Opinion
Nos. 85-1072, 85-1820.
July 29, 1986.
Appeal from the Circuit Court, Dade County, Stuart M. Simons, J.
Barrett Rogers and William Rogers, for appellant/cross-appellee.
Harvey D. Rogers, for appellee/cross-appellant.
Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
Both ex-spouses appeal from various aspects of the final judgment of dissolution.
1. We reject, as completely meritless, the husband's challenges to the awards of $86,000 in lump sum-equitable distribution and of attorney's fees to the wife. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Adams v. Adams, 376 So.2d 1204, 1206 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla. 1980).
2. Treating Ms. Radin's far more substantial points on cross-appeal, we first agree that, considering all the circumstances, particularly the greatly disparate financial resources and earning abilities of the parties, it was a plain abuse of discretion for the trial court to fail to make any award of periodic alimony for the wife's support, in addition to the equitable distribution. See Green v. Green, 484 So.2d 1269 (Fla. 3d DCA 1986); Alexander v. Alexander, 479 So.2d 815 (Fla. 4th DCA 1985); Andrews v. Andrews, 479 So.2d 249 (Fla. 2d DCA 1985); Carroll v. Carroll, 471 So.2d 1358 (Fla. 3d DCA 1985); DeCenzo v. DeCenzo, 433 So.2d 1316 (Fla. 3d DCA 1983); Rion v. Rion, 421 So.2d 541 (Fla. 5th DCA 1982). We therefore direct that a reasonable award of periodic alimony be rendered upon the taking of appropriate testimony after remand. Although the record comes close to demonstrating that permanent alimony is required as a matter of law, see Green v. Green, 484 So.2d 1269; Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980), we consider that the trial judge should in the first instance determine the character, amount and duration of the periodic alimony, subject to appropriate appellate review.
The award of alimony should be made retroactive to the date of the final judgment of dissolution. Green v. Green, 484 So.2d at 1271.
The trial judge granted "permanent care, custody and control" of the couple's two children to Mr. Radin, with reasonable visitation to the mother. While the substance of this order is well-supported by the record below, and was surely within the lower court's discretion, the form of this provision is defective, since it does not comply with the Shared Parental Responsibility Act, § 61.13(2)(b) 2, Fla. Stat. (1983). While we have some sympathy with the view that the distinctions are largely semantic, see Holland v. Holland, 458 So.2d 81, 82 (Fla. 5th DCA 1984) (Cowart, J., dissenting); cf. Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981), it is nevertheless true that the law of this state mandatorily requires that these issues be considered and resolved in terms of shared parental responsibility. See Rhines v. Rhines, 483 So.2d 4 (Fla. 2d DCA 1985); Holland v. Holland, 458 So.2d 81; see generally Goldenberg, The Shared Parental Responsibility Act: How to Provide for the Best Interests of a Child, Fla.Bar J., Oct. 1985, at 59; Kapner, Shared Parental Responsibility: Questions and Answers, 57 Fla.Bar J. 163 (1983). Accordingly, the trial court is directed to amend the final judgment to bring it into compliance with the act. We emphasize that this does not preclude the trial court from providing, without further hearing, that the parties shall have shared parental responsibility, and that the children's "primary physical residence" shall be with the father.
There is no basis in the record for a finding that shared parental responsibility would be detrimental to the children as is required to permit an order of "sole parental responsibility." § 61.13(2)(b)2, Fla. Stat. (1983).
Finally, we do not agree with Ms. Radin's claim that the award of equitable distribution was unreasonably low. Canakaris v. Canakaris, 382 So.2d 1197.
Affirmed in part, reversed in part and remanded.
I concur in the judgment and opinion of the court except with respect to two aspects of the opinion.
First, I agree that Mr. Radin's appeal does not present reversible error. I am unwilling, however, to characterize his appeal as "completely meritless," as it implies that the appeal is frivolous, which it surely is not. It simply does not present a sufficient basis for interfering with the trial court's discretion, Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), and I would reject the appeal on that basis alone.
Second, I cannot agree that the error in the entry of the child custody order herein was a mere formal or technical error which may be remedied by cosmetic amendments to the subject order upon remand. Plainly, the child custody order herein which awards "permanent care, custody, and control" of the parties' two minor children to Mr. Radin, with reasonable visitation to Mrs. Radin, failed to comply with the Shared Parental Responsibility Act, Section 61.13(2)(b)2a, b, Florida Statutes (1983), which provides:
"2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the court determines that shared parental responsibility would be detrimental to the child, the court may order sole parental responsibility.
a. `Shared parental responsibility' means that both parents retain full parental rights and responsibilities with respect to their child and requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interests of the child. When it appears to the court to be in the best interests of the child, the court may order or the parties may agree how any such responsibility will be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family and/or in the best interests of the child.
b. `Sole parental responsibility' means that responsibility for the minor child is given to one parent by the court, with or without rights of visitation to the other parent."
Obviously, the child custody order herein was entered as if the Shared Parental Responsibility Act had never been passed; it is in fact a pre-act custody order which in no sense addresses the issues of shared parental responsibility as required by the above-stated legislative provision. I think the failure to follow these provisions of the act constitutes a substantive error, rather than a mere formal defect; I therefore cannot agree with the court's observation that "the substance of this order is well-supported by the record below, and was surely within the lower court's discretion," and that only "the form of this provision is defective. . . ." 497 So.2d at 659 (emphasis in opinion). As the court ultimately, and correctly, concludes, "the law of this state mandatorily requires that these [child custody] issues be considered and resolved in terms of shared parental responsibility," and that accordingly, upon remand, "the trial court is directed to amend the final judgment to bring it into compliance with the [Shared Parental Responsibility Act]." 497 So.2d at 659. Plainly, then, the failure to follow the above statutory requirements for the entry of a child custody order in this case constitutes a significant error which must be reversed for the entry of a child custody order which complies with these requirements. Holland v. Holland, 458 So.2d 81, 82 (Fla. 5th DCA 1984); Nichols v. Nichols, 432 So.2d 648, 648-49 (Fla. 5th DCA 1983).
In addition, I cannot agree that the child custody order under review is nothing more than the equivalent of an order which provides for joint parental responsibility and grants primary physical residence of the child to one of the parties, as the court's opinion seems to imply. I disagree with the court that distinctions of this nature are "largely semantic" else the passage of the entire Shared Parental Responsibility Act was an exercise in futility. As one commentator has stated:
"Unfortunately, many equate `primary and secondary residence' with the old terms of `custody and visitation,' and assume that the primary residential parent still has total control. This should not be so. Practically, the parent with whom the child primarily resides should have the ultimate authority as to day-to-day decisions. As to other decisions, the Act does not require the parties to agree, but does require them to confer and cooperate on major matters."
Goldenberg, The Shared Parental Responsibility Act: How to Provide for the Best Interests of a Child, Fla.Bar J., Oct. 1985, at 59, 60. It would seem that the court in this opinion has fallen into the trap warned against in the above-stated commentary.
In sum, then, I think the trial court upon remand will be required to think through, carefully, the substantive requirements of the Shared Parental Responsibility Act and to enter a child custody order which fully complies with the act. The trial court should not, as the majority opinion infers, regard this entire process as a mere formal exercise having no real substantive content.
With these reservations, then, I join in the judgment and opinion of the court.