Posso v. Sierra
| Decision Date | 12 February 2021 |
| Docket Number | Case No. 5D20-578 |
| Citation | 311 So.3d 1021 |
| Parties | Yuriem POSSO, Appellant, v. George SIERRA, Appellee. |
| Court | Florida District Court of Appeals |
Erin E. Morse and Gabriela A. Bonilla, of The Law Office of Erin Morse, Orlando, for Appellant.
Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, for Appellee.
Yuriem Posso and George Sierra are the natural parents of J.S. A final judgment of paternity was entered establishing shared parental responsibility, timesharing, financial support, and related issues. Posso appeals that judgment, contending that the trial court lacked jurisdiction to enter the order because the proceeding had been referred to a general magistrate. Posso further asserts that the trial court erred in computing child support; superseding an order from the Department of Revenue; apportioning health care costs; effectively setting aside a parenting plan entered into during mediation; in the establishment of a timesharing plan; and in ordering the parties to return to mediation when J.S. enters middle school and high school.
J.S. was born out of wedlock in 2013. Two years later, Sierra petitioned to determine paternity and sought approximately equal timesharing. He also requested the trial court to prohibit Posso from relocating out of state with the child. Posso counter-petitioned and sought to relocate with J.S. to North Carolina. The case was referred to a general magistrate.
In 2017, the parties entered into a mediated settlement agreement and parenting plan. The agreement called for shared parental responsibility and outlined two different timesharing schedules, depending on whether Posso would be allowed to relocate out of state.
Several months later, Posso filed a motion for entry of final judgment and for the agreement to be incorporated therein. In response, Sierra objected to entry of a final judgment and requested setting the case for trial, noting Posso's noncompliance with the mediated settlement agreement and the fact that the agreement had yet to be accepted by the trial court. Posso objected to proceeding to trial on the basis that there had not been a substantial change in circumstances and that a hearing was pending before the trial court for the purpose of entering a final judgment in accordance with the mediated settlement agreement.
The court minutes from the hearing reflect that the trial court, Judge Heather P. Rodriguez, found that it did not have jurisdiction to hear Posso's motion for entry of final judgment because the entire case had been transferred to a general magistrate.
Nothing occurred for the next eight months. Eventually, Judge Diana M. Tennis, sua sponte, set a case management conference, which resulted in the case being set for trial before Judge Alan S. Apte. Neither side objected and both filed pre-trial memorandums.
Prior to trial, Posso amended her relocation petition. The parties proceeded to another case management conference, where the court minutes reflect that both parties announced they were ready for trial and that Posso withdrew her motion for relocation. Trial occurred in November 2019, and final judgment was entered two months later. As will become critical to our analysis, we have no transcripts from any of these proceedings, including the trial.
On rehearing, Posso argued for the first time that the trial court did not have jurisdiction to conduct the trial because the case had been referred to a general magistrate. She raised additional objections to the findings, or lack thereof, in the final judgment and took issue with the timesharing schedule because it conflicted with that of J.S.’s half-sibling. The motion for rehearing was denied, and this appeal followed.
Posso argues that because the case had been referred to a general magistrate, it was error for the trial court to conduct a trial and enter a final judgment. She cites to Judge Rodriguez's order in support of her position.
We recognize that once a matter has been heard by a magistrate and evidence taken, a judge is not allowed to substitute his or her judgment for that of the magistrate. See Davis v. Maloch, 287 So. 3d 689, 692–93 (Fla. 5th DCA 2019) ; see also Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d DCA 2006). However, that does not divest the circuit court of jurisdiction, nor is this a case where the trial court substituted its judgment for that of a magistrate who had heard the evidence. Cf. Davis, 287 So. 3d at 692–94. There had been no evidentiary proceedings and findings entered by a magistrate in this case.
While it is true that Judge Rodriguez refused to hear the case because it had been referred to a magistrate, Judge Rodriguez's denial was in response to Posso's motion for final judgment and entry of the mediated timesharing agreement. After Judge Rodriquez declined to hear the case, Posso continued to litigate in the trial court, filing numerous motions and attending multiple case management conferences and trial, all without objection. After fully participating in the trial, Posso cannot, after what she perceived as an unfavorable result, then raise a procedural objection in a motion for rehearing. See Portales v. Another Beautiful Corp., 121 So. 3d 562, 563 (Fla. 3d DCA 2012) ; see also Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) (). As noted, the referral to a magistrate does not divest the circuit court of jurisdiction.
Posso argues that a final judgment of paternity must have a child support guidelines worksheet attached, and because the trial court failed to do so, there are insufficient findings as to how the trial court made its pertinent determinations. She asserts that the trial court's imputation of income lacks sufficient factual findings, as only one financial affidavit had been filed by each party, but the amount imputed to each party did not match the affidavits.
Sierra concedes, and we agree, that the trial court erred in failing to set out findings in the final judgment to support its ruling. The trial court's order on appeal sets forth imputed gross income of both parties and requires Posso to pay Sierra $33.48 per month in child support, finding that she had the ability to make that monthly payment. However, the judgment does not explain the basis for the imputed income or why it did not utilize the parties’ net income. Nor does the record include the child support guidelines worksheet or the parties’ financial affidavits. As a result, there is simply no explanation in the record as to how the trial court arrived at the parties’ respective incomes, or how it determined child support.1 See Clements v. Clements, 254 So. 3d 635, 636 (Fla. 5th DCA 2018) (); Aguirre v. Aguirre, 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008) ().
Due to the lack of findings in the final judgment, this Court cannot conduct a meaningful review of the child support award. See Mathieu v. Mathieu, 877 So. 2d 740, 741 n.1 (Fla. 5th DCA 2004). Given the concession of error, we remand for the required additional findings.
Posso argues that the trial court erred in superseding an administrative child support order without proper notice to her, as such relief was not requested by the pleadings, nor was the issue noticed for trial. Additionally, she claims that the final order contains error in that it did not address the retroactive amount of child support that was owed by Sierra.
Initially, we note that Sierra had filed a motion to supersede the administrative child support order entered by the Florida Department of Revenue and referenced such motion in his pre-trial memorandum. To the extent that Posso now asserts that such relief was required to be within Sierra's petition, we are unable to determine whether she objected below because there is no transcript. See Lightsey v. Davis, 267 So. 3d 12, 14 n.1 (Fla. 4th DCA 2019). Posso also failed to raise the issue in her motion for rehearing.
Sierra concedes that the trial court erred in failing to address the issue of retroactive child support. We agree and remand for determination of retroactive child support amounts due and owing. See § 409.2563(10)(c), Fla. Stat. (2015).
Posso argues that the trial court erred in apportioning J.S.’s uncovered medical expenses 40% to her and 60% to Sierra, claiming that the trial court should have split the incurred expenses by the parties’ pro-rata share of general financial responsibility for J.S. Sierra concedes error and explains that the attachment of a child support guidelines worksheet is the proper remedy. Had counsel prepared a child support worksheet as requested by the trial court, this issue could have been alleviated.
It appears the trial court's apportionment of uncovered medical expenses roughly matched the ratio of the parties’ gross income imputed in the final order. Nevertheless, as both parties recognize, there are insufficient findings related to the parties’ income, as the trial court did not provide its calculation as to how it reached those numbers and why it used the parties’ gross income rather than net. See Mathieu, 877 So. 2d at 741 n.1 ; see also Clements, 254 So. 3d at 636 ; Aguirre, 985 So. 2d at 1207. We remand for the court to make the required findings.
Additionally, Posso argues that it was reversible error for the trial court to obligate...
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... ... presented on those issues, or whether Father objected in ... order ... to preserve his arguments for appeal. See Posso v ... Sierra, 311 So.3d 1021, 1025 (Fla. 5th DCA 2021) ... (explaining that appellate court could not determine whether ... ...
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...was presented on those issues, or whether Father objected in order to preserve his arguments for appeal. See Posso v. Sierra, 311 So. 3d 1021, 1025 (Fla. 5th DCA 2021) (explaining that appellate court could not determine whether appellant objected below to relief not requested where transcr......