Kyle v. Carter, No. 1D19-2014
Decision Date | 19 February 2020 |
Docket Number | No. 1D19-2014 |
Citation | 290 So.3d 640 |
Parties | Melissa KYLE, Appellant, v. Hubert CARTER Jr., Appellee. |
Court | Florida District Court of Appeals |
Adrian S. Middleton of Middleton & Middleton, P.A., Tallahassee, for Appellant.
Charles Daniel Sikes of Charles Daniel Sikes, P.A., Starke, for Appellee.
Melissa Kyle appeals an order granting her former husband's petition for modification of timesharing. Kyle also appeals a contempt order rendered about nine months before the modification order. For the reasons that follow, we reverse the order on timesharing, but we dismiss as untimely the appeal of the contempt order.
Melissa Kyle and Hubert Carter, Jr. were married from 2006 until 2012, when they separated. One child was born of the marriage. After dissolution of the marriage, the trial court entered an order permitting Carter to have supervised timesharing with the child every other weekend. The order provided for no contact between Carter and Kyle during the custody exchanges because Kyle obtained an injunction against domestic violence against Carter. Under the order, the exchanges were to take place at an aunt's house.
In 2018, Carter moved to hold Kyle in contempt for not complying with the timesharing order. Carter alleged that he had not seen the child since 2015 because Kyle refused to deliver the child to the aunt's house. The trial court held Kyle in contempt of the timesharing order in an order rendered on July 23, 2018. Kyle did not file a notice of appeal regarding that order.
Carter also relied on Kyle's willful disregard of the court's orders on timesharing to request a modification of timesharing. Carter asked the court to eliminate the requirement for supervised visitation and to allow him to visit the child every other weekend.
After a hearing, the trial court found a substantial change in circumstances and concluded that unsupervised visitation was in the child's best interests. The court retained the requirement that Kyle deliver the child to the aunt's house for custody exchanges.
Kyle moved for rehearing, arguing that Carter's petition was legally insufficient and challenging the trial court's failure to make the necessary findings in support of modification. The trial court denied the motion for rehearing. This timely appeal follows. Kyle attached to her notice of appeal the timesharing order and the denial of her rehearing motion—but not the contempt order.
We begin with Kyle's challenge to the trial court's order holding her in contempt for not complying with the timesharing order. A post-judgment contempt order is an appealable final order. Orban v. Rorrer , 279 So. 3d 234, 236 (Fla. 3d DCA 2019). Thus, Kyle should have filed her notice of appeal of the contempt order within thirty days of its issuance. Her failure to do so deprives this Court of jurisdiction to hear the appeal. See Fla. R. App. P. 9.110(h) ( ). Thus, we dismiss her appeal of the contempt order.
Kyle next challenges the trial court's order modifying timesharing. She argues that Carter's petition for modification was insufficiently pleaded and also that the trial court failed to make the proper factual findings in support of modification. Carter concedes both points and agrees that the timesharing order should be reversed. We agree, too.
First, the trial court erred by not denying Carter's petition for modification as facially insufficient. Carter did not plead a substantial, material, and unanticipated change in circumstances or allege how the child's best interests would be served by modification. See Korkmaz v. Korkmaz , 200 So. 3d 263, 265 (Fla. 1st DCA 2016) ( ). Because Carter's petition contained only conclusory allegations, we reverse the order granting modification of timesharing. Cf. id. ; see Bon v. Rivera , 10 So. 3d 193, 195–96 (Fla. 4th DCA 2009) ; Bartolotta v. Bartolotta , 687 So. 2d 1385, 1387 (Fla. 4th DCA 1997).
Second, the trial court erred by failing to make the...
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...whatsoever renders a custody order legally insufficient. See Winters v. Brown, 51 So.3d 656, 658 (Fla. 4th DCA 2011); Kyle v. Carter, 290 So.3d 640, 642 (Fla. 1st DCA 2020); Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002); In re Z.L., 4 So.3d 684, 685 (Fla. 2d DCA 2009); In Int. of......