Hughes v. Binney
| Decision Date | 27 November 2019 |
| Docket Number | No. 1D18-3275,1D18-3275 |
| Citation | 285 So.3d 996 |
| Parties | Robynn N. HUGHES, f/k/a Robynn N. Binney, Former Wife, Appellant, v. Robert BINNEY, Former Husband, Appellee. |
| Court | Florida District Court of Appeals |
Ross A. Keene, Pensacola, for Appellant.
Robert Binney, pro se, for Appellee.
Ms. Hughes seeks review of a modification of time-sharing, arguing that the terms set forth by the lower court for future reinstatement of equal time-sharing are contrary to section 61.13(3), Florida Statutes. We agree and reverse that portion of the order on appeal.
The parties were divorced in 2016, at which time they agreed to equally share in parental responsibility and time-sharing of their two minor children. The arrangement began to show cracks shortly thereafter when Mr. Binney was faced with a cascading series of medical issues and attendant complications, which left him unable to fully fulfill his role as agreed upon in the divorce. This led Ms. Hughes to request that the trial court modify the final judgment dissolving the marriage to grant her sole parental responsibility, with Mr. Binney allowed supervised visitations. At the final hearing, multiple witnesses testified to having observed Mr. Binney in an "impaired" state while the minor children were under his watch, and military police officers described responding to calls involving Mr. Binney. On one occasion, Mr. Binney was passed out in the parking lot of the children's daycare. He exhibited slurred speech, had difficulty standing, and was found clutching an aerosol can to his chest. On another occasion, Mr. Binney was observed driving erratically while the children were in the car. Additionally, military police were called to Ms. Hughes' house following a display of mercurial behavior by Mr. Binney that resulted in his arrest for battery. Testimony established another unfortunate episode involving a firearm during which Mr. Binney shot off his own toe.
Mr. Binney testified that prior to the hearing, he checked himself into and completed a twenty-seven-day inpatient rehabilitation program. He acknowledged having an opioid addiction before attending rehab. He denied that he participated in "huffing" that caused him to fall asleep in his car at the daycare center. He further denied that he used "huffing" as a substitute for pain medications.
At hearing, the trial court expressed concern with respect to Mr. Binney's driving, and that because he resided with his father, who was a heavy smoker, the children would also be exposed to second-hand smoke. Further, the trial court determined that Mr. Binney was in denial regarding his addiction and found his testimony regarding "huffing" to be noncredible. The trial court indicated that the parties could resume 50/50 timesharing at some point when Mr. Binney was "healthy."
The trial court granted Ms. Hughes' petition for modification but found Ms. Hughes had failed to prove that Mr. Binney poses any danger to the minor children in the home. However, the trial court believed he did pose a danger when driving. The trial court crafted a new time-sharing schedule in which Mr. Binney was assigned a reduced time-sharing allowance of every other Saturday and Sunday from 9 a.m. to 6 p.m., in addition to a weekday after-school option. Ms. Hughes, the trial court ordered, would have the remainder. The trial court's order also made several additional provisions. Provision twenty directed that:
If [Mr. Binney] completes Veterans' court, obtains his own residence, and has no motor vehicle violations for a calendar year commencing March 30, 2018, visitation shall revert to 50/50 time sharing as outlined in the original Final Judgment of Dissolution of Marriage dated April 27, 2016.
It is this provision that Ms. Hughes now appeals. Specifically, she argues that the court's automatic future reinstatement of equal time-sharing was an abuse of discretion under Arthur v. Arthur , 54 So. 3d 454 (Fla. 2010). We agree.
A time-sharing schedule "may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child." § 61.13(3), Fla. Stat....
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Mallick v. Mallick
...court abused its discretion by failing to set forth steps father must take in order to reestablish time-sharing); Hughes v. Binney, 285 So. 3d 996, 998 (Fla. 1st DCA 2019) (observing that nothing prevents a court from instructing a parent "as to steps they might take to sufficiently cure wh......
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Robbins v. Kerns
...modifying a time-sharing schedule that attempts to anticipate what the future best interests of a child will be." Hughes v. Binney , 285 So. 3d 996, 998 (Fla. 1st DCA 2019) ( quoting Arthur v. Arthur , 54 So. 3d 454, 458–59 (Fla. 2010) ); see also Preudhomme v. Preudhomme , 245 So. 3d 989, ......
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Harrell v. Cook
...of the child for the parties to continue to rotate weekly timesharing until the child entered kindergarten); see also Hughes v. Binney , 285 So. 3d 996 (Fla. 1st DCA 2019) (holding that lower court erred by engaging in prohibited prospective-based analysis when it attempted to anticipate wh......
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Ringenberg v. Ringenberg
...court cannot consider the best interest of a child if that child's parent is prohibited from raising the issue. See Hughes v. Binney , 285 So. 3d 996, 998 (Fla. 1st DCA 2019) (holding that "enumerating conditions precedent to an automatic future modification" is essentially "a prospective d......