IN THE SUPREME COURT OF FLORIDA
DOUGLAS M. WYCKOFF, ) SUPREME COURT NO.: SC06-1360
Petitioner, ) FLA. 2d DCA
v. ) CASE NO.: 2D05-1999
TERRY LYNN WYCKOFF, ) LEE COUNTY CIR. CT.
) CASE NO.: 98-8000 CA-C
ON DISCRETIONARY REVIEW FROM THE
FLORIDA SECOND DISTRICT COURT OF APPEAL
RESPONDENT'S BRIEF ON JURISDICTION
J.L. "Ray" LeGrande, Esquire
LeGRANDE & LeGRANDE, P.A.
P.O. Box 2429
Fort Myers, Florida 33902-2429
Florida Bar Number 193147
ATTORNEY FOR RESPONDENT
TOPICAL INDEX TO BRIEF
TOPICAL INDEX TO BRIEF i
TABLE OF CITATIONS ii
SUMMARY OF ARGUMENT 1
CERTIFICATE OF SERVICE 8
CERTIFICATE OF COMPLIANCE 8
TABLE OF CITATIONS
Gibbs v. Gibbs
686 So.2d (Fla 2d DCA 1996) 5
Strazzula v. Hendricks
177 So.2d 1 (Fla. 1965) 7
Voorhies v. Voorhies
705 So.2d 1064 (Fla. 1st DCA 1988) 5, 6
Wade v. Hirschman
903 So.2d 928 (Fla. 2005) 1, 3, 4, 5, 6,
Wyckoff v. Wyckoff
820 So.2d 350 (Fla. 2d DCA 2002)
rev. den 821 So.2d 305 (Fla. 2002) 2, 3, 4, 5
Wyckoff v. Wyckoff
___ So.2d ___, 31 Fla. L. Weekly D1640
2006 WL 1667394 (Fla. 2d DCA June 16, 2006) 4
The Florida Bar Journal, November 2005, p. 64. 5
SUMMARY OF ARGUMENT
From a legal prospective, an examination of circumstances
surrounding the custody of the two young female children, ages
13 and 11, reflects the decision appealed is not in conflict
with Wade v. Hirschman, 903 So.2d 928 (Fla. 2005). Wade’s focus
is on res judicata, finality of custody, and the best interest
of the children. All three elements are components of both the
trial court order and the Second District Court of Appeal
From a best interest factual prospective, the lives of this
teenage girl and her pre-teen sister should not be disturbed.
Except for a short period between September 5, 2000 and January
16, 2002, the girls have been in the custody of their mother.
Their school is in Fort Myers, where for the last three and a
half years they have made friends and anchored their lives. A
change of custody would result in uprooting them at this
critical stage of their lives and moving them 510 miles away to
rural Crestview, Florida. Their best interests mandate no such
Petitioner requested the Second District Court of Appeal
("Second District") to vacate or modify its earlier decision in
Wyckoff v. Wyckoff, 820 So.2d 350 (Fla. 2d DCA 2002), (Wyckoff
I). That opinion issued on April 3, 2002 reviewed the parties'
...Mr. and Mrs. Wyckoff were married in
1993. Mr. Wyckoff was a practicing attorney
during the marriage and continues to
practice law. Mrs. Wyckoff worked as a
waitress until the parties' children were
born. She returned to this employment after
the parties separated. The parties have two
children, who are now (in 2002) six and
eight years old. In March 1998, the parties
entered into a marital settlement agreement
that was incorporated into a final judgment
of dissolution of marriage...it essentially
gave the Former Wife primary residential
responsibility of the children.
In August 1998, approximately five months
later, the Former Husband filed a petition
for modification of the final judgment. He
sought primary residential custody of the
two minor children and termination of his
support obligations. After a three-day
trial held in June 2000 (e.s.) the trial
court granted the petition...
The former wife appealed the order and the Second District
reversed. The former husband's attempt for a Florida Supreme
Court review was denied. Wyckoff v. Wyckoff, rev. denied, 821
So.2d 305 (Fla. 2002).
The former husband then filed numerous motions in the trial
court. On September 23, 2004 [I-T-1] and January 28, 2005 [II-
T-1] the court heard "all pending motions". On March 11, 2005
the court ruled on these motions. [II-R-212, 213] The former
husband filed a notice of appeal.
Custody was not the subject of the motions, the order, or
the notice of appeal.
$ There was no motion either pending or
ruled upon relating to child custody.
$ The court's March 11, 2005 order did
not address child custody.
$ The notice of appeal did not address
On May 26, 2005 the decision was rendered in Wade v.
Hirschman, 903 So.2d 928 (Fla. 2005). On October 17, 2005 when
the former husband subsequently filed his initial brief ("IB")
appealing the March 11, 2005 order to the Second District, he
gratuitously raised the argument that the court should vacate
its 2002 decision based upon Wade. [IB-8]
The former wife in her November 28, 2005 answer brief ("AB")
argued that over three and one half years had passed since
Wyckoff I had restored the custody to her.
...Deborah, now 12 years old, and Selena,
now 10 years old (in 2005) were placed in
the primary custody of their Mother in Fort
Myers with provisions for visitation by
their Father, who resided some five hundred
miles away in Crestview.
The children have resided with Mother since
birth and after the dissolution except for a
period between September 2000 and January
2002 Since January 2002 the children have
lived and attended school in Fort Myers.
During that three, almost four years, their
friends, social activities, and general
lives have been rooted in the Lee County
The former wife contended both in her written brief and in
oral arguments before the Second District that circumstances had
changed significantly since the trial court's June 2000 order.
She contended that to vacate the decision in Wyckoff I would
totally ignore the events of the last six years, which
constitute half of the children's lifetimes. [AB-8]
The Second District issued its opinion on the second appeal.
Wyckoff v. Wyckoff, ___ So.2d ___, 31 Fla. L. Weekly D1640,
2006 WL 1667394 (Fla. 2d DCA June 16, 2006) [Wyckoff II]:
Douglas M. Wyckoff appeals the trial court's
order rendered March 11, 2005, arguing that
the court erred in resolving several
postdissolution issues. He also argues that
in light of the Florida Supreme Court's
decision in Wade v. Hirschman, 903 So.2d 928
(Fla. 2005), this court should vacate or
modify our earlier decision in Wyckoff v.
Wyckoff, 820 So.2d 350 (Fla. 2d DCA 2002).
We affirm in all respects but note that the
substantial change test approved in Wade
would apply to further child custody
modification proceedings between the
The former husband's July 20, 2006 "Brief on Jurisdiction"
The Second District's decision expressly and
directly conflicts with Wade v. Hirschman,
903 So.2d 928 (Fla. 2005)... (BJ-1)
NO CONFLICT WITH WADE
Thus, Appellant's basis for appeal is Wade v. Hirschman, 903
So.2d 928 (Fla. 2005) “abrogating" Gibbs v. Gibbs, 686 So.2d 639
(Fla. 2d DCA 1996). Gibbs was cited in Wyckoff I.1
THE FOCUS OF WADE
The Court in Wade focused upon maintaining the doctrine of
res judicata and promoting the finality of the judicial
determination of the custody of children.
The Wade court acknowledged the initial determination of
1 Mother contends that in the strictest sense the
"abrogation" of Gibbs is dicta. First, the very narrow precise
issue raised in Wade was which test the courts should apply in
proceedings to modify rotating custody agreements. Second in
Wyckoff, a unanimous opinion authored by Judge Altenbernd, it
was determined that "...the parties' marital settlement
agreement, as incorporated into the final judgment of
dissolution, did not establish a joint or rotating custody
agreement..." Thus conservatively construed the subject matter
of Wade and Wyckoff are vastly different. Mother asserts that
any comment in the Wade opinion about extending the holding
outside the realm of rotating agreements is dicta. See: Judge
Anthony Black, "Florida Supreme Court Defines 'Substantial
Change' In Child Custody Modification Proceedings", The Florida
child custody is predicated on considerations of the best
interests of the children under F.S. 61.13. The court indicated:
...we conclude that the substantial change
test as used in Cooper applies to
modification of all custody agreements...
Wade, 903 So. 2d at 931.
The court continued:
...in Voorhies v. Voorhies, 705 So.2d 1064,
1065 (Fla 1st DCA 1998) the First District
stated that the party seeking the
modification carries the extraordinary
burden of proving (1) a substantial and
material change in circumstances and (2)
that the best interest of the child will be
promoted by such modification. This is
essentially the test applied in Cooper.
Wade, 903 So. 2d 933.
Thus, Wade has three primary concerns:
$ res judicata,
$ finality of custody, and
$ best interest of the child (not
detriment to child).
The former wife suggests the trial court's March 11, 2005
order shows compatibility with these concerns and is not in
conflict with Wade. Judge Starnes, at the close of the
hearings, made extensive comments about the interest of the
children. Among them:
Bar Journal, November 2005, p. 64.
...what a terrible position these two girls
are in because their parents are like oil
and water and they've (the children) got to
be miserable ... [II-T-99]
...obviously it's issues left over from
their marriage or other extraneous issues
that have nothing to do directly with the
children, but they wind up enmeshed in the
issues with the children... [II-T-100]
...So it's left to me to pick out the
pattern of the remains of your relationship
and try to make rulings and try to keep in
mind on the first level the children... [II-
Throughout the proceedings, Judge Starnes used the best
interests of the child as a lodestar. It is reflected in his
order, which the Second District affirmed.
Mother contends Strazzula v. Hendricks, 177 So.2d 1, 4 (Fla.
...an appellate court should reconsider a
point of law previously decided on a former
appeal only as a matter of grace, and not as
a matter of right...an exception to the
general rule binding the parties to “the law
of the case” ...at all subsequent proceeding
should not be made except in unusual
circumstances and for the most cogent
reasons--and always, of course, only where
“manifest injustice” will result from a
strict and rigid adherence to the rule.
Wade does not stand for the proposition that the children’s
lives should be disrupted by moving them 510 miles away from
home, where at their critical and impressionable ages they must
start at a new school, make new friends, and begin again at
square one. Wade, the order under appeal, and the Second
District’s opinion stand for custodial finality and stability --
needed ingredients in every child’s life and assuredly in their
best interests. To create a scenario to provide otherwise
constitutes “manifest injustice”.
Based upon the foregoing, the former wife requests the Court
to decline jurisdiction and deny review.
CERTIFICATE OF SERVICE
I hereby certify that a copy has been mailed to David M.
Caldevilla, Esq., de la Parte & Gilbert, P. A., P.O. Box 2350,
Tampa, FL 33601; Douglas M. Wyckoff, Esq., P.O. Box 786,
DeFuniak Springs, FL 32435; Dewey Mockler, Esq., P.O. Box 749,
Ft. Myers, FL 33902; and Ms. Terry Wyckoff, 150 Primo Dr., Fort
Myers Beach, FL 33931 on this _____ day of ____________, 2006.
CERTIFICATE OF COMPLIANCE
I certify that the size and style of font used in this brief
is 12 point Courier New, footnotes are the same size and style
of font and single spaced in compliance with Fla. R. App. P.
LeGrande & LeGrande, P.A.
Attorneys for Respondent
P.O. Box 2429
Fort Myers, FL 33902-2429
J. L. "Ray" LeGrande
Florida Bar No. 193147