Cappola v. Cappola
Decision Date | 28 August 2019 |
Docket Number | No. 4D18-2812,4D18-2812 |
Citation | 280 So.3d 102 |
Parties | Dana CAPPOLA, Appellant, v. Paul CAPPOLA, Appellee. |
Court | Florida District Court of Appeals |
Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for appellant.
Paul Cappola, Oldsmar, pro se.
Dana Cappola ("former wife") and her former husband entered into a private agreement whereby their minor child, A.C., was to return to live with the former husband in Pasco County. Subsequently, she filed a "Motion For Status Quo Order Pending The Determination Of The Modification Proceedings" ("motion for status quo") to have the child continue residing with her in Broward County until final modification proceedings concluded. Her motion was denied and she now appeals. We find that the trial court abused its discretion in ruling that it was bound by the parties' private agreement without considering the child's best interest.
The trial court conducted an evidentiary hearing on the former wife's motion to maintain the status quo. At the conclusion of the hearing, the trial court orally pronounced that it would deny the former wife's motion:
(Emphases added). The trial judge noted that it was the court's "job to uphold contracts and uphold the law." When the former wife indicated that she had a pending motion to set aside the agreement, the court responded that the motion was moot.
Following protests by the former wife, the court stated, The former wife responded, "I understand, but in the beginning of the hearing you said you were going to go with what's in the best interest of [A.C.]." The court replied, The court also stated that it "[had ] to go by what Judge Horowitz ordered and what [the former wife] signed with [the former husband]." (Emphasis added).
After the hearing the court entered an order denying the former wife's motion. In its written order, the court noted that "it reviewed [the] agreement, along with the testimony and credibility of both the Mother and the Father as it pertains to the agreement and found that said agreement was in the best interest of the minor child, A.C." The order further stated that the court "considered the relevant factors in [ section 61.13(3), Florida Statutes (2018) ] and the evidence and testimony applying a ‘best interest’ standard as to the minor child, A.C."
"A trial court's ruling on a timesharing issue of a child is reviewed for an abuse of discretion." Lewis v. Juliano , 242 So. 3d 1146, 1148 (Fla. 4th DCA 2018).
On appeal, the former wife argues the trial court's oral pronouncement, which controls over the written order, reveals that the trial court ruled based on its finding that it was bound by the parties' private agreement, and not based on the best interests of A.C.
In response, the former husband maintains that the "best interests of the child" was not the proper standard and that the trial court could only change the timesharing agreement—without modification proceedings—if an emergency was present.
Here, the record reflects that in making its oral pronouncement, the court repeatedly stated it was bound by the parties' private agreement regarding placement of A.C. Notably absent from the court's oral pronouncement, however, is any finding that enforcing the parties' private agreement was in the best interests of A.C., although this language is included in the written order.
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...there is conflict between the oral pronouncement and the written judgment, the oral pronouncement must control. Cappola v. Cappola , 280 So. 3d 102, 104 (Fla. 4th DCA 2019) ; Cajuste v. Herlitschek , 204 So. 3d 80, 83 (Fla. 4th DCA 2016). If the written judgment suffers from internal confli......
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...and the written order must be reversed. See Soldatich v. Jones , 290 So. 3d 497, 500 (Fla. 4th DCA 2020) ; Cappola v. Cappola , 280 So. 3d 102, 104 (Fla. 4th DCA 2019) ; Glick v. Glick , 874 So. 2d 1238, 1241 (Fla. 4th DCA 2004). Here, the court's written order is inconsistent with its earl......