Moncher v. Maine, 5D03-2955.

• Decision Date: 14 January 2005
• Docket Number: No. 5D03-2955.,5D03-2955.
• Citation: 892 So.2d 1147
• Parties: Mark MONCHER, Appellant, v. Kris MAINE, Appellee.
• Court: Florida District Court of Appeals

892 So.2d 1147

Mark MONCHER, Appellant, v. Kris MAINE, Appellee.

No. 5D03-2955.

District Court of Appeal of Florida, Fifth District.

January 14, 2005.

Rehearing Denied February 9, 2005.

Linda D. Schoonover of Linda D. Schoonover, P.A., Altamonte Springs, for Appellant.

Maureen Monaghan Matheson, of Reinman Matheson Vaughan & Durham, P.A., Melbourne, for Appellee.

MONACO, J.

This appeal, growing out of a post-judgment custody dispute, presents the question of whether relief in the form of mandatorily imposed anger management classes may be imposed on a non-custodial parent when that relief was not specifically requested by the opposing party. Because the requirement was imposed in a proceeding in which the entire issue of custody and visitation was considered, we conclude that it was appropriate for the trial court to impose this condition, and accordingly find no error.

The relationship between the appellant, Mark Moncher, and the appellee, Kris Maine, was initially adjudicated in 2000, by a mediated final judgment resolving the issues of paternity, primary residence and parental responsibility for J.M., a minor child that resulted from a relationship between the litigants. Ms. Maine was named the primary residential parent for J.M., while Mr. Moncher was designated as secondary residential parent, and was required to pay support for the child. The parties were to share parental responsibility, and the visitation allowed was liberal. This judicially sanctioned relationship seemed to work satisfactorily for about a year, after which it rapidly deteriorated. The parties engaged in what the trial judge described as "visitation skirmishes" over the course of the next three years,¹ culminating in the Modified Final Judgment and Summary of Case To Date, from which Mr. Moncher appeals.

The Modified Final Judgment, based on petitions to modify filed by both parents, substantially reduced the amount, quality and terms of visitation to be accorded to Mr. Moncher. The new judgment limited Mr. Moncher to short periods of supervised visitation, and required him to "successfully complete a certified twenty-six week anger management course" within a designated time frame, and then to file a certificate of successful completion of the course in the court file. Mr. Moncher was threatened with further restrictions on his visitation should he fail in this regard. The anger management requirement had not been requested by Ms. Maine in any pleading, and had never been noticed for hearing, although evidence of Mr. Moncher's propensities towards uncontrolled anger were received in evidence at the evidentiary hearing that grew out of the petitions for modification. Mr. Moncher asserts that the trial court abused its discretion in ordering him to complete the anger management classes. We believe that under the circumstances, the trial judge did not abuse his discretion, and was authorized to order this remediation.

The issue facing us has been addressed on a number of occasions by the courts of Florida. In Williams v. Williams, 690 So.2d 601 (Fla. 1st DCA 1996), the case primarily relied on by Mr. Moncher, the trial court in a post-dissolution enforcement proceeding required the former husband to obtain alcohol abuse counseling and to attend parenting classes, neither of which were discussed in the pretrial statement filed in the case, nor requested in the former wife's pleadings. In reversing, the First District Court of Appeal held that it was an abuse of discretion to render an order that exceeded the scope of relief sought by the pleadings, "absent notice which affords the opposing party an opportunity to be heard with respect to the proposed relief." Id. at 603.

In Shaw v. Shaw, 760 So.2d 981 (Fla. 4th DCA 2000), however, the Fourth District Court of Appeal considered the subject in a somewhat different context. There, the trial court had for consideration the dissolution of the marriage between the parties, including all of the issues associated with the offspring of the marriage. In the course of its final order, the trial court required the non-custodial parent to attend a thirty-six week parenting course. The non-custodial parent appealed, saying that he had received no notice that this would be considered, because the requirement for the parenting course had not been pled by the opposing party. The district court rejected this contention and found no error in the order. In doing so, it expressed disagreement with Williams to the extent that Williams required the attendance at parenting classes to be pled.

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