Thomas v. Joseph

• Decision Date: 18 September 2019
• Docket Number: No. 1D19-0102,1D19-0102
• Citation: 280 So.3d 1107
• Parties: Melissa Jean THOMAS, Appellant, v. Henrithson JOSEPH, Appellee.
• Court: Florida District Court of Appeals

280 So.3d 1107

Melissa Jean THOMAS, Appellant,

v.Henrithson JOSEPH, Appellee.

No. 1D19-0102

District Court of Appeal of Florida, First District.

September 18, 2019

Rehearing Denied October 23, 2019

Jeffrey A. Conner of Three Rivers Legal Services, Inc., Lake City, for Appellant.

R. Pierce Kelley, Jr., Fort White, for Appellee.

Bilbrey, J.

Melissa Jean Thomas, the former wife, appeals the amended order on the supplemental petition to modify parenting plan filed by Henrithson Joseph, the former husband. The issue presented on appeal is whether shared parental responsibility and timesharing between the parties as established by a final judgment of dissolution of marriage may thereafter be modified without findings that the modification is in the best interests of the child. Although the former wife is not the child's biological mother, we hold that under the circumstances of this case, the amended order is erroneous on its face, and it must be reversed and remanded for further proceedings.

Background

In 2008, during the marriage of Ms. Thomas and Mr. Joseph, they adopted I.J. Also during the marriage, Mr. Joseph purportedly fathered Z.J. Unlike I.J., no record evidence was presented during the dissolution or the modification that Z.J. was adopted by Ms. Thomas. It was established during the dissolution that Z.J.'s biological mother was a relative of Ms. Thomas and that shortly after Z.J.'s birth, the birth mother voluntarily gave Z.J. to Ms. Thomas and Mr. Joseph to raise as their own. Z.J.'s birth certificate listed no father but listed the child's surname as "Joseph."

The marriage of Ms. Thomas and Mr. Joseph was dissolved by the final judgment of dissolution entered December 26, 2012. In the final judgment, the trial court found that the parties agreed that Z.J. "is the biological child of the Husband, but is not the biological child of the Wife." The court recognized the parties' agreement "that the children should remain together and that the parties will have shared parental responsibility [of both I.J. and Z.J.], with the Wife having majority timesharing with both children and the Husband having timesharing with them every other weekend."

The court provided Mr. Joseph "timesharing with the children every other weekend" and as the parties agreed for holidays. The final judgment specified how exchanges of the children would take place and provided that more specific orders regarding timesharing could be sought by either party.¹ Finally, the court ordered that "[t]he parties may modify as they mutually agree" but if they could not agree, "the timesharing arrangement ordered herein shall control." No appeal was taken from the final judgment of dissolution of marriage.

In May 2018, Mr. Joseph filed his supplemental petition to modify parental responsibility. He alleged certain changes in circumstances since the entry of the final judgment of dissolution, including his superior ability to provide a stable and comfortable home for the children and his concern about the living conditions and care Ms. Thomas provided. Based on these allegations of changed circumstances, Mr. Joseph sought sole parental authority and timesharing of Z.J., and at least equal timesharing with I.J.

In her response, Ms. Thomas denied Mr. Joseph's allegations and specifically denied that she failed to properly care for the children. In that response Ms. Thomas also "affirmatively asserts that the Former Husband is not the biological father of the minor child [Z.J.]."²

The court heard Mr. Joseph's supplemental petition to modify in October 2018. The hearing was not transcribed, but a stipulation of the evidence was prepared and approved for this appeal. See Fla. R. App. P. 9.200(b)(5). The approved stipulated evidence included Z.J.'s date of birth; that his "biological mother" was related to Ms. Thomas "in some way" but was now deceased; that Z.J.'s birth certificate lists his surname as "Joseph;" and that Z.J. lived with Ms. Thomas and Mr. Joseph beginning shortly after the birth in 2008, and resided primarily with Ms. Thomas after the final judgment of dissolution was entered in 2012. The stipulated testimony included Mr. Joseph's acknowledgment that he had denied he was Z.J.'s biological father in two court filings subsequent to the final judgment (in child support proceedings) and that he is not actually Z.J.'s biological father. However, he "accepts the determination that he is the biological father."

In its amended order on the supplemental petition to modify the parenting plan, the trial court found "an unforeseen substantial change in circumstances has been shown" but did not elaborate. See § 61.13(2)(c), Fla. Stat. (2018). The court also found that the final judgment "clearly shows" that Ms. Thomas is not a "parent" of Z.J. and, while there was no DNA evidence of parenthood, "no one other than [Mr. Joseph] has established any legal/court-ordered right to the child." The court ordered that Mr. Joseph was Z.J.'s "only living legal parent" and thus "may exercise all parental authority regarding [Z.J.], including where he resides and with whom." Accordingly, the amended order eliminated any parental status, parental responsibility, and timesharing for Ms. Thomas which had previously been established in the final judgment of dissolution of marriage. The court did not find or set out in its amended order any determination that it was in the child's best interests to modify the parental responsibility and timesharing provisions in this manner six years after entry of the final judgment.³ See § 61.13(3), Fla. Stat. (2018).

Ms. Thomas filed a timely motion for rehearing on grounds that the court had failed to acknowledge her court-ordered shared parental responsibility and majority parenting time with both children, as provided in the final judgment of dissolution. She also asserted that the court failed to apply the presumption of legitimacy for children born during a marriage. Finally, she argued that the trial court failed to determine and make findings that modification was in the best interests of Z.J. See § 61.13(2)(c), Fla. Stat. Rehearing was denied and this appeal followed.

Analysis

Ms. Thomas claims that the trial court failed to recognize her parental status under the final judgment of dissolution and modified the terms of the final judgment without a determination that the modification is in the best interests of the child. She also argues that she was deprived of equal protection of law when the court, on modification, did not apply the presumption that would apply if Z.J. had been her biological child born during the marriage. See Department of Health & Rehab. Services v. Privette , 617 So. 2d 305 (Fla. 1993) (holding if a child is born during a marriage, the law presumes that the husband of the wife and mother is the child's father). Because we are compelled to reverse on the first issue, we need not address the constitutional issue.⁴

"Generally, the failure to provide a transcript or a proper substitute precludes consideration of the merits of a challenge to a circuit court's decision to modify" parenting responsibilities. Kilgore v. Kilgore , 729 So. 2d 402, 405 (Fla. 1st DCA 1998). "However, even in the absence of a transcript, an appellate court can reverse in those instances when the trial court makes an error of law on the face of the judgment." Smith v. Wallace , 249 So. 3d 670, 671 (Fla. 2d DCA 2017).

The face of the amended order on the supplemental petition to modify does state the court's finding that "an unforeseen substantial change in circumstances has been shown," and the absence of a transcript precludes appellate review of this finding of fact. However, the amended order contains no mention of Z.J.'s welfare, best interests, and circumstances of the family. No reference to section 61.13 or the statutory factors listed in section 61.13(3)(a) – (t) appears in the order. Ms. Thomas' motion for rehearing asserted...