Talarico v. Talarico
Decision Date | 22 April 2020 |
Docket Number | No. 3D20-0560,3D20-0560 |
Citation | 305 So.3d 601 |
Parties | Sonia TALARICO, Appellant, v. Leonard TALARICO, Appellee. |
Court | Florida District Court of Appeals |
Sandy T. Fox, P.A., and Sandy T. Fox, Aventura, and Alisha B. Savani, for appellant.
Bette Ellen Quiat, Miami, for appellee.
Before SALTER, MILLER, and LOBREE, JJ.
Appellant, Sonia Talarico, the mother, appeals a series of nonfinal orders substantially curtailing her established timesharing with her twin minor daughters, at the behest of appellee, Leonard Talarico, the father. We have jurisdiction.1 See Fla. R. App. P. 9.130(a)(3)(C)(iii)(b). Because the lower tribunal based its findings upon non-record evidence and the evidentiary record below is devoid of a "substantial, material, and unanticipated change in circumstances" warranting a modification of the stipulated custody arrangement under the parenting plan, we reverse and remand for further proceedings. § 61.13(2)(c), Fla. Stat. (2019).
The mother and father wed in 1997 and their union produced twin daughters, now aged sixteen. By early 2009, marital discord developed, hence the mother filed for dissolution. The lower court terminated the marriage and ratified a negotiated parenting plan. Years later, the parties refashioned the existing arrangement, effectively endowing each parent with equal timesharing and shared parental responsibility. The court validated the modified plan, and for several years, the action remained dormant.
In January of this year, the mother, a practicing physician, unilaterally cancelled the planned dental surgery of one of the children, citing a lack of compliance with essential preoperative instructions. The father then filed an urgent motion to suspend the mother's timesharing. The motion contained scandalous allegations of parental alienation and sought to suspend all child support payments.
The lower tribunal duly convened an expedited hearing. Both parties were represented, and their attorneys made preliminary evidentiary proffers. The court then, at the request of the father, recessed the proceedings to conduct a closed, in-chambers interview of the children. No further evidence was received.
At the conclusion of the hearing, the court announced its intent to limit the mother's physical contact with the children to a shared meal at a restaurant twice per week and relieve the father of any obligation to furnish further child support payments.2 The mother inquired as to the basis for the ruling. The court declined to provide the parties with a synopsis of the in-chambers testimony, but generally articulated a finding that the mother exhibited inconsistent moods. The challenged orders were rendered and the instant appeal ensued.
Child custody determinations are "some of the most difficult and sensitive problems [that] face the judiciary." Waites v. Waites, 567 S.W.2d 326, 330 (Mo. 1978). Thus, "the trial court is vested with broad discretion." Peterseil v. Peterseil, 307 So. 2d 498, 499 (Fla. 3d DCA 1975) (citation omitted). However, "a trial court has far less discretion in modifying a custody order than in making the original determination." Bartolotta v. Bartolotta, 687 So. 2d 1385, 1386 (Fla. 4th DCA 1997) (citation omitted); see Bon v. Rivera, 10 So. 3d 193, 195 (Fla. 4th DCA 2009).
In order "[t]o justify modification, the [petitioning] parent carries an ‘extraordinary burden’ to prove the occurrence of a substantial and material change in circumstances since the original custody order's entry." Bartolotta, 687 So. 2d at 1386 (citation omitted). The demonstrated change in circumstances must have "adversely affect[ed] the welfare of the children." Young v. Hector, 740 So. 2d 1153, 1173 (Fla. 3d DCA 1998) (en banc) (Schwartz, C.J., dissenting) (citations omitted).
Section 61.13(2)(c), Florida Statutes, governs shared parental responsibility, and mandates consideration of numerous factors, among them "[t]he reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference." § 61.13(3)(i), Fla. Stat. (2019). Nonetheless, it is axiomatic that "[n]o person who is a party to a divorce proceeding—litigant, counsel, or chancellor—relishes the spectacle of a child testifying in open court as to his or her preference for one parent over another." Haase v. Haase, 20 Va.App. 671, 460 S.E.2d 585, 589 (1995) (citing Buck v. Buck, 320 Mich. 624, 31 N.W.2d 829, 831 (1948) ; Price v. Price, 127 Ark. 506, 192 S.W. 893, 894 (1917) ). "[A] child's choice between parents is often emotionally wrenching, and announcing that choice in open court could add significantly to the child's emotional toll." N.D. McN. v. R.J.H., 979 A.2d 1195, 1200 (D.C. 2009). Hence, "the preferred method of receiving such evidence in the majority of jurisdictions is to obtain the child's views in an in camera interview." Haase, 460 S.E.2d at 589 .
In conducting these closed proceedings, tribunals are charged with striking a proper balance between two competing interests: the "due process rights of the parents to know and respond to evidence ... and the privacy and best interests of the children." Helen S.K. v. Samuel M.K., 288 P. 3d 463, 473 (Alaska 2012). Typically, this is achieved by simultaneously recording or later disclosing an appraisal of the proceedings. See Monteiro v. Monteiro, 55 So. 3d 686, 689 (Fla. 3d DCA 2011) () (citation omitted); Fla. R. Juv. P. 8.625(c) () ; Fla. Fam. L. R. 12.407(a) ().
In the instant case, "[t]he record suggests that the judge relied primarily upon [the] in camera interview with the child[ren]" in modifying custody.3 Nowak v. Nowak, 546 So. 2d 123, 124 (Fla. 1st DCA 1989). Under these circumstances, "[t]he divulging of information ascertained from the in camera interview ... is required by due process principles." Uherek v. Sathe, 391 N.J.Super. 164, 917 A.2d 306, 308 (N.J. Super. Ct. App. Div. 2007) (citation omitted); see Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 288 n.4, 95 S. Ct. 438, 443 n.4, 42 L. Ed. 2d 447 (1974) () (citations omitted); Hickey v. Burlinson, 33 So. 3d 827, 829 (Fla. 5th DCA 2010) () (citation omitted); Nowak, 546 So. 2d at 124 () (citations omitted). However, here, the interview went unrecorded4 and the court declined to provide an appraisal or summary of the children's testimony.5 See N.D. McN., 979 A.2d at 1204 () ; Strain v. Strain, 95 Idaho 904, 523 P.2d 36, 38 (1974) (). Consequently, because no other evidence was admitted, "[m]odifying custody under these circumstances [was] an abuse of discretion, especially considering that the modification order drastically altered and severely limited the [m]other's contact with the children." Bartolotta, 687 So. 2d at 1387 (citation omitted); see also Kilgore v. Kilgore, 729 So. 2d 402, 407 (Fla. 1st DCA 1998) (); Finney v. Giddens, 707 So. 2d 856, 858 (Fla. 2d DCA 1998) ().
Accordingly, we reverse the orders under review and remand for further proceedings consistent with this opinion.
Reversed and remanded.
1 The mother sought to invoke our original jurisdiction by filing a petition for certiorari. As the challenged orders determine "the rights or obligations of a party regarding...
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