McAlister v. Shaver, 92-2960

• Decision Date: 04 March 1994
• Docket Number: No. 92-2960,92-2960
• Parties: 19 Fla. L. Weekly D492 Ronald McALISTER, Appellant, v. Wanda L. SHAVER, Appellee.
• Court: Florida District Court of Appeals

Page 494

633 So.2d 494

19 Fla. L. Weekly D492

Ronald McALISTER, Appellant, v. Wanda L. SHAVER, Appellee.

No. 92-2960.

District Court of Appeal of Florida,

Fifth District.

March 4, 1994.

Charles E. Gordon, Winter Park, for appellant.

Robert A. DuChemin of DuChemin & DuChemin, P.A., Orlando, for appellee.

EN BANC

PETERSON, Judge.

Ronald A. McAlister appeals a final order denying his petition to modify a final judgment of dissolution of his marriage to Wanda L. Shaver to provide for reasonable and specific visitation with his four-year-old daughter. We reverse and remand for further proceedings.

The parties were married on September 9, 1988 but separated just three months later. In early February, 1989, Wanda filed her petition for dissolution of marriage alleging that she was pregnant and expected to deliver the parties' child in late June. At first, Ronald denied that he was the father of the child, but, after the child was born, the parties entered into a marital settlement agreement which required Ronald to pay $119.14 per month child support until the child's emancipation. It also required Ronald to pay the medical expenses Wanda incurred during her pregnancy which were not covered by insurance. The agreement provided that Wanda would have sole parental responsibility and that she could change the surname of the expected child. The agreement was totally silent as to any visitation rights or waivers of visitation.

On August 8, 1990 the court entered a judgment of dissolution which incorporated by reference the terms of the settlement agreement. The terms of the child support were specifically repeated in the judgment, but, like the settlement agreement, the judgment did not address the issue of visitation. Ronald later testified that on several occasions he did ask his lawyer about visitation rights but was told not to worry; he would have visitation rights. ¹ He testified that he Finally, in April, 1992, Ronald filed a Supplemental Petition for Modification. In this petition, Ronald alleged the final judgment awarded his former wife "sole parental responsibility without addressing [his] visitation rights and the best interest of the child." Ronald asked for an order modifying the final judgment to provide for shared parenting and specific and reasonable visitation. Ronald also prayed for attorney's fees and an award of other relief the "court deems just and proper under the circumstances." The trial court denied modification after Ronald presented his case-in-chief finding that no change of circumstances was shown to have occurred between the time of the final judgment and the modification hearing. Subsequently the court entered a final judgment denying the petition. In this appeal Ronald asserts the trial court erred in denying his "modification" petition in which he sought specific and reasonable visitation rights, where the original judgment of dissolution failed to mention visitation at all.

attempted to see his child by visiting Wanda's residence several months after the child was born and again several months after the first effort. Wanda would not allow access to her home or to the child either time. Ronald briefly saw the child only on two occasions, once through the door of Wanda's residence as she was closing it and by chance when he saw Wanda and the child walk in front of his car as he waited in line at the drive-in window of a fast food restaurant.

We address first, generally, a parent's right of visitation. A parent has a constitutionally protected "inherent right to a meaningful relationship with his children." Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991). It is a basic proposition that a parent has a natural legal right to enjoy the custody, fellowship and companionship of an offspring. Kent v. Burdick, 591 So.2d 994, 996 (Fla. 1st DCA 1991). The only limitation to this rule of parental privilege is that between parent and child, the ultimate welfare of the child must be controlling. Id. Visitation with a child should never be denied as long as the visiting parent conducts himself or herself, while in the presence of the child, in a manner which will not adversely affect the child's morals or welfare. Yandell v. Yandell, 39 So.2d 554, 555 (Fla.1949).

Section 61.13(2)(b)2.b requires that in a dissolution proceeding a "court shall order 'sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests' of the minor child." It is the duty of a trial judge to consider the relationships between parents and child in a dissolution action and to address visitation rights in an order when sole parental responsibility is awarded. Sec. 61.13(2)(b)2.b, Fla.Stat. (1991). The court's responsibility to the child cannot be abdicated to any parent or expert. A court is not bound by any agreement between parents. Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992); Bolton v. Gordon, 201 So.2d 754 (Fla. 4th DCA 1967); Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). A trial court has the authority to decline to follow a settlement agreement between the parties relating to child custody, visitation, and support. Holland v. Holland, 458 So.2d 81 (Fla. 5th DCA 1984).

In Johnston v. Boram, 386 So.2d 1230 (Fla. 5th DCA 1980), the mother appealed a final judgment of dissolution awarding custody of her two minor children to their father and failing to award any visitation to her. The custody award to the father was affirmed, but the matter was remanded to the trial court for an order granting reasonable visitation rights to the mother. In doing so, this court held that:

[t]he noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child. Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974).

Johnston at 1230.

Having noted that Ronald had an inherent right as a parent to a meaningful relationship with his child through visitation and that a trial court has the obligation to consider the right of visitation in light of the child's best We agree with the trial court that Ronald's unilateral expectations of visitation could not form the basis of the substantial change of circumstances required to be shown in order to satisfy the extraordinary burden in modification proceedings. Zediker v. Zediker, 444 So.2d 1034 (Fla. 1st DCA 1984); see also McGregor v. McGregor, 418 So.2d 1073 (Fla. 5th DCA 1982). The trial court erred, however, in not correcting the original final judgment's failure to address visitation. Although the husband's petition was termed a petition for modification, the focus of the proceeding was on the original court's failure to address Ronald's right of visitation. The court should have corrected this omission by making an initial determination of the father's visitation rights. See Evans v. Evans, 595 So.2d 988, 990 (Fla. 1st DCA 1992) (where original final judgment contained no child support award, and husband in modification proceeding raised issue of this omission, court should have looked at modification petition as initial petition for support).

interests, we turn now to the manner in which Ronald sought his inherent right of visitation after failing to appeal the original judgment of dissolution. Ronald attempted to gain visitation by filing a "Supplemental Petition for Modification" two years after the original judgment was entered. Ronald contended that, based upon his attorney's advice, he expected to have visitation rights after the final judgment of dissolution. He argued that the denial of visitation subsequent to the entry of judgment was a change in circumstances because he had expected to be able to visit when the final judgment was silent on the matter.

The mother's answer concedes that the original judgment failed to address the important issue of visitation and the mother never argued that Ronald's request for visitation was barred by the doctrine of res judicata. Further, even if she had raised the affirmative defense of res judicata pursuant to Rule 1.110(d), Florida Rules of Civil Procedure, it is doubtful that the doctrine would have applied in this case with respect to the visitation question. A dissolution action involving the parents' rights and responsibilities vis a vis their children is unlike a tort or contract action where a party that does not raise particular causes of action or defenses is barred from raising them in a subsequent suit. Section 61.13 imposes an affirmative duty to declare the parties' child support obligations and custody and visitation rights. Where a court fails to address such matters in the final judgment it is questionable whether such matters are finally adjudicated because they "might have been presented and determined in the first suit." Reynolds v. Reynolds, 117 So.2d 16, 20 (Fla. 1st DCA 1959).

In the judgment of dissolution when the court ordered "sole parental responsibility" to the mother without addressing the visitation rights of the noncustodial father, it acted in contravention of section 61.13(2)(b)2.b, Florida Statutes, which directs a court to "order 'sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of ' the minor child." Because no determination has yet been made as to the father's visitation rights, we remand the case to the trial court for an initial determination of this sole issue. On remand the trial court shall give the parties an opportunity to present evidence as to the best interests of the child. We also suggest but do not require that the trial court appoint a guardian ad litem to represent the child's interest in this matter. Section 61.401, Fla.Stat. (1993); see Cortina v. Cortina, 108 So.2d 63 (Fla. 2d DCA 1958).

REVERSED; REMANDED.

HARRIS, C.J., and DAUKSCH, COBB, W. SHARP, GOSHORN and DIAMANTIS, JJ., concur.

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