Seigler v. Bell

• Citation: 148 So.3d 473
• Decision Date: 19 September 2014
• Docket Number: No. 5D14–642.,5D14–642.
• Parties: Theresa A. SEIGLER, F/K/A, Theresa A. Bell, Petitioner, v. Robin BELL, Respondent.
• Court: Court of Appeal of Florida (US)

148 So.3d 473

Theresa A. SEIGLER, F/K/A, Theresa A. Bell, Petitioner

v.Robin BELL, Respondent.

No. 5D14–642.

District Court of Appeal of Florida, Fifth District.

Sept. 19, 2014.

Rehearing and Rehearing En Banc Denied Oct. 15, 2014.

Christie L. Mitchell, Orlando, for Petitioner.

Vicki Levy Eskin, Longwood, for Respondent.

Opinion

LAMBERT, J.

Theresa A. Seigler (“Mother”) petitions this court to issue a writ of certiorari and a writ of mandamus regarding the order granting Robin Bell's (“Grandmother”) motion for rehearing or reconsideration in a proceeding to revoke a temporary custody order entered pursuant to chapter 751, Florida Statutes. For the reasons set forth below, we dismiss the petition for writ of certiorari for lack of jurisdiction and deny the petition for writ of mandamus.

On November 24, 1999, Mother executed a “Consent to Temporary Custody,” agreeing to provide temporary custody of her son (“Child”) to Grandmother. On November 27, 2001,¹ the trial court entered an order granting temporary custody of Child to Grandmother. Almost nine years later, on March 23, 2010, Mother filed a motion for visitation, seeking “a significant amount of visitation” with Child, and, on May 7, 2010, Grandmother filed a motion for supervised visitation. The matter was referred to a general magistrate, and based on the parties' stipulation that supervised visitation would serve Child's best interests, the trial court granted Grandmother's motion. The supervised visitation with Mother did not go well, and, after four visits, Grandmother stopped bringing Child and advised the supervising entity that Child did not want to visit. The relationship between Mother and Grandmother deteriorated, with Mother asserting that Grandmother was purposely hindering the development of Mother's relationship with Child, and with Grandmother asserting that (1) Child did not want to develop a relationship with Mother and (2) Child considered Grandmother to be his “mom.”

On November 10, 2010, Mother filed her “Motion to Revoke Temporary Custody by Extended Family,” alleging that Grandmother acquired temporary custody of Child based on Mother's consent, due to Mother's then-inability to care for Child. The motion asked the trial court to terminate the temporary custody because Mother had become, and continues to be, able to provide Child with a stable and loving home and provide for his needs. The trial court appointed a guardian ad litem (“GAL”) to represent the best interests of Child, and the matter was again referred to the same general magistrate.

The parties litigated for approximately 18 months before the general magistrate issued his report and recommendation on May 24, 2012. The magistrate noted that the relationship between Mother and Grandmother had deteriorated, but found that “it is uncontroverted that both [Grandmother] and [Mother] love the child beyond measure and wish to act in what they believe to be in the best interests of the child.” The magistrate further found that Mother was drug-free, married, and living with her husband and younger children, that Mother and her husband were gainfully employed, and that Mother had been receiving counseling in anticipation of receiving custody of Child.² However, the magistrate found that Child, an intelligent and articulate 13–year–old, did not seem interested in getting to know Mother, but noted that Grandmother had prevented Mother from having contact with Child for several years, making it unclear whether Child's “feelings or lack of feelings toward [Mother] originated with [Child] or some other person or persons.”

The magistrate concluded that, while a change in custody without a transition period would be harmful to Child, custody should eventually be restored to Mother, with liberal “time-sharing and visitation” between Grandmother and Child. The magistrate recommended that the trial court: (1) grant Mother's motion to revoke temporary custody; (2) order the parties to attend family counseling and Child to attend individual counseling; (3) establish a 64–week incremental reunification period before Mother takes full-time physical custody of Child; and (4) provide liberal and frequent “contact, access, visitation, and time-sharing” between Grandmother and Child, even after full custody is restored to Mother.

Both Mother and Grandmother filed exceptions to the magistrate's report. On January 11, 2013, the trial court entered its order denying Grandmother's exceptions, granting Mother's exceptions, and modifying the magistrate's report as follows: (1) removing visitation between Grandmother and Child after full-time custody is restored to Mother; and (2) holding erroneous as a matter of law the conclusion that an immediate change in custody from Grandmother to Mother would be detrimental to Child because “detriment to child” is a “legal conclusion,” and the magistrate's findings of fact were inconsistent with the definition of “detriment to child.”

On January 23, 2013, Grandmother filed a “Motion for Rehearing or Reconsideration” of the January 11, 2013 order, asserting that Child and the GAL wished to provide testimony to the trial court, and asking the trial court to receive such testimony and reconsider its order on the parties' exceptions to the magistrate's report. Grandmother also filed a motion for an in-camera interview of Child and a motion to stay.

On February 14, 2013, prior to ruling on Grandmother's motions, the trial court entered an amended order signed nunc pro tunc as of January 11, 2013, granting Mother's exceptions to the magistrate's report and denying Grandmother's exceptions. The only difference between the January 11, 2013 order and the amended order is that the trial court further modified the magistrate's report by also removing the provision for the 64–week incremental reunification period. The report, as modified, provides that full-time, permanent custody of Child be immediately transferred to Mother without a transition period, and without any further right to visitation for Grandmother.

Despite the foregoing, on February 25, 2013, the trial court granted Grandmother's motions to stay and for in-camera interview of Child. However, on February 26, 2013, the trial court entered an order denying Grandmother's January 23, 2013 motion for rehearing or reconsideration. Nonetheless, the following day, the trial court proceeded with the in-camera interview of Child. After hearing from the GAL and conducting its in-camera interview of Child, the trial court sua sponte entered an order on April 5, 2013, vacating its February 26, 2013 order denying Grandmother's motion for rehearing, stating that it was “signed in error.”

A hearing on Grandmother's motion for rehearing or reconsideration was scheduled for November 15, 2013. Grandmother filed a motion for continuance and a hearing on the motion was held. On November 15, 2013, the trial court entered an order signed nunc pro tunc as of November 4, 2013, granting Grandmother's motion to continue, but requiring the parties to submit written arguments “in lieu of personal attendance and oral argument.” After reviewing the parties' timely-filed memoranda, the trial court entered an order dated January 24, 2014, granting Grandmother's motion for rehearing or reconsideration, stating that it failed to consider evidence as to the best interests of Child in allowing the custody change to Mother without a transition period.

CERTIORARI

In this portion of her petition, Mother asserts three reasons why she believes the trial court departed from the essential requirements of law when it granted Grandmother's motion for rehearing or reconsideration: (1) Grandmother's motion for rehearing was untimely; (2) the trial court granted the motion based on its stated failure to consider evidence that is irrelevant to the legal standard applicable in a motion to revoke temporary custody by an extended relative; and (3) the trial court lost jurisdiction over the case because the motion for rehearing was untimely. In response, Grandmother argues that: (1) her motion for rehearing was timely despite the fact that her motion was filed 12 days after the January 11, 2013 order because Florida Rule of Civil Procedure 1.530 was amended, effective January 1, 2014, to extend the time to file a motion for rehearing from 10 to 15 days, and that amendment should be applied retroactively to her filing in January 2013; and (2) even if this court finds that the amendment to rule 1.530 does not apply retroactively, the trial court correctly considered Grandmother's motion on public policy grounds.

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.” Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007) (citing Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) ). The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 351 (Fla.2012) (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) ); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648–49 (Fla. 2d DCA 1995). An appellate court must find irreparable harm before it may consider whether there has been a departure from the essential requirements of the law. See Citizens Prop. Ins. Corp., 104 So.3d at 351 (citing Williams v. Oken, 62 So.3d 1129, 1132–33 (Fla.2011) ).

To explain why we are dismissing the petition for writ of certiorari, we find it necessary to clarify first the nature and effect of the trial court's amended January 11, 2013 order on the parties' exceptions to the magistrate's report and, second, how our determination of the effect of the order affects the consideration of...