A.V. v. T.L.L.

• Decision Date: 30 June 2021
• Docket Number: No. 2D19-530,2D19-530
• Citation: 321 So.3d 940
• Court: Florida District Court of Appeals
• Parties: A.V., Appellant, v. T.L.L., Appellee.

321 So.3d 940

A.V., Appellant,

v.T.L.L., Appellee.

No. 2D19-530

District Court of Appeal of Florida, Second District.

June 30, 2021

Windy L. Wilkerson of Wilkerson Law Firm, P.A., Brandon, for Appellant.

Joyce A.G. Evans, Tampa, and Mark A. Neumaier, Tampa, for Appellee.

BY ORDER OF THE COURT:

Appellee's motion for rehearing is denied. The prior opinion dated August 7, 2020, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

PER CURIAM.

In this paternity action, A.V., the father, appeals from the final judgment and challenges the trial court's determination of time-sharing, the parenting plan, the decision to grant T.L.L., the mother, ultimate decision-making authority over educational issues, and the award of child support. We agree with the father that the final hearing was rife with errors, not the least of which was the magistrate's decision to allow the telephonic testimony of the mother's medical expert over the father's objection and without a determination of good cause as required by Florida Family Law Rule of Procedure 12.451(b). This error was compounded when the magistrate allowed the telephonic witness to testify without being properly sworn. See Fla. Fam. L. R. P. 12.451(d). This testimony was central to the magistrate's findings, and the mother has not convinced us that its admission was harmless. Accordingly, the final judgment must be reversed.¹

Because this case must be remanded for a new final hearing, we briefly address two of the father's claims of error in the final judgment. First, we remind the trial court that its determination regarding child support must be supported by competent substantial evidence, and that includes any decision to include in kind payments in a party's monthly income. See Dep't of Rev. ex rel. Shorter v. Amico , 265 So. 3d 681, 683 (Fla. 5th DCA 2019) ("[I]n kind payments should not be included in a party's monthly income for purposes of calculating income ‘unless the receipt of that money is shown to reduce personal living expenses.’ " (quoting Valentine v. Van Sickle , 42 So. 3d 267, 273 (Fla. 2d DCA 2010) )).

Decisions regarding parental responsibility must also be supported by competent substantial evidence, including decisions regarding ultimate decision making over education and medical care. See Musgrave v. Musgrave , 290 So. 3d 536, 541-44 (Fla. 2d DCA 2019) (reviewing whether competent, substantial evidence supported the trial court's decisions regarding shared parental responsibilities). While there may have been evidence to support giving the mother ultimate decision making over the child's medical care, there was no evidence regarding educational decision making. See Fazzaro v. Fazzaro , 110 So. 3d 49, 51 (Fla. 2d DCA 2013) (holding that the trial court's order awarding the parents shared parental responsibility for the child, but granting the mother ultimate responsibility for all decisions affecting the child's education, was an abuse of discretion where there was scant evidence to support the decision). Although there was record support for the trial court's finding that the child's school should be near the mother for medical reasons, the choice of the geographical location of the child's school is a separate issue from the host of other important decisions related to a child's education.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and LUCAS, JJ., Concur.

KELLY, J., Concurs specially with opinion.

KELLY, J., Concurring specially.

I find it necessary to address what transpired at the oral argument of this case. Both the mother and the father were present with counsel. It is evident from the record that the parties' relationship is not amicable. The mother, apparently with counsel Mark Neumaier's acquiescence, brought the parties' six-year-old son with her to the oral argument.² Although counsel for the father brought the child's presence to our attention, we believed we had no legal basis to require the mother and child to leave the courtroom. As a result, the child was exposed to a discussion about the parents' conduct to which no child should be privy.

Florida Family Law Rule of Procedure 12.407(a) prohibits children who are "related to a family law case" from attending any family law proceedings without prior order of the court based on good cause shown. One purpose of the rule...