Musgrave v. Musgrave

• Decision Date: 27 November 2019
• Docket Number: Case No. 2D18-2792
• Parties: Benjamin A. MUSGRAVE, Appellant, v. Lynn M. MUSGRAVE, Appellee.
• Court: Florida District Court of Appeals

290 So.3d 536

Benjamin A. MUSGRAVE, Appellant,

v.Lynn M. MUSGRAVE, Appellee.

Case No. 2D18-2792

District Court of Appeal of Florida, Second District.

Opinion filed November 27, 2019

Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellant.

Scott Martin Roth of Smooth Transitions, Inc., Naples, for Appellee.

SMITH, Judge

Benjamin A. Musgrave (Husband) appeals a final judgment dissolving his marriage to Lynn M. Musgrave (Wife) raising numerous errors arising from the trial court's "virtually verbatim" adoption of the Wife's proposed final judgment after a two-day, nonjury trial. Because we find merit on the following issues: award of sole parental responsibility to the Wife, entry of de facto domestic violence injunction against the Husband, and requirement that the Husband name the Wife as a beneficiary under his existing life insurance policy, we reverse as to these issues and remand with instructions. We affirm the final judgment of dissolution in all other respects without comment.

I

The main dispute in this marriage dissolution case centered around the Husband's attempt to gain sole parental responsibility of the parties' two minor children. The Husband claimed in his petition that shared parental responsibility was detrimental to the minor children because of the Wife's "lack of moral fitness."¹ In response, the Wife denied the Husband's allegations and, in turn, threatened to seek sole parental responsibility if the Husband continued to exhibit "defiant, disruptive, mean-spirited, unreliable, unreasonable, disrespectful and/or dismissive" behavior toward her.² However, the Wife never formally requested sole parental responsibility. Both parties were represented by counsel throughout the proceedings below.

The Husband and Wife were married almost ten years³ and at the time of the petition had two minor children. They were living in separate residences for approximately one year before the Husband filed his petition for dissolution of marriage. During the parties' separation, and until the final hearing, they maintained an equal timesharing schedule, rotating the children on a weekly basis pursuant to a stipulated temporary order. Neither party sought to alter the equal timesharing schedule in these proceedings.

The only issues tried during the trial were the issues of parental responsibility, the creation of a holiday timesharing schedule, and equitable distribution, with the issue of parental responsibility taking up the majority of the trial. The proceedings were clearly acrimonious. The Husband presented six witnesses to testify regarding the Wife's "moral fitness." The Husband's evidence amounted to an inappropriate, and mostly unsubstantiated, attempt to tarnish the Wife's character and had little, if anything, to do with demonstrating shared parental responsibility was detrimental to the children. The Wife presented no outside witnesses and relied on her own testimony. At the conclusion of the trial, the Husband conceded the evidence failed to establish the requisite detrimental finding necessary to award him sole parental responsibility,⁴ but nevertheless asked the trial court to award him sole responsibility with regard to the minor children's education and extracurricular activities.

Upon conclusion of the trial, the trial court reserved ruling and made no oral pronouncement of any findings of fact or legal conclusions. The trial court directed the parties' respective counsel to submit proposed final judgments, to which neither party objected. The Husband submitted his proposed final judgment on February 14, 2018, and the Wife submitted her eighteen-page proposed final judgment on February 16, 2018. On May 1, 2018, the trial court signed the Wife's proposed final judgment, adding one handwritten sentence noting concern regarding the Husband's practice of weighing the children after timesharing with the Wife.

Relevant to our opinion here, the final judgment granted the Wife sole parental responsibility of both children, granted the Wife what amounted to a de facto domestic violence injunction against the Husband, and ordered the Husband to name the Wife as a beneficiary of his existing life insurance policy.

II

We must first address the Husband's attack of the final judgment, as a whole, based upon the trial court's "virtually verbatim" adoption of the Wife's proposed final judgment, arguing the findings do not reflect the court's thoughtful and independent analysis.

"[T]he law in Florida does not prohibit the verbatim adoption of a judgment that has been proposed by a party." Bishop v. Bishop, 47 So. 3d 326, 328 (Fla. 2d DCA 2010) (citing M.D. v. Dep't of Children & Family Servs., 924 So. 2d 827, 830 (Fla. 2d DCA 2005) ). However, an adopted judgment "cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge." Perlow v. Berg-Perlow, 875 So. 2d 383, 390 (Fla. 2004). A trial judge is permitted to request a proposed final judgment from the parties, so long as the opposing party is given an opportunity to comment or object prior to entry of an order by the court. Id. at 388 (noting a verbatim acceptance of a proposed final judgment, without first affording an opportunity for response by the opposing party is contrary to the requirements of Canon 3B(7) of the Florida Code of Judicial Conduct⁵ ). But see Waldman v. Waldman, 520 So. 2d 87, 88 n.4 (Fla. 3d DCA 1988) ("We condemn this practice [of requesting both parties to submit proposed orders and adopting one of the proposed orders verbatim]. We admonish the bench and the bar that, particularly in domestic relations cases, findings of fact and conclusions based thereon are of critical importance. ... The better practice, indeed the preferred practice, is for the trial court to indicate on the record its findings and conclusions."), receded from on other grounds, Acker v. Acker, 821 So. 2d 1088 (Fla. 3d DCA 2002). This court has announced "we will reverse any judgment entered under circumstances that create an appearance that the judgment does not reflect the judge's independent decision-making. However, the fact that the judgment was adopted from a proposal submitted by a party does not, standing alone, raise that possibility." M.D., 924 So. 2d at 831.

In Perlow, the trial court made no changes to a twenty-five page final judgment submitted by the wife's counsel and signed the judgment two hours after receiving it. Perlow, 875 So. 2d at 389. The husband, who did not have counsel, was not furnished a copy of the proposed judgment and was not given an opportunity to object. Id. Whereas here: both parties were represented by counsel; the Husband was given a copy of the Wife's proposed final judgment; the trial court signed the Wife's proposed final judgment two-and-a-half months after receiving the competing orders, during which time the Husband raised no objection to the Wife's proposed final judgment; and the trial court made a hand-written notation on the Wife's proposed final judgment before signing it—implicating the trial court's independent evaluation of the submitted findings.

Moreover, a review of the record indicates the trial court actively participated in the final hearing, which reinforces the conclusion that the trial court exercised her independent decision-making. See Kendall Healthcare Grp., Ltd. v. Madrigal, 271 So. 3d 1120, 1122 (Fla. 3d DCA 2019) (determining the trial court actively participated in nonjury trial by asking pertinent questions and giving appearance it understood the expert testimony); Cabrera v. Cabrera, 987 So. 2d 753, 754-55 (Fla. 3d DCA 2008) (finding record support that the trial court actively participated in the proceeding); Bryan v. Bryan, 930 So. 2d 693, 696 (Fla. 3d DCA 2006) (concluding trial court exercised independent decision-making where court actively participated in final hearing by asking questions and taking notes). We note there is no question the Wife's counsel took great liberties when preparing the proposed final judgment;⁶ however, none of the arguably inappropriate or inflammatory findings included in the final judgment create the appearance that the judge failed to exercise her independent decision-making in this case, as required for reversal.

Accordingly, under the facts of this case, we hold there was no abuse of discretion by the trial court in adopting the Wife's proposed final judgment. Additionally, upon rehearing the Husband failed to raise an objection to the proposed final judgment based upon the "verbatim" theory, and he cannot now complain error for the first time in this appeal. See Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (concluding party did not properly preserve objection for appellate review).

III

The Husband also challenges the final judgment's award of sole parental responsibility to the Wife on the grounds the trial court's findings were not supported by competent, substantial evidence. We note that these proceedings commenced with the Husband's own request for sole parental responsibility, based upon his contention that shared parental responsibility would be detrimental to the minor children, and concluded with the Husband's counsel conceding the Husband failed to meet his burden of proof on the sole parental responsibility issue, only after he paraded witness after witness into the courtroom to testify regarding the Wife's moral fitness.

Nonetheless, we review the trial court's award of sole parental responsibility under an abuse of discretion standard to determine "whether there is logic and justification for the result." Fazzaro v. Fazzaro, 110 So. 3d 49, 51 (Fla. 2d DCA 2013) (citing A.L.G. v. J.F.D., 85 So. 3d 527, 529 (Fla. 2d DCA 2012) ); see also Cranney v. Cranney, 206 So. 3d 162 (Fla. 2d DCA 2016) ; accord Smith v. Smith, 971 So. 2d 191, 195 (Fla. 1st DCA 2007) (reviewing specifically whether competent, substantial evidence supports the trial court's decision). Because the Wife never requested sole parental...