Paulk v. Paulk
| Decision Date | 15 January 2010 |
| Docket Number | No. 2D08-5043.,2D08-5043. |
| Citation | 25 So.3d 672 |
| Court | Florida District Court of Appeals |
| Parties | Vandy E. PAULK, Appellant, v. Ronald L. PAULK, Appellee. |
Joseph C. Hood, Tampa, for Appellant.
Ronald L. Paulk, pro se.
Vandy E. Paulk, the Mother, challenges the trial court's final judgment of modification of custody vacating the rotating custody arrangement of the final judgment of dissolution and awarding primary residence to Ronald L. Paulk, the Father. Because the Father's petition for primary residence was not before the court at the time of the hearing, the trial court erred in granting such relief. We reverse.
The marriage of the Mother and the Father was dissolved by final judgment on June 25, 2003. The final judgment of dissolution incorporated the terms of the marital settlement agreement, which included a rotating custody plan. The agreement also included a provision that "both parents agree not to change the children's schools or move the children from the area without the other parent's permission."
In June 2004, the Father agreed to sign a consent allowing the Mother to move with the children to Highlands County. Because of the distance between the two residences, this necessarily ended the rotating custody plan and created a de facto primary residence with the Mother—relegating the Father's role to that of the visiting parent. On July 15, 2005, the Father filed a motion to enforce the final judgment of dissolution. By this motion, he asked that the court order the Mother to return to Pasco County with the children so that the rotating custody plan could be followed. In response to this motion, the Mother filed a petition to modify the final judgment, asking that the trial court name her the primary residential parent and establish a visitation schedule for the Father. She also requested that she and the children be allowed to continue to reside in Highlands County, alleging that a substantial change had occurred when, with the Father's written consent, she moved the children to Highlands County, where they had lived for more than a year.
On April 27, 2006, the Father filed a petition to modify custody, asking that he be named the primary residential parent. Because the Father failed to obtain proper service of his pleading on the Mother, he subsequently filed an amended petition to modify custody. However, he again failed to obtain proper service.
The case proceeded to final hearing in August 2007. At the outset of that hearing, a discussion was held as to the status of the Father's petition to modify custody. In reviewing the pleadings, the trial court instructed the Father, who appeared pro se, as follows:
[T]here is no summons now that has been successfully served. Therefore, while you are free to properly have a summons issued to her individually, to be served on her individually or a resident of her household that is considered lawfully of age, I can't proceed today on your amended supplemental petition to modify custody and time sharing.
That does, however, leave us with whether she's going to succeed—as I recall, she's trying to move or moved— as to whether or not she's going to succeed.
The trial court further advised the Father, "[I]f she doesn't win, then ya'll are left where you were, unless you succeed at a later time with your amended supplemental petition." The trial court subsequently clarified the purpose of the hearing, stating, "Now I'm going to address what's going to happen with the kids and your respective contacts, which is both the Court considering [the Mother's] request for there to be a change and [the Father's] request to enforce what was in place." Based on these comments, we conclude that the Father's petition for modification was not before the trial court at the hearing, but rather that the Mother's petition and the Father's motion to enforce the rotating custody plan were the only issues to be tried.1
The trial court proceeded to take testimony on the Mother's petition to modify the final judgment. In doing so, the Father was able to present to the court testimony regarding certain deficits in the care the Mother was providing to the children. At the conclusion of the hearing, the court made certain factual findings regarding the Mother's poor parenting of the children. Then, despite the court's earlier comments, it named the Father primary residential parent and set out the visitation schedule for the Mother, citing Wade v. Hirschman, 903 So.2d 928 (Fla.2005), as instructive. In its written final judgment, the trial court did not specifically deny the Mother's petition to modify or the Father's motion to enforce the final judgment. Rather, it appears that the trial court concluded that by the Mother raising the issue of modifying the final judgment of dissolution regarding the rotating custody plan, she opened the door for the court to award the Father this designation even without his petition being heard at the hearing.
This was error. The rotating custody plan of the final judgment is...
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