A recent case out of Florida’s Fifth District Court of Appeal sets forth an important practice tip for memorializing mediated settlement agreements. In the case of Tucker v. Liebknecht, Case No. 5D11-681, 37 Fla. L. Weekly D1088a (Fla. 5th DCA, May 4, 2012), the parties, who had a child together but were not married, entered into a Mediated Paternity Agreement (“MPA”) that contained a provision concerning relocation. The provision stated that “If the parent that the child lives with the majority of the time intends to relocate more than 50 miles from the present home, the parent must obtain permission in writing from the non-residential parent or obtain a prior Court Order of Approval.” The court’s Final Judgment adopted and ratified the MPA.
Fast forward several years, and the mother, with whom the child is living, decides to relocate to a new home, which, by car, is more than 50 driving miles from her current home. However, the new home is within a 50 radius of the old home. The trial court used driving miles to determine that the new home exceeded the 50-mile restriction, and temporarily enjoined the mother from relocating. The mother appealed contending that the trial court should have used a straight-line test, pursuant to which the new home was within the 50-mile restriction.
The Fifth District agreed with the mother, and determined that the unambiguous language of the MPA could not be rewritten. “We believe that utilizing a method of measurement other than the straight line method would create uncertainly and generate needless debate. In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way.”
Since the Fifth District has now taken a definitive position on the issue, Florida practitioners are cautioned to consider and be specific in defining how distances should be calculated in mediated agreements.