Fazzini v. Davis

• Decision Date: 13 July 2012
• Docket Number: No. 2D11–3239.,2D11–3239.
• Citation: 98 So.3d 98
• Parties: Kelly FAZZINI, Appellant, v. Pamela DAVIS, Appellee.
• Court: Florida District Court of Appeals

98 So.3d 98

Kelly FAZZINI, Appellant,

v.Pamela DAVIS, Appellee.

No. 2D11–3239.

District Court of Appeal of Florida, Second District.

July 13, 2012.

Bruno F. DeZayas and Kevin E. Leisure of Harbmeier DeZayas, LLP, Lakeland, for Appellant.

Thomas C. Saunders and Alan L. Perez of Saunders Law Group, Bartow, for Appellee.

CASANUEVA, Judge.

Kelly Fazzini appeals the trial court's order denying his petition to modify a domesticated State of Virginia judgment allowing Pamela Davis, his child's maternal grandmother, visitation rights. Mr. Fazzini alleges two instances of trial court error. First, he claims that the trial court erred in concluding that the Virginia judgment qualified for recognition in Florida under the Full Faith and Credit Clause of the Constitution of the United States. Second, he claims that the trial court erroneously denied his request to modify the Virginia judgment after its domestication under Florida law. As to the first claim, we affirm. But we find merit in the second and reverse.

Facts and Procedural History

Mr. Fazzini and his wife Heather were blessed with the birth of this their first child in June 2007. At this time, Mr. Fazzini was on active duty with the United States Navy and was stationed in Virginia where the child was born. In September 2007, three months after her child's birth, Heather died tragically. A week after his wife's death, and because he was still on active duty, Mr. Fazzini placed the child into the custody and care of his own parents, Colin and Robin Fazzini. The paternal grandparents took the child to live with them at their home in Frostproof, Florida, until Mr. Fazzini could secure his discharge from the Navy. Within weeks after her daughter's death, Mrs. Davis filed a suit seeking custody of or visitation with her grandchild. Mr. Fazzini defended against her suit but the parties eventually reached a settlement. Thereafter, in early February 2008 and just before he was discharged from the Navy, the Virginia court rendered a consent judgment giving Mr. Fazzini sole custody of the child and Mrs. Davis certain visitation rights. Upon his discharge from the Navy, Mr. Fazzini returned to Florida and moved in with his parents and his child.

Since his wife's death, the relationship between Mr. Fazzini and Mrs. Davis has not been the warmest. Sometime after returning to Florida, Mr. Fazzini began dating another woman (Tiffany) who later became his fiancée. She moved in with him, his child, and the grandparents. While living together she acted, and the whole household referred to her, as the child's mother. Mr. Fazzini and his fiancée were married in May 2009. A year later, the new Mrs. Fazzini adopted the child. In order to be eligible to adopt the child, the adoption statute required that she have the consent of Mr. Fazzini. See§ 63.042(2)(c)(1), Fla. Stat. (2010). It goes without peradventure that Mr. Fazzini readily consented to this adoption.

Soon after Mrs. Davis began to exercise her grandparent visitation rights, disputes arose between her and Mr. Fazzini. Their disputes centered on two issues: first, where Mrs. Davis's visitations could occur and, second, when the child should be told about the biological mother's death and the adoption. Mrs. Davis sought to tell the child immediately; Mr. Fazzini, due to other concerns, sought to delay the disclosure. To maintain parental control over his child's life, in April 2008 Mr. Fazzini instituted a suit in Florida to domesticate the Virginia consent judgment and to modify it by terminating Mrs. Davis's visitation rights.

The domestication and modification proceedings were contentious and protracted. Initially, the parties disagreed as to whether Florida or Virginia had jurisdiction to resolve their visitation dispute. In September 2008, the trial court conducted a telephonic hearing with the Virginia court and the two Virginia attorneys representing the parties there; also present with the trial court were the Florida attorneys representing the respective parties. The trial court thereafter rendered an order that found that the Virginia court had established jurisdiction over the child and Mr. Fazzini. In this order the trial court further stated that it would not disturb that determination, but that

should the Commonwealth of Virginia relinquish jurisdiction of this matter, this Court may, upon proper application, determine to take in personam jurisdiction over the minor child and the subject matter jurisdiction of this action. The Court did advise the parties present in both Florida and Virginia, however, that should this Court take jurisdiction over the minor child and the subject matter of this action, the Virginia Orders in place would be given full faith and credit in the State of Florida unless modified by the State of Florida Court upon proper application being made therefore[ ] and a proper showing being demonstrated for any change.

In April 2009 the Virginia court relinquished jurisdiction to Florida and the case thereafter proceeded under Florida jurisdiction.

On June 8, 2011, the trial court held an evidentiary hearing on Mr. Fazzini's third amended petition to domesticate the Virginia judgment and to modify it. At the time of this hearing, Mrs. Davis had only visited the child four times since the child moved to Florida at the age of three months and not at all since December 2009. Mr. Fazzini, Mrs. Tiffany Fazzini, Mrs. Robin Fazzini, and Mrs. Davis testified at the hearing. The parties presented evidence of hostile emails and returned envelopes and letters, described the four visits Mrs. Davis had had in the intervening period, and argued their respective positions. Mrs. Davis's main concern, understandably, was to maintain contact with this grandchild, all that she had left of her deceased daughter; Mr. Fazzini's main concern, also understandably, was to parent his child without what he considered detrimental interference from Mrs. Davis whom he no longer trusted.¹

Based upon the testimonies and evidence, the trial court entered a final judgment finding that the Virginia order was domesticated in Florida and that Virginia had relinquished jurisdiction to the trial court. The final judgment went on to state:

What [Mr. Fazzini] seeks to do is modify the agreed order out of existence. He is asking that the rights awarded to [Mrs. Davis] by his voluntary and counseled agreement be terminated. He alleges in his third amended petition that there has been a substantial change in circumstances which justify terminating those rights to which he agreed in Virginia. [Mr. Fazzini] argues that the legal standard should not be the tradition[al] family law standard announced in Wade v. Hirschman, 903 So.2d 928 (Fla.2005) [,] because Florida does not recognize the grandparent's right which is recognized in Virginia. The argument is that the lawful order of Virginia should not be given Full Faith and Credit in Florida.

Although this is not a custody case, [Mr. Fazzini] has styled it as such in his pleadings. It certainly is a time-sharing case. The Court can find no case which suggests any legal standard for modification of a time-sharing order other than a showing by the moving party that a substantial and significant change in circumstances of the parties must first be established by the evidence, and only then can the Court go to the second step of determining whether the modification sought is in the best interest of the child. The change must be significant, material, involuntary, permanent, and unanticipated. Measured against this standard [Mr. Fazzini] cannot support his modification request on the adoption of the child by [Mrs. Tiffany Fazzini] as he voluntarily consented to the adoption. The distrust between [Mr. Fazzini] and [Mrs. Davis] is not a change in circumstances. The other grounds alleged in paragraph 7 of the third amended petition are not supported by the evidence.

Mr. Fazzini appeals this order denying him modification of the Virginia judgment. He raises two issues: (1) that the trial court erred as a matter of law by giving the Virginia judgment full faith and credit; and (2) that the trial court applied the incorrect standard in denying modification. As noted previously, on the first issue we disagree and conclude that the trial court was constitutionally bound to give the Virginiajudgment full faith and credit by reason of the Full Faith and Credit Clause, article IV, section 1 of the United States Constitution (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”). See Baker v. Gen. Motors Corp., 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). It is Mr. Fazzini's second issue that has merit and requires that we reverse the trial court's order denying modification of the Virginia court's judgment that granted Mrs. Davis visitation rights.

Discussion

Although he sought domestication of the Virginia judgment, and received it,² Mr. Fazzini contends that the trial court should not have given the Virginia judgment full faith and credit. These two concepts—domestication of a foreign order and full faith and credit—are inextricably interwoven and one cannot be had without the other. Section 55.502, Florida Statutes (2008), defines “foreign judgment” as “any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.” The record establishes without question that the Virginia court, at the time it entered the judgment settling the suit between Mrs. Davis and Mr. Fazzini, possessed subject matter jurisdiction and personal jurisdiction under its codification of the Uniform Child Custody Jurisdiction and Enforcement Act. SeeVa. Code. Ann. §§ 20–146.1 to .38 (2008). Thus the trial court was required to recognize the Virginia judgment, give it full faith and credit, and domesticate it. See Zitani v. Reed...