Mallick v. Mallick

• Decision Date: 16 October 2020
• Docket Number: Case No. 2D19-1183
• Parties: Deidre MALLICK, Appellant, v. Blake MALLICK, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 243

Deidre MALLICK, Appellant,

v.Blake MALLICK, Appellee.

Case No. 2D19-1183

District Court of Appeal of Florida, Second District.

Opinion filed October 16, 2020

EN BANC

NORTHCUTT, Judge.

The Mallicks' 2015 divorce judgment awarded Deidre Mallick the majority of the parenting time with the parties' minor child pursuant to a time-sharing plan contained in a marital settlement agreement. In this appeal, she challenges a 2019 supplemental final judgment that modified the parties' parenting plan to grant the majority of time to her former husband, Blake Mallick. We affirm the modification judgment. In doing so, we must recede from or clarify several of our prior decisions.¹

As she did below, Deidre here acknowledges that there was a substantial change in material circumstances warranting a modification under section 61.13(2)(c) and (3), Florida Statutes (2017). Although the parties litigated over the nature and form that the modification should take, on appeal Deidre contests neither the trial court's factual findings nor the terms of her time-sharing under the supplemental judgment. She contends only that the court erred by failing to delineate what she must do to regain majority time-sharing with the child and by otherwise failing to outline how she may regain "meaningful" time-sharing.

Florida decisional law on this topic is conflicting. This court and the Third and Fourth District Courts of Appeal have held that when a trial court denies or restricts a parent's time-sharing with his or her child, it must specify steps for the parent to take in order to regain meaningful time-sharing. See, e.g., Grigsby v. Grigsby, 39 So. 3d 453, 456–57 (Fla. 2d DCA 2010) ; Lightsey v. Davis, 267 So. 3d 12, 15 (Fla. 4th DCA 2019) ; Solomon v. Solomon, 251 So. 3d 244, 245–46 (Fla. 3d DCA 2018). The First and Fifth hold to the contrary, arguing that section 61.13 neither requires nor authorizes courts to prescribe terms beyond the express provisions of the statute. See C.N. v. I.G.C., 291 So. 3d 204, 207 (Fla. 5th DCA 2020) ; Dukes v. Griffin, 230 So. 3d 155, 156–57 & 157 n.1 (Fla. 1st DCA 2017).

Today we steer the law of this district closer to that of the First and Fifth but only insofar as they hold that the failure to specify such steps or benchmarks is not legal error. We disagree with any suggestion that these provisions are disallowed because they are not expressly authorized by statute.² Rather, we conclude that whether to include them in a judgment or order is a matter of judicial discretion.

The proposition that in these matters courts may act only within the bounds of what is explicit in chapter 61 subverts an elemental tenet of Florida's family law jurisprudence. The very first sentence in chapter 61 instructs that "[t]his chapter shall be liberally construed and applied." § 61.001, Fla. Stat. (2017). Further, proceedings under the chapter are in chancery. § 61.011. Accordingly, "proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. ... The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings." Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) ; see also Wade v. Hirschman, 903 So. 2d 928, 933 n.11 (Fla. 2005) (citing section 61.011 and emphasizing "the intent of the Legislature to give trial judges wide latitude to work equity in chapter 61 proceedings"); Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002).

The history of Florida family law includes many examples of these principles at play. For instance, Florida's judiciary adopted and enforced the concepts of marital property and equitable distribution more than eight years before the legislature did so by enacting an equitable distribution statute. See Ch. 1988-98, § 1, Laws of Fla.; § 61.075, Fla. Stat. (Supp. 1988); Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980) ; Gardner v. Gardner, 452 So. 2d 981, 983 (Fla. 5th DCA 1984) ("Equitable distribution is a court evolved concept in Florida."). The equitable distribution statute was amended in 1991 to mandate written findings to support and explain the courts' property distributions—well after appellate courts began requiring them. See Ch. 1991-246, § 2, Laws of Fla.; § 61.075(3), Fla. Stat. (1991) ; O'Leesky v. Liggett, 544 So. 2d 268 (Fla. 1989) ; Clemson v. Clemson, 546 So. 2d 75, 78 (Fla. 2d DCA 1989) ; Miceli v. Miceli, 533 So. 2d 1171, 1172–73 (Fla. 2d DCA 1988).

The same 1991 session law established the first statutory directive to make written findings of fact to support awards or denials of alimony. See Ch. 1991-246, § 3, Laws of Fla.; § 61.08(1), Fla. Stat. (1991). Again, such findings had already been required by caselaw. See, e.g., Kim v. Bradshaw, 569 So. 2d 532, 532 (Fla. 1st DCA 1990), and cases cited; Strickler v. Strickler, 548 So. 2d 740, 740 (Fla. 1st DCA 1989). Likewise, the law governing the relocation of children was established by appellate courts well before the legislature addressed the topic. See Ch. 1997-242, § 1, Laws of Fla.; § 61.13(2)(d), Fla. Stat. (1997) ; Mize v. Mize, 621 So. 2d 417, 420 (Fla. 1993) ; Hill v. Hill, 548 So. 2d 705, 706 (Fla. 3d DCA 1989). The same is true of what once was referred to as "rotating custody." See Ch. 1997-242, § 2, Laws of Fla.; § 61.121, Fla. Stat. (1997) ; Bienvenu v. Bienvenu, 380 So. 2d 1164, 1165 (Fla. 3d DCA 1980).

If courts were obliged to hew strictly to what is expressly delineated in chapter 61, none of the important caselaw described in the preceding paragraphs would have come about. In fact, in many respects the chapter's provisions are simply codifications of preexisting caselaw. In other instances, the legislature has acted to resolve differences among courts. Still other statutes have departed in large or small part from prevailing judicial authority. But the equitable power of the courts to devise and apply principles for deciding the myriad issues that arise in family law matters has remained untouched by the legislature and cannot be doubted.

Even more basically, the independent, inherent power and responsibility of courts to protect the interests and welfare of children is firmly established wholly aside from chapter 61. See Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 465 (1933) ; see also Cone v. Cone, 62 So. 2d 907, 908 (Fla. 1953), and Pollack v. Pollack, 159 Fla. 224, 31 So. 2d 253, 254 (1947) (stating that courts of equity have inherent jurisdiction to protect infants who are wards of the court). This authority prevails in the absence of a statutory provision expressly removing it. Fisher v. Guidy, 106 Fla. 94, 142 So. 818, 821 (1932) ; see also Cone, 62 So. 2d at 908. Thus, for example, a court may act in an emergency to temporarily suspend a party's time-sharing even though chapter 61 makes no express provision for emergency orders. See, e.g., Forssell v. Forssell, 188 So. 3d 880, 881 (Fla. 4th DCA 2016) (affirming in part nonfinal order on emergency motion to suspend father's timesharing with parties' children).³

Accordingly, a court's decision to set forth benchmarks or the like in a time-sharing order turns on equitable considerations, "governed by basic rules of fairness as opposed to the strict rule of law." Rosen, 696 So. 2d at 700. It is a matter for the trial court to determine in its discretion according to the circumstances, and it is reviewable as such. See Forssell, 188 So. 3d at 881 (partially reversing emergency suspension of time-sharing because trial 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 what might be ailing them and preventing their presence from being in the best interest of a child's life").

As mentioned, our previous decisions have suggested that this issue is purely one of law. In Grigsby, this court partially reversed a nonfinal order " ‘temporarily completely’ suspending" time-sharing between the children and their mother. 39 So. 3d at 455. That extreme measure, albeit justified by the best interests of the children at the time, implicated the mother's fundamental constitutional right to parent her children, the children's interest in maintaining their relationships with their mother, and the important policy announced by the legislature in section 61.13(2)(c)(1) : "It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing." Thus, the court was required to balance the mother's "longstanding and fundamental liberty interest" in rearing her children, Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996) (quoting Padgett v. Dep't of Health & Rehab. Servs., 577 So. 2d 565, 570 (Fla. 1991) ), against the legislature's directive to "determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child." § 61.13(2)(c).

Consistent with those important principles, Grigsby directed the trial court on remand to give the mother the guidance necessary for her and the children to safely reestablish their time-sharing. Grigsby, 39 So. 3d at 456–57. This was clearly within the authority granted to courts in section 61.13(5) to "make specific orders regarding the parenting plan and time-sharing schedule as such orders relate to the circumstances of the parties and the nature of the case and are equitable ...." And it was fully within the scope of section 61.052(3): "During any period of continuance, the court may make appropriate orders for the support and alimony of the parties; the parenting plan, support, maintenance, and education of the minor child of...