Moore v. Trevino, 90-3050
| Decision Date | 30 December 1992 |
| Docket Number | No. 90-3050,90-3050 |
| Citation | 612 So.2d 604 |
| Parties | 18 Fla. L. Week. D127 Melissa R. MOORE, Appellant, v. Cezar TREVINO, Appellee. |
| Court | Florida District Court of Appeals |
Kathryn M. Beamer of Kathryn M. Beamer, P.A., West Palm Beach, for appellant.
Stephen R. Koons and Maxine A. Braten of Jeffrey A. Miller, P.A., Palm Beach Gardens, for appellee.
Melissa Moore seeks review of an order entered pursuant to her 1990 petition for modification of a 1986 judgment of paternity. We reverse.
Appellant challenges the trial court's jurisdiction to award shared parental responsibility to the father in the modification order, certain findings of fact in three paragraphs of the order, the award of unsupervised grandparental visitation, an award of visitation to the child's aunts as well as its exclusion of evidence regarding a paternal aunt and statements the child made to the mother regarding the grandfather. She also appeals the trial court's denial of her prayer for attorney's fees.
Appellant and the child's biological father, appellee Cezar Trevino, were never married. Appellant's relationship with appellee ceased before the child's birth and did not resume until the child was three years old. Neither appellee nor his parents asked to see the child for the first three years of her life. However, appellant testified that she felt it was important for the child to know her father. In the 1986 final judgment, the court declared appellee, Cezar Trevino, to be the father of the child, required him to pay child support, and awarded the father and his parents "reasonable visitation at reasonable times upon reasonable notice." At that time, appellant agreed to give appellee visitation privileges and also agreed to permit his parents to have access to the child.
In 1990, however, appellant sought to modify the 1986 final judgment. She alleged in her petition that since the entry of final judgment, the father had trafficked in drugs and had pled guilty to a charge of trafficking in cocaine in an amount over 28 grams. This resulted in his incarceration in federal prison. Appellant maintained a relationship with appellee while he was in prison; appellee was given furloughs from time to time. According to appellant, however, during these furloughs, appellee showed little interest in the child; he made it known that he wanted to spend time alone with appellant and required her to procure a babysitter for the child. The petition also alleged that the father both physically and mentally abused appellant in the child's presence. It further stated that the mother became aware, since entry of the 1986 judgment, that the paternal grandfather physically and emotionally abused his wife (the child's grandmother), and that he drank alcohol excessively. The petition also asserted that it was in the best interest of the child if the visitation with the grandparents were supervised. The father filed a counterpetition praying for modification of the final judgment to include more specific and defined structured visitation for the father and his parents without supervision or contact with appellant. It alleged that appellant had unilaterally withheld contact with the father and grandparents contrary to the final judgment of paternity and that appellant was hostile toward the father and his parents. Appellee did not include a prayer for shared parental responsibility.
Shared parental responsibility is awardable to a natural father in cases where the child is born out of wedlock. See Kent v. Burdick, 591 So.2d 994 (Fla. 1st DCA 1991). However, the trial court's award of shared parental responsibility at bar constituted reversible error, because appellee did not pray for custody in his counterpetition. See Rhodes v. Wall, 514 So.2d 437 (Fla. 4th DCA 1987) (). When an award of relief is not sought by the pleadings, it is error to grant such relief. Freeman v. Freeman, 447 So.2d 963 (Fla. 1st DCA 1984). In Dodge v. Dodge, 578 So.2d 522 (Fla. 4th DCA 1991), we held that "[o]rdinarily, a trial court that is properly considering the custody of a child is also empowered to consider visitation as a necessary component of any custody arrangement." Id. In other words, the broad necessarily may include the less broad. However, in the instant case we have the reverse situation, and we hold that to permit such relief would offend a party's right to notice and opportunity to prepare a proper defense. Accordingly, we reverse the trial court's award of shared parental responsibility to appellee.
Regarding the trial court's findings of fact in paragraphs 1, 2 and 5 of the order, appellant argues that the trial court's findings of fact are not supported by the record. We agree. Although the trial court found that appellant and appellee lived together at his parents' home, the record shows that appellant and appellee did not have a continuing relationship, that appellant lived alone from the child's birth until the summer of 1989. At that time, when appellee went to prison and could not contribute to the child's support, appellant moved into appellee's parents' home at his suggestion. The trial court also found that appellant's relationship with appellee suffered some "ups and downs." As we previously stated, however, the evidence adduced at the hearing, which included appellee's own admission, showed appellee mentally and physically abused appellant. Thus, there is competent evidence of abuse in the present record, yet it is unreflected in the trial court's findings. We agree with appellant that this factor was not given due consideration as required by section 61.13(2), Florida Statutes, which provides:
The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. The court shall consider evidence of spouse abuse as evidence of detriment to the child. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. If the court finds that spouse abuse has occurred between the parties, it may award sole parental responsibility to the abused spouse and make such arrangements for visitation as will best protect the child and abused spouse from further harm.
(Emphasis supplied.)
We also agree with appellant that the trial court's findings in paragraph two are not consistent with the record. In that paragraph, the court reiterated appellant's claim that there was a significant difference between appellant's and the grandparents' parenting methods. The grandfather did not dispute that his parenting methods did not follow appellant's and he corroborated his refusal to observe appellant's requests to require a set bedtime for the child, that the child have vegetables at dinner, and his refusal to utilize a child restraint seat when he drove with the child. The order also states that the grandfather "suffered from periods of alcohol abuse." The record shows that the grandfather often got drunk and became violent. 1 The grandfather admitted in court that at the time of the hearing he still drank and that he has a "short fuse" and becomes loud and violent when he drinks. Appellee ultimately admitted this to the court. Appellee's sister conceded that her father still abused alcohol at the time of the hearing.
The trial court's findings in paragraph five of the order involve the child's allegations that the grandfather engaged in sexually inappropriate behavior with her. 2 The order states that these allegations were not established by the evidence and that the mother, although she had known about these conditions which affected her child, did not timely seek the advice of a psychologist or other appropriate professional. The record shows, however, that at the first instance that the mother became aware of the grandfather's behavior, she immediately consulted a clinical psychologist, Dr. Deborah Dreschner, and the psychologist advised appellant to move out of the house. 3 Prior to leaving the Trevino home, appellant apprised the incarcerated appellee of his father's behavior, but he advised her that because it involved his father, he would do nothing. Appellee corroborated this testimony.
Dr. Deborah Dreschner, the clinical psychologist who interviewed the child on three separate occasions, testified that she administered the Kinetic Family Drawing Test, which required the child to draw her family. When Dr. Dreschner pointed out to the child that the grandmother, grandfather, father and mother she drew looked happy, the child spontaneously stated, "Daddy hit Mommy and Grandpa hit Grandma, he pulled her clothes." The child also spontaneously spoke about other incidents with the grandfather and her parents. 4 It was Dr. Dreschner's expert opinion that if the situation with the grandfather was not handled properly, it could progress to more serious sexually inappropriate conduct on his part. It was also Dr. Dreschner's opinion that the child had not been coached to perform as she did in the psychological testing or in her interview sessions with Dr. Dreschner. She also testified to her observation that appellant did not speak in a derogatory fashion to the child regarding appellee or the Trevino family. On the contrary, appellant attempted to speak well of appellee to the child in order to preserve the father-child relationship.
The child's preschool teacher testified that appellee had never participated in the child's school activities, that in the entire year the child was in her class, she had never met him. Appellant, on the other hand, participated in all of the school's parent-child activities and exhibited a close bond with the child.
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