Shaw v. Shaw, SC00-1577.

• Decision Date: 18 April 2002
• Docket Number: No. SC00-1577.,SC00-1577.
• Parties: Samuel SHAW, Petitioner, v. Elizabeth SHAW, Respondent.
• Court: Florida Supreme Court

816 So.2d 540

Samuel SHAW, Petitioner, v. Elizabeth SHAW, Respondent.

No. SC00-1577.

Supreme Court of Florida.

April 18, 2002.

Diane H. Tutt and Sharon C. Degnan of Diane H. Tutt, P.A., Plantation, FL, for Petitioner.

Abbe Cohn of Abbe Cohn, P.A., Fort Lauderdale, FL; and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, P.A., Fort Lauderdale, FL, for Respondent.

PER CURIAM.

We granted review of Shaw v. Shaw, 760 So.2d 981 (Fla. 4th DCA 2000), based on apparent conflict with Williams v. Williams, 690 So.2d 601 (Fla. 1st DCA 1996). Upon examination of the record, we have determined that jurisdiction was granted improvidently. Accordingly, because we find no alternative basis for jurisdiction, this cause is dismissed.

It is so ordered.

WELLS, C.J., and HARDING, ANSTEAD, and QUINCE, JJ., concur.

LEWIS, J., dissents with an opinion, in which SHAW, J., concurs.

PARIENTE, J., recused.

LEWIS, J., dissenting.

I find the majority's discharge of jurisdiction in this case troubling. In its decision below, the Fourth District stated:

One of the issues the father raises on appeal is that the court erred in ordering him to attend a parenting course because the mother had not requested that relief. He relies on Williams v. Williams, 690 So.2d 601, 603 (Fla. 1st DCA 1996), in which the court stated:

As to point three, we must reverse the provision of the order requiring the former husband to obtain alcohol abuse counseling and to attend parenting classes. It is improper to enter an order which exceeds the scope of relief sought by the pleadings, absent notice which affords the opposing party an opportunity to be heard with respect to the proposed relief.

We do not agree with Williams to the extent that it requires that attendance at parenting classes must be plead [sic].

760 So.2d at 982 (emphasis supplied). In discharging jurisdiction here, the majority fails to provide guidance to Florida families and family law litigants who face the issue regarding which the Fourth District expressed conflict with Williams: in a final hearing regarding child custody and visitation, can a trial court, in the child's best interest, fashion appropriate relief related to custody or visitation which has not been specifically requested by either party in the pleadings? In so doing, the majority also avoids addressing equally significant, but perhaps more thorny, issues important to Florida families which are presented by this record and appropriate for our review: (1) whether a trial court, in awarding sole parental responsibility, can totally abdicate to the whims of a custodial parent its judicial responsibility and authority to determine the parameters of visitation, if any, which will be exercised by the noncustodial parent, and (2) whether attorney's fees in the nature of a punitive measure can properly be awarded under Rosen v. Rosen, 696 So.2d 697 (Fla.1997), against a parent who has only attempted to have the issue of child custody and visitation properly decided, and who was required to seek relief from erroneous ex parte proceedings not of his making. Because this Court has an obligation to provide clear guidance and to dispel confusion in areas where express and direct conflict has been created by decisions of the district courts—an obligation which, in my view, is particularly crucial in the family law area, which intimately affects so many Floridians in today's society—I must dissent. I am concerned that our failure to address the issues in this case fails to correct flaws in our family law jurisprudence that will continue to cause justice to be misdirected.

This case arose from an appeal from a final judgment of dissolution of marriage. Elizabeth Shaw ("the mother") filed a petition for dissolution in April of 1997, seeking relocation to Louisiana, primary residential custody of the Shaws' minor child (Jenna), shared parental responsibility with reasonable visitation, and child support. In her petition, the mother did not request that Samuel Shaw ("the father") be ordered to attend a parenting class. The trial court then entered an erroneous emergency, ex parte order granting the mother temporary primary residential custody and authorizing the removal of the child to a different state.

Because the mother had already moved with Jenna to Louisiana based upon the ex parte proceedings and order, the father responded by filing an Emergency Motion for Temporary Injunction to Prevent Removal of Child And/Or Return Child to Jurisdiction, along with pleadings seeking custody of his child. The father also filed an expedited appeal from the ex parte order granting the mother temporary primary residential custody of Jenna, and authorizing the relocation to a different state. The father was the prevailing party on that appeal, with the Fourth District holding that the trial court had erred in granting the mother's emergency motion without affording the father notice or an opportunity to be heard, and that the error in entering the original order was compounded by a delay of almost two months in setting an evidentiary hearing. See Shaw v. Shaw, 696 So.2d 391 (Fla. 4th DCA 1997)

.

As the case proceeded in the trial court, much of the controversy was centered upon access to the child, who had been removed to Louisiana while the father remained in Florida. The litigation culminated in a final evidentiary hearing addressing custody, child support, and visitation issues. At the conclusion of that hearing, the trial court designated the mother as the custodial parent and awarded her temporary sole parental responsibility, ordered the father to attend a thirty-six week parenting course, and indicated that, after the father completed the course, a status conference would be held in which the issue of shared parental responsibility would be revisited. In the interim, the trial court ordered that the father would be permitted to exercise visitation only at the mother's discretion. Finally, the trial judge ruled that, under Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the father would be required to pay all of the mother's attorneys' fees, even those related to his successful appeal of the ex parte proceeding, observing only that "[t]his litigation should have never gone this far, not at all." A timely appeal from this order followed.

On appeal, the Fourth District addressed three issues. First, it held that there was "ample evidence to support" the trial court's grant of sole parental authority to the mother "for now." 760 So.2d at 982. Second, it considered and rejected the father's challenge to the trial court's order giving the mother complete and absolute control over his visitation during this period, stating that, "[a]lthough that may generally be error, Letourneau v. Letourneau, 564 So.2d 270 (Fla. 4th DCA 1990), it was not improper under the specific facts in this case." 760 So.2d at 982.

Third, it addressed the father's contention that, because the possibility of requiring him to attend a parenting course was not specifically pled, he had no notice that the court might impose attendance at such a lengthy course as a condition to the court's resolution of the parental responsibility issue. The district court rejected this contention, holding that the trial court did not err in ordering the father to attend a thirty-six week parenting course. See id. In so doing, it expressed disagreement with Williams v. Williams, 690 So.2d 601 (Fla. 1st DCA 1996) "to the extent that it requires that attendance at parenting classes must be [pled]." Id. In Williams, the court specifically stated:

As to point three, we must reverse the provision of the order requiring the former husband to obtain alcohol abuse counseling and to attend parenting classes. It is improper to enter an order which exceeds the scope of relief sought by the pleadings, absent notice which affords the opposing party an opportunity to be heard with respect to the proposed relief.

Id. at 603.

Williams does not require that a parent specifically plead or seek relief in the nature of requiring parenting classes before such may be ordered under the circumstances here. In Williams, the post-dissolution complaint addressed only the limited issue of child support arrearages. Because the scope of the hearing was so limited, due process required that the trial court address only those matters and issues for which the parties had proper notice and an opportunity to be heard.

Here, in contrast, the trial court entered its order in the context of a full and final dissolution hearing designed to resolve the broad matters of custody, parental responsibility, primary residence, and visitation. In this case, the father had notice that the parties would be litigating the issue of parental responsibility, that the mother had asked for sole parental responsibility, and that matters relating to the best interests of the child would be fully explored. Under these circumstances, the trial court had authority to impose a parenting course requirement on one or both parents as part of its broad, inherent authority to act in the best interests of the child involved. Participation in an action involving custody, parental responsibility, primary residence, and visitation for minor children provides the parties notice that judicial authority to take action which is in the children's best interests may be exercised with regard to available remedies¹ that touch and concern the subject matter of the particular proceeding. Cf. Vanoy v. Johnson, 459 So.2d 453, 454-55 (Fla. 5th DCA 1984)

(concluding that the trial court did not err in modifying the mother's visitation privileges in the context of a validly noticed hearing on the mother's motion for change of custody, even though she had not sought enlarged visitation, because "the lesser deprivation which was granted by the trial court (enhancement of the mother's visitation privileges) was encompassed in the greater requested...