Wayno v. Wayno, 5D99-303.

• Decision Date: 24 March 2000
• Docket Number: No. 5D99-303.,5D99-303.
• Citation: 756 So.2d 1024
• Parties: Donna WAYNO and Louis C. Rohde, etc., Appellants, v. Thomas M. WAYNO, Appellee.
• Court: Florida District Court of Appeals

756 So.2d 1024

Donna WAYNO and Louis C. Rohde, etc., Appellants, v. Thomas M. WAYNO, Appellee.

No. 5D99-303.

District Court of Appeal of Florida, Fifth District.

March 24, 2000.

Rehearing Denied April 20, 2000.

Henry J. Martocci, Rockledge, for Appellants.

Thomas H. Yardley, Cocoa, for Appellee.

DAUKSCH, J.

This is an appeal from a judgment in a marital dissolution case. We find no error but write to address one point. Appellant asserts the court was bound to accept and ratify by judgment the mediated settlement regarding child custody once the court had granted its approval in accordance with rule 12.740(f)(2), Florida Family Law Rules of Procedure.

(2) After the agreement is filed, the court shall take action as required by law. When court approval is not necessary, the agreement shall become binding upon filing. When court approval is necessary, the agreement shall become binding upon approval. In either event, the agreement shall be made part of the final judgment or order in the case.

We disagree with appellant's assertion. The court had not heard evidence before its approval and granted the approval before rendering final judgment. It is axiomatic that only the court can be the final authority regarding child custody and child support and those issues can always be subject to review based on the evidence and, after judgment, upon a showing of a material change in circumstances. It goes without saying that the best interest of the child is the overriding factor to be considered. Even though the judge found in this case that a change in circumstances had occurred, that is not the guiding principle. Although the rule does not explicitly require it, it is at least implicit in the rule and certainly the better practice for the judge to not approve either custody or support before being fully informed about the welfare of the children. Thus, approval should be withheld in those issues until final judgment, or, if not, then the withdrawal of approval must be fully available until judgment. Therefore, the judgment is affirmed.

AFFIRMED.

COBB, J., concurs and concurs specially with opinion.

W. SHARP, J., dissents with opinion.

COBB, J., concurring specially.

I concur with the majority opinion. A trial judge has inherent authority to alter or rescind interlocutory orders prior to entry of final judgment. Young v. Young, 65 So.2d 28 (Fla.1953); Whitaker v. Wright, 100 Fla. 282, 129 So. 889 (1930). This authority certainly extends to a court's interlocutory approval of an agreement involving custody of children entered at a point in the case where the evidence has not been presented to the trial court. If this traditional concept is to be abrogated in custody cases, it should be done in a much clearer fashion than the provisions of Family Law Rule 12.740(f)(2).¹ I would construe that rule as providing that the interlocutory approval of a custody mediation agreement becomes final (and therefore no longer subject to rejection by the trial court) only at the time that agreement is made part of the final judgment, as is required by the rule. Thereafter, alteration of the custody provisions of the final judgment would be subject to change only upon a showing of a material change of circumstances. To construe the rule as does the dissent presents a trap for the unwary and well-intentioned trial judge, and seriously interferes with his obligation to protect the best interest of the child in a custody dispute.

W. SHARP, J., dissenting.

I respectfully disagree and would reverse this case. In my view, the trial judge erred when he changed the primary parental residency of the parties' daughter, after having approved the parties' mediation agreement which provided for primary residency to be with the former wife for the parties' daughter, and primary residency for the parties' son to be with the former husband. In my view, the majority opinion strips the new Family Law Rule of Procedure 12.740 of any effectiveness, or relevance, and if the majority opinion is to prevail in these cases, the rule needs reconsideration and redrafting.

Rule 12.740 provides for mediation of contested family matters in dissolution cases. If the parties reach an agreement through mediation, concerning any matter or issue, including legal or factual issues to be determined by the court, the agreement shall be reduced to writing, signed by the parties or stipulated to, and if not objected to by counsel timely under the rule, it is filed with the court by the mediator.² The issues of parental responsibility and primary residence were subjected to mediation in this case and the parties arrived at a formal settlement. The settlement was then presented to the court, pursuant to rule 12.740(f)(2).

Subdivision (f)(2) provides that after the agreement is filed by the mediator with the court, it becomes binding on the parties, if no court approval is required. But if court approval is necessary, "the agreement shall become binding upon approval. In either event, the agreement shall be made part of the final judgment or order in the case." We could find no case which discusses what kinds of settlement agreements necessitate court approval, but in any event in this case, the court did approve the mediated settlement agreement.

However, at the trial of this dissolution case, the court took the position that it was not bound by the court-approved settlement of the child custody issues. Seemingly, it recognized some difficulty with this position when it declared there had been a substantial change in circumstances since the settlement had been approved. However, it is clear from the testimony given by the two psychologists who testified in this case, which the trial court relied upon expressly as creating a change of circumstances, that nothing in fact had changed concerning the parties' circumstances since the mediation agreement had been approved.³

As to whether there had been a change in the parties' circumstances, Dr. Olsen was asked and answered the following questions:

Q. Do you know of anything or have you learned of anything since, that occurred since May of 1998, May 21st of 1998, which would constitute a substantial change in circumstances which would require this Court to overturn that mediation agreement?

A. No. I think these patterns have been going on, A, for a long time in the marriage and, B, have been escalated the whole time they've been living in the house but estranged. So nothing knew [sic] that I can see has occurred from May to the time that I evaluated them.

Q. You don't know of any emergency situation that would require a change?

A. No, I don't.

Similarly, when asked about a change in circumstances, Dr. Connick testified:

Regardless of whether you've done a custody evaluation, do you know and/or have you learned from your therapy sessions with Donna and Tommy and the children of any substantial change in circumstances which has occurred since May 21st, 1998 that would require a change of that agreement?

A. I don't know of any.

Even the former husband was unable to identify what emergency circumstances or change of circumstances had occurred since he signed the settlement agreement that would justify modification. He said: "Well, I think the most important thing is that Donna has failed to include her daughter, who she is petitioning the court for custody of, in her week-end activities and in her afternoon activities." He failed to tie this behavior to post-settlement behavior as opposed to his former wife's behavior prior to the settlement. Further, as measured by typical change of circumstances cases justifying a change in child custody, this testimony is clearly insufficient to meet that difficult burden. See Harpman v. Harpman, 694 So.2d 101 (Fla. 5th DCA 1997); Miller v. Miller, 671 So.2d 849 (Fla. 5th DCA 1996).

Dissecting this case to what actually occurred and by-passing the legalese, the trial judge in ...