Doyle v. Owens, 1D03-5266.

• Decision Date: 15 September 2004
• Docket Number: No. 1D03-5266.,1D03-5266.
• Citation: 881 So.2d 717
• Parties: Kylie C. DOYLE, Appellant, v. Jason Leigh OWENS, Appellee.
• Court: Florida District Court of Appeals

881 So.2d 717

Kylie C. DOYLE, Appellant, v. Jason Leigh OWENS, Appellee.

No. 1D03-5266.

District Court of Appeal of Florida, First District.

September 15, 2004.

E. Jane Brehany, Pensacola, for Appellant.

Caryn A. Van Matre, Pensacola, for Appellee.

BENTON, J.

Kylie C. Doyle appeals an order granting Jason Leigh Owens unsupervised visitation with the parties' daughter, now four years old. At issue is the effect, under section 61.13(2)(b)2, Florida Statutes (2002), of the father's third degree felony conviction involving domestic violence. We reverse and remand.

Although the order on appeal is non-final, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) (allowing appeal of non-final orders determining "child custody in family law matters"). See § 61.503(4), Fla. Stat. (2002) ("`Child custody proceeding' means a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue."); see also McGlamry v. McGlamry, 608 So.2d 553, 554 (Fla. 4th DCA 1992)

(applying Rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation); Johnson v. Henck, 482 So.2d 588, 589 (Fla. 1st DCA 1986) (reviewing non-final order terminating visitation); cf. In the Interest of Temp. Custody of L.M. & T.M., 788 So.2d 1114, 1117-18 (Fla. 2d DCA 2001) (treating appeal of non-final visitation order as a petition for writ of certiorari rather than pursuant to Rule 9.130(a)(3)(C)(iii), "[a]lthough it is arguable that either approach would provide us with appellate jurisdiction").

After Mr. Owens was released from prison, an order¹ was entered authorizing him to visit the parties' daughter once a month under supervision at family visitation centers, principally in Tallahassee, where Ms. Doyle and the child reside. A superseding order allowed two such two-hour visits monthly, one in Tallahassee and one in Pensacola, and was in place when the current phase of the present paternity proceedings began.

The matter was heard below in a series of hearings. Assessing the issue before it, the trial court described the question early on not as

whether or not [Mr. Owens's] visitation should remain supervised, which it certainly should at this point in time, but whether it should be supervised in the present environment or whether there should be greater latitude that is supervised at the [p]aternal grandparents' house

in Pensacola, where Mr. Owens also lives. When proceedings resumed at a subsequent hearing, however, Mr. Owens's counsel announced that he was seeking not only supervised visitation overnight — with his mother acting as supervisor — but also unsupervised, daytime visitation. Eventually, the trial court ruled, as follows:

It is clear from the evidence that the benefit of supervised visitation has been maximized and that Mr. Owens has made considerable progress in moving toward shared parental responsibility and liberal unsupervised visitation. Considering the age of the child, however, together with the limited contact which has been available to Mr. Owens as a consequence of his own behavior as well as other circumstances existing between the parties the Court finds that it is not in the best interest of [the] child at this time to advance to either shared parental responsibility or frequent unsupervised visitation.

It is therefore,

ORDERED AND ADJUDGED that:

1. For a period of eight consecutive months commencing December 1, 2003 Mr. Owens shall be entitled to unsupervised visitation with the child in Tallahassee (at such times as the child is residing there). Unless otherwise agreed to by the parties unsupervised visitation shall occur between 10:00 a.m. and 4:00 p.m. on the second and fourth Saturdays of each month....

2. Mr. Owens shall additionally be entitled to one full day and night of unsupervised visitation in Pensacola.... Unless otherwise agreed to by the parties alternating unsupervised visitation as provided for herein shall occur on the third Saturday of each alternating month commencing Saturday, December 20, 2003 and continuing on alternating months thereafter. Visitation shall commence at 10:00 a.m. Saturday morning and continue through 4:00 p.m. Sunday afternoon.

....

4. The Court finds that the presumption created by Florida Statute § 61.13(2)(b)2 is rebutted by the evidence to such extent as to allow the expanded visitation provided for herein.

The trial court thus awarded overnight, unsupervised visitation for which Mr. Owens had not asked at any of the hearings at which visitation was discussed.

Ms. Doyle's contention on appeal is that no evidence tended to rebut the statutory presumption against unsupervised visitation² and that, in any event, the trial court's award of unsupervised visitation failed to "make such arrangements ... as will best protect the child." § 61.13(2)(b)2, Fla. Stat. (2002). Because, she contends, section 61.13(2)(b)2 requires that the court treat Mr. Owens's prior domestic violence conviction as presumptively detrimental to the child and consider his history of abuse as evidence of detriment to the child,³ and because the evidence did not rebut the presumption that unsupervised visitation would be detrimental to the child, the trial court erred in ordering unsupervised visitation. In any event, she also contends, no evidence supports the inherently problematic view that unsupervised visitation "will best protect the child." § 61.13(2)(b) 2, Fla. Stat. (2002).

Because Mr. Owens was previously "convicted of a felony of the third degree or higher involving domestic violence, ... a rebuttable presumption of detriment to the child" arises, broadly precluding shared parental responsibilities of many kinds, and rendering him ineligible for unsupervised visitation, if the presumption is not rebutted. § 61.13(2)(b)2, Fla. Stat. (2002). Section 61.13(2)(b)2 provides:

Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.

In an effort to rebut this presumption, Mr. Owens testified that he had taken anger management, parenting and CPR courses, had worked full-time, and had complied with court orders (since violating the domestic violence injunction). His testimony, like that of the family visitation center monitors he called as witnesses, also showed that supervised visitation had gone off without incident.

Even if this evidence was enough to overcome the statutory presumption that visitation would be detrimental to the child, however, it did not prove that unsupervised visitation would "best protect the child." § 61.13(2)(b)2, Fla. Stat. (2002). Section 61.13(2)(b)2 provides:

If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child

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