Fla. 1986) and The discretionary power that is
Heilman v. Heilman, 610 So.2d 60, 61 (Fla. exercised by a trial judge is not,
3d DCA 1992) establish that Florida will however, without limitation, and
not permit misconduct to interfere with the both appellate and trial judges
right to recover money and property from should recognize the concern
one's ex-spouse. Anderson v. Anderson, which arises from substantial
___ So.2d ___ (Fla. 5th DCA Case no. 97- disparities in domestic judgments
2608, opinion filed May 28, 1999) [24 resulting from basically similar
FLW D1273] and the majority opinion here factual circumstances. The
establish that the welfare of childrencan be appellate courts have not been
compromised by a judge's adverse opinion helpful in this regard. Our
of the character or lifestyle of one of their decisions and those of the district
parents. For all the good it will do, I courts are difficult, if not
protest. impossible, to reconcile. The trial
(I note that applying my views to this case court's discretionary power is
might conceivably result in a reversal of subject only to the test of
the custody and child support rulings reasonableness, but that test
below but an affirmance of the alimony requires a determination of
and equitable distribution provisions — whether there is logic and
just the opposite of what the court has justification for the result. The
done.) trial courts' discretionary power
was never intended to be
13 McAllister v. McAllister, 345 So.2d 352
exercised in accordance with
(Fla. 4th DCA 1977), cert. denied, 357 whim or caprice of the judge nor
So.2d 186 (Fla. 1978) (Letts, J.), cited in in an inconsistent manner. Judges
Smith v. Smith, 378 So.2d at 11. dealing with cases essentially
14 Quoting from Canakaris: alike should reach the same

result. Different results reached
from substantially the same facts
comport the neither logic nor
reasonableness.
382 So.2d at 1203.
NESBITT, J. (dissenting):
I respectfully dissent.
I entirely agree with the original decision and

opinion of this court, filed June 24, 1998 at 23 Fla.
L. Weekly D1529. The heightened interest in the
case prompts me to discuss the determinative
factors which originally caused me to vote for
reversal and against rehearing en banc.
The record demonstrates that both the mother and

the father of the children are completely and
entirely fit and worthy (as the trial court found) to
25
serve as primary residential parent. As the wife's that any circuit judge in Florida would have asked
law practice grew and prospered (she was working 1177 the same question of the mother of *1177 young
11 and 12 hour days and was frequently gone children whose husband was then earning a
overnight), she relied more and more upon the substantial annual income.
husband, who accepted the responsibility for the
Sub silentio, this court like the trial court
care and needs of the girls. The arrangement
continues to pillory the father because he is not the
began in the fall of 1993 and continued until the
substantial bread winner in the family. But there is
1996 dissolution proceeding which led to the
little or no correlation between being the money
husband's summary eviction from the marital
maker or between being wealthy or not; in order to
home. Acquiescence to the child custody
make one an effective parent.
arrangement can and has been found to be an
important factor of various aspects of child By today's decision, the court remains aligned
custody problems. See Farrell v. Farrell, 555 So.2d with the traditional view that a mother will not
1260, 1261 (Fla. 3d DCA 1989);Berhow v. Crow, lose her entitlement to become the primary
423 So.2d 371, 373 (Fla. 1st DCA 1982);In re residential parent unless her unfitness is
Marriage of Feig, 694 N.E.2d 654, 657 (Ill. App. demonstrated; no matter how actively she is
Ct. 1998); In re Marriage of Jackson, 682 N.E.2d engaged outside of and away from the home, even
549 (Ind. Ct. App. 1997); Wright v. Stovall, No. though the other parent is fit and willing to serve
01A01-9701-CV-00040, 1997 WL 607508, at *5 in that capacity. Such holding necessarily implies
(Tenn. Ct. App. Oct. 3, 1997). This salient factor that children therefore will be substantially or in
was wholly ignored by the trial court. Section part reared by a surrogate parent. It occurs to me
61.13(2)(b)1, Florida Statutes (1995), in part that both the children and the societal interest are
provides "the father of the child shall be given the better served by placement with a natural parent
same consideration as the mother in determining who is available.
the primary residence of a child irrespective of the
Given the parties' own conduct toward the care
age or sex of the child."
and rearing of these children it leaves no doubt
In Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th that their best interests would be that they remain
DCA 1995), the Fourth District observed that the with their primary care giver; here their natural
tender years doctrine was impermissible as it used father. Where parents themselves have established
gender as a basis for awarding custody. Id. at 753. an arrangement (which they do not either dispute,
The Fifth District has noted that "[e]ven though contradict or refute) which supports the children's
[the tender years] doctrine was overturned by the best interests — there is no reason for the courts to
legislature's gender neutral policy, there remains a interfere.
temptation for many judges to consider the right to
I therefore dissent with the child custody dispute
custody as the mother's to lose and unless her
but agree with reversal of the financial issues,
fitness is legitimately challenged, the father's right
because that portion of the judgment is skewed as
of equal consideration is often ignored." Ayyash v.
the rest.
Ayyash, 700 So.2d 752, 754 n.3 (Fla. 5th DCA
1997).
GODERICH, J. (dissenting):
In this proceeding the trial judge totally ignored
the gender neutral policy. For example, at one I respectfully dissent for the reasons expressed in
point in the proceeding he asked the husband, the panel opinion. Young v. Hector, 23 Fla. L.
"Maybe there's something I don't understand — Weekly D1529 (Fla. 3d DCA June 24, 1998). It is
why don't you get a job?" It is extremely unlikely incomprehensible how the majority of the en banc
26
panel can agree that the trial court abused its missing something. Why don't you get a job."
discretion in virtually every final ruling it made, Shortly thereafter, the trial court also stated: "Why
except as to its ruling on the award of primary 1178 [sic] do you need the *1178 nanny for, if you're
residential custody. It is apparent that the trial there doing it?" The majority opinion claims that
court also abused its discretion by awarding
this inquiry by the court is not evidence of
primary residential custody of the minor children
gender bias. Given the undisputed large
to the parent who has been working long hours as
financial indebtedness of this couple, the
a senior litigation partner in one of Miami's top
trial court's inquiry about the need to
law firms as opposed to the parent who has not
employ a full-time nanny was both logical
worked outside of the home for the three years
and practical under these circumstances
preceding the filing of the dissolution action.
and certainly could have also been
The majority opinion focuses on the fact that the appropriately posed to the mother if she
parties did not mutually agree that the father had been recalcitrant about seeking gainful
would stay at home to care for the children. employment to assist the family's financial
Although it may be true that the mother did not situation.
expressly agree, the record demonstrates that the
(Maj. op. at 11-12). I do not agree with the
mother nonetheless acquiesced to this arrangement
majority's observation that these statements had
by allowing it to continue for three years. For
nothing to do with gender bias, but rather was a
example, although the parties had "separated," the
result of the parties' financial condition. During
mother permitted the husband to live in the marital
the trial court's exchange with the husband, there
home and to continue his role as a stay-at-home
is nothing that would indicate that the trial court
parent. Moreover, there is no doubt that the
was concerned with the parties' financial
mother benefited from this arrangement (and
condition. (Maj. op. at 10-11). Further, I find it
possibly that is why she allowed it to continue).
extremely hard to believe that if the roles were
As a result of this caretaking arrangement, the
reversed any trial judge would question a mother's
mother was free to dedicate herself to her legal
lack of employment or the employment of a nanny
career by working extremely long hours1 without
when the father earns over $300,000 per year.
having to worry about whether the minor
Moreover, the record indicates that it was the
children's emotional needs were being met. Also,
mother, not the father, who employed the nanny.
the record indicates that the children also
(Maj. op. at 7).
benefited from their father's role as the primary
caretaker since he was actively involved in their The majority opinion also suggests that the father
school and after-school activities. should have obtained gainful employment in order
1 Even the majority agrees that the mother's
to financially assist the household and minor
children in light of the parties' financial condition.
working hours are not "typical." The
majority is of the opinion that "typical
The record clearly demonstrates that with the
working parents" arrive home between husband's present skills, he did not have the ability
5:30 and 6:00 each evening. (Maj. op. at to earn a substantial amount of money. Further,
4). this was not a family in which the working parent
was earning $30,000 and any additional sums
Further, I believe that gender played a role in the earned by the other parent would have been
trial court's decision, and continues to play a role helpful to provide the children with basic
in this Court's decision. At one point, the trial necessities such as food, clothing, and shelter. The
court, while questioning the father as to the record clearly establishes that the minor children's
nanny's role, stated to the father: "Maybe I'm
27
basic necessities were more than taken care of. price. Second, the husband, was away for three to
There are certain things that money cannot buy 1179 four weeks to be *1179 with his ill brother, who
and that a nanny cannot provide, such as the died shortly after he arrived, and to help settle his
attention of caring parents. Once again, I do not brother's estate. Finally, the father was in New
believe that if the roles were reversed (a father Mexico from June 1992 to September 1993 in
who earns over $300,000 per year and a non- order to direct a treasure hunt project. The
working mother), the majority would have majority relies on the "treasure hunt" to make it
suggested that the children would have been better appear as if the treasure hunt was a crazy or weird
off if the mother would have attained employment notion. However, what the majority has failed to
when her earning potential is limited and the state is that it may not have been so strange since
father already makes over $300,000 per year. the mother's parents and trial counsel also invested
Instead, the majority would have probably in this project. Therefore, the reasons for the
suggested that the father restructure his debt, sell father's absence from the home were valid.
assets, and/or cut down on expenses so that the Further, the fact that the father had been away
mother could continue the caretaking role that was from the family should not be a "determinative
established during the marriage. factor" when taking into consideration that the
father has been the primary caretaker since the fall
The majority opinion also addresses the three
of 1993.
"determinative factors" that the guardian ad litem
looked at in recommending that the mother be Finally, the third determinative factor was that the
named the primary residential parent. First, the mother "controls her anger better around the kids."
guardian focused on the fact that the mother has The guardian ad litem testified that the father
been more economically stable throughout the "would say things in the presence of the children
marriage. Once again, if the roles were reversed, I that indicated to me his anger and his displeasure
believe that the guardian ad litem would not have at what he perceives to be the financial inequities
considered economical stability as a of the situation. . . ." I agree with the guardian ad
"determinative factor." Further, in light of the litem that being able to control anger is an
child support guidelines, a parent's financial important factor in deciding child custody issues.
resources should never be considered as a However, the father's anger was based on the
"determinative factor" in deciding which parent "financial inequities of the situation," a problem
should be awarded primary residential custody of that should be completely resolved based on the
the minor children. majority's decision to reverse and remand all
financial determinations made by the trial court,
The second "determinative factor" was that the
including the insufficient award of alimony to the
mother has been "the more constant factor
father and the inequitable distribution of the
throughout the entire relationship." The guardian
marital assets and liabilities.
ad litem focused on the fact that the father had
been "away from the home for substantial periods Finally, I would like to note that the scenario
of time. . . ." I feel that it is important to explain contained in the present case is unique. In
why the father had been away from the home. situations where families are fortunate enough to
First, when the parties decided to move to Miami, have one parent stay at home to care for the
the father stayed in New Mexico for children, it is usually the mother. Because the
approximately three months in order to move the present situation is not the norm, this may be why
family's possessions to Miami and to make it is difficult to see that the trial court abused its
improvements to the marital home so that the discretion by not awarding primary residential
parties could sell the home at its highest possible custody of the minor children to the father, the
28
parent who has not worked outside of the home opinion, that the financial issues must be reversed
for the past three years in order to care for the and remanded for further proceedings.
minor children.
For all these reasons, I dissent as to the majority's

decision as to the child custody issue, but agree
with the majority, as I originally did in the panel
29

Young v. Hector, 740 So. 2d 1153 (1999)

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Young v. Hector, 740 So. 2d 1153 (1999)

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No.

Moreover, the guardian ad litem's testimony

Moreover, the guardian ad litem's The former husband/father (Robert Young)

I In June 1989, the mother and her two minor

The father candidly conceded as much at trial.3 4 As the father testified:

Consequently, this case simply did not involve the

Alice to put together a budget and typically

[Q] Do you spend most evenings

[Father] Oh, yes, when she filed

[The Court]: Maybe I'm missing ****

effort to maintain continuity, could have

III Clearly, this Court cannot second-guess the

JORGENSON, COPE, LEVY, GERSTEN, Ira Dubitsky (Guardian Ad Litem)

Volume V. of Record, Page 23, Lines 22-

Number two, she has been, I think, the A: "Yes."

As I indicated above, I believe the record would

Q: "Do you know of one instance where he SORONDO, J. (concurring).

behaved, well-adjusted, and accomplished young

(a) feeding, bedtime and wake-up (h) arrangement of alternative

(1) Unless otherwise resolved by

education, including remedial or evaluation of all factors affecting the

special services appropriate to the welfare and interests of the child,

child's needs and interests, including, but not limited to:

communication with teachers and

(d) The length of time the child

So.2d 705 (Fla. 3d DCA 1989) (per

concurring specially). The majority's (expressing grave doubts as to wisdom of

refusal to follow the prior caretaking employing adversary process in resolving

future. (Commendably, however, despite considered morally or maternally deficient

process of psychological testing, treatment, to perpetuate both of these fallacies is

and disclosure.) disheartening.

8 That working fathers have almost never

12 I have long held and often expressed the

Canakaris, 382 So.2d at 1203. opinion that, in certain circumstances, a

14 Quoting from Canakaris: alike should reach the same

382 So.2d at 1203.

I entirely agree with the original decision and

The record demonstrates that both the mother and

For all these reasons, I dissent as to the majority's

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