
    Larry H. WORTHINGTON, Appellant, v. Alison J. MacGREGOR, n/k/a Alison J. Harty, Appellee.
    No. 4D00-298.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2000.
    Rehearing Denied Dec. 7, 2000.
    Andrew M. Chansen, Boca Raton, for appellant.
    Alison MacGregor Harty, Delray Beach, pro se.
   HAZOURI, J.

Larry Worthington appeals from a final judgment regarding his former wife’s amended supplemental petition to modify primary residential custodial designation and visitation, and to enforce compliance with shared parental responsibility, and from the denial of his motion for rehearing. Worthington raises two points on appeal: 1) there was no basis to modify the child visitation schedule and 2) he should have been awarded attorney’s fees and costs for defending the former wife’s petition for modification of custody. We affirm the trial court’s decision not to award Worthington attorney’s fees and reverse the modification of the child visitation schedule because there was no basis for the modification.

On September 15, 1989, the final judgment of dissolution of the marriage was entered, which incorporated the parties’ property settlement agreement. It included primary physical residence of the parties’ two children with their father, Larry Worthington. There was shared parental responsibility and a visitation schedule that was set forth. In March 1990, the former wife filed a motion for modification of shared parental responsibility and visitation asking for custody and that she be designated as the primary residential custodian. On November 21, 1990, the court denied this request for modification of the final judgment; however, the trial court entered a more detailed and liberal visitation schedule from that which existed in the original final judgment of dissolution. The subject of this appeal is the trial court’s granting of the former wife’s petition to modify this second visitation schedule. In the trial court’s final judgment of December 7, 1999, the trial judge denied the former wife’s request to change the custody of the two children from the former husband to her. However, the trial court made substantial changes in the visitation schedule by, among other things, significantly increasing the former wife’s visitation with the children.

It is well settled that the trial court may not modify visitation unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since entry of the custody and visitation order, and (2) that the welfare of the child will be promoted by a change in custody and visitation. See Haas v. Haas, 686 So.2d 799 (Fla. 4th DCA 1997); McGlamry v. McGlamry, 608 So.2d 563, 554-55 (Fla. 4th DCA 1992). In the trial court’s final judgment of December 7, 1999, the trial judge specifically found that the former wife had failed to show by competent substantial evidence that there had been any material change in circumstances and the final judgment is silent as to whether it would be in the best interest of the children to modify the visitation schedule. We, therefore, reverse that portion of the trial court’s final judgment modifying the visitation schedule and affirm it in all other respects.

Reversed in part and affirmed in part.

WARNER, C.J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in the majority opinion because that result is mandated by our decisions in Haas v. Haas, 686 So.2d 799 (Fla. 4th DCA 1997), and McGlamry v. McGlamry, 608 So.2d 553 (Fla. 4th DCA 1992).

I question whether Haas describes the proper showing required to justify a modification of visitation, in light of section 61.13, Florida Statutes (1999), which vests broad discretion in the trial court to act in the best interests of the children of divorce.

Haas cited McGlamry for the rule to be applied when a party moves for a modification of visitation:

In McGlamry v. McGlamry, 608 So.2d 553, 554-55 (Fla. 4th DCA 1992), this court held that “for a modification of visitation, the party so moving must demonstrate: (1) a substantial or material change in the circumstances of the parties since entry of the original custody and visitation order, and (2) that the welfare of the child will be promoted by a change in custody and visitation.”

Haas, 686 So.2d at 800. McGlamry relied on Buttermore v. Meyer, 559 So.2d 357 (Fla. 1st DCA 1990), as its authority for the rule. See McGlamry, 608 So.2d at 554-55.

Buttermore considered whether an appellate court’s review of custody and visitation portions of the modification order should be controlled by the “ ‘reasonableness’ standard of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).” 559 So.2d at 359. Consistent with its earlier decision in Zediker v. Zediker, 444 So.2d 1034 (Fla. 1st DCA 1984), the first district decided “that the Canakaris standard of review applies to review of trial court orders modifying child support and alimony awards but does not apply to orders concerning modification of child custody and visitation.” Buttermore, 559 So.2d at 359 (emphasis supplied).

Interestingly, Zediker was a case involving a change in primary physical custody, not just a change in visitation. See Zediker, 444 So.2d at 1035. Buttermore treated modification orders adjusting visitation the same as those changing primary physical custody, without engaging in any analysis as to whether the similarity in treatment was justified.

Buttermore also found it significant that the final judgment in that case “predated the enactment of Section 61.13, Florida Statutes, relating to shared parental responsibility.” 559 So.2d at 359. The case observed that the original divorce decree “is considered res judicata as to all matters involved and known at the time it was rendered, including the fitness of the custodial parent and the best interest of the child.” Id.

I do not believe that the Haas rule is theoretically sound. An adjustment in a visitation schedule is not as far reaching as a modification in primary physical custody. As children grow, their needs change. Post-decree difficulties between parents often prevent them from doing the right thing for their child. A trial judge should have the power to adjust a visitation schedule when it is in the best interest of a child, without the necessity of a “substantial or material change in the circumstances of the parties since entry of the original custody and visitation order.” McGlamry, 608 So.2d at 554-55.

For example, an important activity for a child might be membership on a baseball team. One parent might object to the child’s participation, because it conflicts with the existing visitation schedule. While a child’s love of the summer game might not amount to a substantial or material change in the circumstances of the parties, a trial judge should nonetheless have the power to modify the visitation schedule where it is important that the child participate in the sport. Such a decision should be reviewed under an abuse of discretion standard.

Section 61.13, Florida Statutes (1999), does not restrict the trial court’s power to modify a visitation schedule. Section 61.13(2)(b)l. declares the general rule that a “court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child.” Section 61.13(2)(c) provides that the circuit court has “jurisdiction to modify an award of child custody,” without specifying the type of showing required to justify a modification. Section 61.13(4)(c) gives the court broad powers to address the situation where a custodial parent refuses to honor a noncustodial parent’s visitation rights; potential remedies include awarding primary residence to the noncustodial parent, as well as “any other reasonable sanction.” § 61.13(4)(c)6., Fla. Stat. (1999). Finally, section 61.13(5) allows the court to “make specific orders for the care and custody of the minor child as from the circumstances of the parties and the nature of the case is equitable.”

These sections appear to grant the trial court broad power to address post-decree visitation issues. I agree with the Haas standard when it comes to revisiting the issue of primary physical custody. There needs to be finality in such a decision. To avoid endless litigation, the system must utilize a standard that preserves the finality of the final judgment. For less global decisions such as those on visitation, section 61.13 allows the trial judge more flexibility than current case law.

The current rule on modifications of visitation appears to have snuck into Florida law in cases like Buttermore. In that case, the court treated a change in visitation the same as a change in primary physical custody, without reflection on whether this rule was a wise one. Continued reapplication of the Buttermore rule is a situation where a rule persists simply “from blind imitation of the past.” O.W. Holmes, The Path op the Law, 10 HaRV.L.Rev. 457, 469 (1897), cited in Weinstein v. Aisenberg, 758 So.2d 705, 711 (Fla. 4th DCA 2000) (Gross, J., concurring).  