# Third District Court of Appeal

State of Florida

Opinion filed July 15, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-1493

Lower Tribunal No. 11-279-K

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### Kimberly A. Fosshage

(n/k/a Kimberly A. Burt),

Appellant,

vs.



### Nathan S. Fosshage

, Appellee.

An Appeal from the Circuit Court for Monroe County, Tegan Slaton

, Judge.

Samuel J. Kaufman and Lawrence E. Harkenrider (Key West), for appellant.

Jiulio Margalli (Key West)

, for appellee.

Before SUAREZ, C.J., and SHEPHERD and SCALES, JJ.

SHEPHERD, J.Kimberly A. Fosshage (now Kimberly A. Burt) appeals from an order,

entered at the request of her former husband, Nathan J. Fosshage, which changed

the primary residence of the parties’ child from the Florida Keys to Wisconsin

where Mr. Fosshage lives. For the following reason, we reverse.

The parties lived in Big Pine Key when their son was born on April 15,

2008. In March of 2011, the parents separated but both still lived on Big Pine Key.

Dissolution of marriage proceedings resulted in a mediated agreement which was

incorporated into a final judgment. The agreement provided equal time-sharing,

with the child spending one-week intervals with each parent. Sometime in July of

2012, Mr. Fosshage relocated to Wisconsin and the child remained with his mother

in Big Pine Key.

On November 11, 2012, Mr. Fosshage petitioned for modification of the

parental plan on the ground of changed circumstances. While the primary obstacle

to the existing parenting plan was occasioned by his move, Mr. Fosshage claimed a

change in circumstances premised on a pending child abuse investigation involving

Ms. Burt’s then paramour, now husband, and Ms. Burt’s alleged interference with

Mr. Fosshage’s attempts to spend time with his son in the Keys. The matter was

referred to a Special Magistrate, who tried the case over three days between

October 2013 and February 2014. In his report and recommendation, the Special

Magistrate found the evidence did not support the child abuse allegations but

2determined that Ms. Burt was interfering with Mr. Fosshage’s time sharing with

the child. Based solely on the factors of section 61.13 of the Florida Statutes, the

Special Magistrate recommended changing the child’s residence to Wisconsin.

The trial court approved the report and recommendation, and Ms. Burt appealed.

There is a clear distinction between modification based on changed

circumstances under section 61.13(3) and relocation under section 61.13001 of the

Florida Statutes. See Miller v. Miller

, 992 So. 2d 346 (Fla. 3d DCA 2008).

Section 61.13(3), Florida Statutes (2013) provides, “A determination of parental

responsibility, a parenting plan, or a time-sharing schedule may not be modified

without a showing of a substantial, material, and unanticipated change in

circumstances and a determination that the modification is in the best interests of

the child.” This section also includes a list of factors to be considered in

determining whether such a change in circumstances has occurred. A petition for

relocation under section 61.13001, Florida Statutes (2013), on the other hand,

requires a completely different procedure with specific statutory requirements

governing the content of the petition, service on the other parent, burdens of proof,

and factors to be considered by the court. In the instant case, Mr. Fosshage’s

petition, although couched in the language of section 61.13(3), was in essence a

petition for relocation under section 61.13001. Thus, the trial court erred in not

following the dictates of that statute.

3Accordingly, we reverse the order entered below and remand for

proceedings under section 61.13001.

4