Perez v. Fay
| Decision Date | 23 January 2015 |
| Docket Number | No. 2D13–4217.,2D13–4217. |
| Citation | 160 So.3d 459 |
| Parties | Paola PEREZ, f/k/a Paola Fay, Appellant, v. Derik FAY, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
Robert J. Coleman of Coleman & Coleman, Fort Myers, for Appellee.
Paola Perez, the Mother, appeals the Amended Supplemental Final Judgment entered on the amended supplemental petition for modification that was filed by Derik Fay, the Father. We affirm the trial court's decision to give the Father primary residential custody of the parties' daughter as that decision is supported by competent, substantial evidence. However, due to legal errors in the remainder of the trial court's rulings, we reverse the remaining provisions of the amended supplemental final judgment and remand for further proceedings.
The parties married in July 2003, and their daughter was born in 2006. Shortly after their daughter's birth, the parties separated. During the ensuing dissolution proceedings, the parties entered into a Marital Settlement Agreement that allowed for shared parental responsibility of their daughter. The parties agreed on a time-sharing schedule that had the daughter living with the Mother four days each week and with the Father the other three days, with the Mother having primary residential custody. The trial court incorporated these agreements into the final judgment of dissolution, and this arrangement apparently worked well for several years.
Then, in June 2010, the Mother began suffering from psychological problems that ultimately resulted in her involuntary commitment. When the Father learned that the Mother had been involuntarily committed, he filed an emergency petition seeking primary residential custody of their daughter and seeking to revoke the Mother's time-sharing. The trial court granted this motion ex parte, and the Father took over primary care of his daughter.
Approximately a week later, the Mother was released from involuntary commitment, and she filed a motion to vacate the ex parte order concerning custody and time-sharing with her daughter. The trial court held a hearing on this motion, which the Mother attended and at which she was represented by counsel. After hearing from both parties, the trial court denied the Mother's request to return primary residential custody of her daughter to her; however, it granted her supervised time-sharing twice weekly for four hours at a time with a supervisor to be agreed upon by the parties. The court abated the Father's child support obligation but ordered him to bear the costs of the Mother's supervised time-sharing. The court further ordered that the Mother could have daily telephone contact with her daughter at a time to be coordinated with and supervised by the Father. And, because the Father did not speak the Mother's native language—Spanish—the court ordered the Mother to speak only English with her daughter during these daily telephone calls. Despite these drastic changes to the Mother's time-sharing and custody, the court did not set forth any guidelines in its order for how the Mother could restore her unsupervised time-sharing with or primary custody of her daughter.
The week after the court entered its order denying the Mother's motion to vacate the ex parte ruling, the Father filed a Supplemental Complaint for Modification, in which he alleged that the Mother's mental health issues constituted a substantial change in circumstances that warranted a permanent modification of the parties' final judgment of dissolution. He requested that the court order the parties to submit to a parenting evaluation, that the Mother be ordered to undergo psychiatric testing, and that the Mother be required to complete a parenting course. In her answer to the complaint, the Mother indicated that she did not object to undergoing either a parenting evaluation or psychiatric testing. However, she requested that the “emergency ex parte” order be vacated since the emergency upon which it was based had ended, and she requested that her time-sharing and parental responsibility be restored to that specified in the final judgment of dissolution.
Over the ensuing two and a half years, the Mother underwent parenting evaluations, psychiatric evaluations, and social investigations. During this time, the trial court granted the Father's “Emergency Motion to Suspend or Modify Time–Sharing” based on an incident during which the Mother allegedly “whisked” the child away from the time-sharing supervisor and had a “private” conversation with her in a public restroom. In granting this motion, the court reduced the Mother's time-sharing to ninety minutes twice a week.
Finally, in December 2012, the court held an evidentiary hearing on the Father's Amended Supplemental Complaint for Modification.1 At that hearing, the Father again produced evidence about the Mother's 2010 mental health incident. He also offered evidence that the Mother had been convicted of two criminal offenses in 2010 and that she suffered from a mild form of bipolar disorder
, for which she was not properly following her treatment protocol. He asked the court to make the provisions of the emergency order permanent and require the Mother to pay the cost of her supervised time-sharing.
In her case, the Mother admitted that she had had a series of problems during the summer of 2010. However, she produced uncontradicted evidence that there had been no further incidents. Her treating psychologists testified that the Mother was following her recommended treatment protocol. Both time-sharing supervisors testified that the Mother was very engaged with her daughter, that she brought appropriate games and activities to the time-sharing visits, and that the Mother and daughter had a strong bond. The parenting evaluator testified that the Mother should begin transitioning to increased supervised time-sharing, and the evaluator outlined a plan for this to occur over a six-month period.
Based on all of the evidence, the trial court found that there was a substantial and material change in circumstances that warranted making the Father the permanent primary residential parent for the parties' daughter. However, for no reason that can be gleaned from the record and with no factual findings in the order to support the change, the trial court reduced the Mother's supervised time-sharing from two to three hours per week to four hours per month and allowed the scheduling of the time-sharing to be at the sole discretion of the time-sharing supervisor. In addition, the court changed the responsibility for paying the time-sharing supervisor from the Father to the Mother. It also made the language restriction during the Mother's interactions with her daughter permanent. And, despite all of these changes to the Mother's time-sharing, the court provided no guidance whatsoever as to how the Mother could restore her former level of time-sharing or permanent residential custody. The Mother now appeals all of these rulings.
As an initial matter, we affirm the trial court's decision to leave primary residential custody of the parties' daughter with the Father. At the time of the original ex parte hearing, the Father presented substantial, competent evidence that there had been a material and substantial change in circumstances since the entry of the final judgment of dissolution and that an immediate change in custody would be in the best interests of the parties' daughter. The amended supplemental final judgment relied on those findings, as well as findings relating to the Mother's continued mental health treatment, to continue primary residential custody of the daughter with the Father. Because that ruling is based on competent, substantial evidence, we affirm.
However, we must reverse the remainder of the amended supplemental final judgment and remand for further proceedings because the remaining portions of the judgment are legally deficient. We address the three broad areas covered by the amended supplemental final judgment in turn.
The Mother first contends that the trial court erred by altering the parties' shared parental responsibility so that the Father now has the authority to make final decisions on “all issues” concerning the parties' daughter. This portion of the amended supplemental final judgment must be reversed because it grants relief not requested by the Father.
Abbott v. Abbott, 98 So.3d 616, 617–18 (Fla. 2d DCA 2012) (citations omitted) (internal quotation marks omitted). Additionally, a court should not grant such relief absent proper notice to the parties. Sinton v. Sinton, 749 So.2d 532, 533 (Fla. 2d DCA 1999).
Worthington v. Worthington, 123 So.3d 1189, 1190–91 (Fla. 2d DCA 2013). Moreover, a court errs in granting relief on issues not tried with the consent of the parties. See Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003).
In his Amended Supplemental Complaint for Modification, the Father did not request either sole parental responsibility or sole decision-making authority. He also did not request such relief at the evidentiary hearing. Nevertheless, the trial court sua sponte awarded the Father sole parental responsibility and sole decision-making authority in the supplemental final judgment of modification. When the Mother received this judgment, she immediately filed a motion for rehearing raising her objection to this unrequested relief. The trial court granted the Mother's motion for rehearing to the extent that it “reinstated” shared parental decision-making, but it nevertheless ordered that the Father would be “the ultimate decision maker for all issues.”
It is clear from the record that ...
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Schaefer v. Franzoni
...Dist. Ct. App. 2019) (holding that courts are not authorized to grant relief not requested in the pleadings); Perez v. Fay, 160 So. 3d 459, 464 (Fla. Dist. Ct. App. 2015) (holding that court abused its discretion in awarding sole parental responsibility or sole decision-making authority to ......