In re NZB

• Decision Date: 08 December 2000
• Docket Number: No. 2D00-2445., No. 2D00-1147
• Citation: In re NZB, 779 So.2d 508 (Fla. App. 2000)
• Court: Florida District Court of Appeals
• Parties: In the INTEREST of: N.Z.B. and M.T.B., Children. K.N.B., Father, Appellant, v. M.C., Grandmother, Appellee.

779 So.2d 508

In the INTEREST of: N.Z.B. and M.T.B., Children.

K.N.B., Father, Appellant, v.M.C., Grandmother, Appellee.

Nos. 2D00-D00-2445.

District Court of Appeal of Florida, Second District.

December 8, 2000.

Rehearing Denied February 5, 2001.

Virginia R. Vetter of Vetter & Hunter, Tampa, for Appellant.

Jane H. Grossman of Law Offices of Jane H. Grossman, St. Petersburg, for Appellee.

ALTENBERND, Judge.

K.N.B., the legal father of N.Z.B. and M.T.B., challenges an order of the trial court giving custody of his children to M.C., their maternal grandmother.This order was entered in a dissolution proceeding following the death of the mother.The father filed an extraordinary writ in this court maintaining that the trial court lacked jurisdiction to enter such an order, and also filed a final appeal of the order because it appears to be the last order that the trial court can enter in this proceeding.We review this order as a final order and reverse.

The mother and father married in 1991.Their two children were born in 1992 and 1994, when the mother and father were still in college or postgraduate programs.The mother apparently suffered from bipolar disorder and experienced some difficulties with alcohol.During the marriage, the couple and their children maintained close contact with the wife's mother, i.e., the children's maternal grandmother.The couple separated in mid-1997.

Thereafter, before filing any dissolution action, the couple mediated the terms of their separation.Neither party was represented by counsel at that time.Although the maternal grandmother is a licensed attorney with marital law experience, there is no evidence that she played any role in mediating this initial agreement.The mediation agreement, which was executed in October 1997, provided the parties would share parental responsibility for the children, with the wife as primary residential parent.The agreement included typical provisions for child support from and visitation with the father.

After the separation, the mother and children went to live with the maternal grandmother.Thus, it is undisputed that the two children have lived in the maternal grandmother's home since August 1997.Because of the mother's depression and the events described in this opinion, the grandmother has effectively served as the surrogate mother for these children for over three years.The record suggests that she has been an excellent guardian for these children.Likewise, the record suggests that the father has been intimately involved with the children during this time, exercising liberal visitation with the children and meeting his child support obligations.

The mother, through counsel, finally filed a dissolution petition in May 1998.Little occurred in that proceeding over the next six months.In the fall of 1998, the mother's battle with her condition worsened, and she suffered depression and instability.The grandmother retained an attorney who prepared a joint stipulation authorizing the grandmother to intervene in the dissolution action, to have the "same standing as the parents in evaluating what custody arrangements are in the best interests of the children."This language tracks the language in section 61.13(7), Florida Statutes(1997).The grandmother attached to the stipulation a petition in which she requested the primary residential care of the children and shared parental responsibility with the parents, pursuant to section 61.13(7).The mother and father signed the stipulation, indicating their agreement to the grandmother's intervention and their acceptance of service of the grandmother's petition.The father was still not represented by counsel.On December 14, 1998, the trial court entered an order accepting the stipulation, allowing the grandmother to intervene in the dissolution action, and ordering the parties to file any responsive pleading they desired to the grandmother's petition.

On January 8, 1999, the grandmother's attorney filed an "Addendum to Mediation Agreement" in the dissolution proceeding.This document, signed in December by the mother, the father, and the grandmother, amended the earlier mediation agreement and provided that all three people would have shared parental responsibility.They further agreed that the grandmother would have "temporary and permanent primary residential care" of the children.No one asked the court in January to take any action on this amendment.Instead, the grandmother's attorney motioned the trial court to set a nonjury trial on her petition.Trial was set for February 18, 1999.

Three days before the addendum to the agreement was filed in the circuit court, the First District held section 61.13(7) unconstitutional.SeeRichardson v. Richardson,734 So.2d 1063(Fla. 1st DCA1999), aff'd,766 So.2d 1036(Fla.2000).Richardson was binding precedent upon the circuit court because no conflicting decision had been issued by this district or any other district.SeeChapman v. Pinellas County,423 So.2d 578(Fla. 2d DCA1982).It is unclear whether the lawyers or the trial judge were aware of the Richardson decision, but the case was not formally disclosed to either the trial court or the father.¹

In late January, the mother's condition took a major turn for the worse.She was hospitalized and ultimately died on February 3, 1999.During this hospitalization, on February 1 or 2, the grandmother's attorney delivered to the trial judge an order approving the addendum to the mediation agreement along with a cover letter.²The letter did not discuss the unusual tripartite custody arrangement or the mother's health, but stated that the "proposed order simply approves and ratifies the agreement between the parties."The letter indicated that the order had been approved by an attorney, but the letter did not specify that this attorney represented the mother.Unaware that the father had not been provided notice of the proposed order and its submission to the court, the trial court signed the order on February 2, a day before the mother died.

On February 9, an attorney filed an appearance on behalf of the father.The father moved to dismiss the dissolution proceeding in light of the wife's death and also moved to set aside the February 2 order.The trial court set the order aside on February 18, 1999, primarily on the ground that the husband had not received an opportunity to review the order prior to its entry.

Over the following months, the father and grandmother had many disputes arising out of the desire of each party to have custody of the children.The parties advanced diametrically opposing positions.The father maintained that the mother's death divested the trial court of jurisdiction to take any action and that custody of the children remained with the father as the sole surviving natural parent.The grandmother maintained that the trial judge retained jurisdiction despite the wife's death because the grandmother had been allowed to intervene to seek custody.The grandmother argued that the trial court must enforce the stipulation giving her permanent custody unless the father proved that he signed it under duress, fraud, coercion, or misrepresentation.

In August, the trial court decided to "bifurcate" the proceeding and determine first the validity of the agreement.³In November 1999, the trial court conducted an evidentiary hearing.Following the hearing, the trial court entered an order in December 1999 approving the addendum to the mediation agreement on the grounds that it had been "freely and voluntarily" entered into by the father.The order refused to dismiss the proceeding and affirmatively retained jurisdiction over the children until they reach the age of majority.As an order entered in a bifurcated proceeding, it is not entirely obvious that this order is the trial court's final order, but by incorporating the terms of the agreement, nothing further remained for resolution in that court.To make matters more confusing, when the father moved for rehearing, the trial court denied the motion declaring that the order was neither final nor "binding" on the parties.

Despite the trial court's assessment of its order, we conclude that the December order is binding on the parties and is a final, appealable order.For the purpose of this opinion, we assume, without deciding, that the trial court did retain jurisdiction over the custody dispute following the mother's death given the order permitting the grandmother to intervene and petition for relief.⁴We conclude, however, that the trial court erred by enforcing the addendum to the mediation agreement.

The addendum executed in December 1998 was based on both legal and factual circumstances that changed dramatically prior to either...