IN ADOPTION PROCEEDING INVOLVING INVOLUNTARY TERMINATION OF PARENTAL RIGHTS UNDER CHAP. 63, COURT MUST MAKE INQUIRY WHETHER PARENT WOULD QUALIFY FOR COURT-APPOINTED COUNSEL AND IF SO, TO APPOINT THEM

In the Interest of D.P., III, a child. M.M., , v. K.P., 42 FLW D2261a (Fla. 2nd DCA) in case no. 2D16-4982 in an opinion filed on October 25, 2017, Order terminating birth mother’s parental rights under Chapter 63 step-parent adoption reversed and remanded where the record on appeal did not contain any orders disposing of the Birth Mother’s motion for extension of time or motion for appointment of counsel, and the docket sheet attached to the record did not reflect any orders ruling on these motions. The judgment on appeal did not address the motions either. Where it was not clear if Mother’s Motion for continuance and request for indigency application was made within the 20 days to answer, the Order terminating her parental rights was reversed and remanded for a new hearing.

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(WALLACE, Judge.) M.M., the Birth Mother, appeals from a judgment terminating her parental rights to her one child in conjunction with a proceeding for a stepparent adoption under chapter 63, Florida Statutes (2016). Because the trial court erred by failing to rule on the Birth Mother’s timely filed motion for appointment of counsel, we reverse the judgment and remand for a new proceeding.

  1. THE FACTS AND PROCEDURAL BACKGROUND

Because we reverse on a narrow procedural ground, a detailed recitation of the underlying facts is unnecessary. It suffices to say that, following the dissolution of the marriage of the Birth Mother and the child’s father in 2013, the Birth Mother absconded with the child, was eventually apprehended, and is now serving a sentence of five years’ imprisonment for illegally removing the child from the state. Following the dissolution of marriage, the father married K.P., the appellee Stepmother.

The Stepmother petitioned for termination of the Birth Mother’s parental rights and for adoption of the child in August 2016, alleging various grounds, including abandonment of the child resulting from the Birth Mother’s incarceration. The clerk of the circuit court issued a summons to the Birth Mother, attaching the petition; the summons was personally served on the Birth Mother at her prison. The summons recited that the Birth Mother would have twenty days to respond to the petition, failing which a default would be entered against her. The summons additionally notified her of her right to counsel:

If you cannot afford an attorney to represent you in this matter, you may be entitled to a court-appointed attorney. Only persons determined to be indigent are entitled to an attorney who is court-appointed. If you desire counsel and believe you may be entitled to representation by a court-appointed attorney, you must contact the Office of the Clerk of Court and request that an “Affidavit of Indigent Status” be mailed to you. That affidavit must be completed and returned to the Office of the Clerk of Court for review and a determination of whether you are indigent. You should act immediately in submitting a request for counsel and copy your request on Petitioner so that any request can be promptly addressed.

The summons announced that the hearing on the petition was set for October 6, 2016, and informed the Birth Mother that, if incarcerated, she should make arrangements with her classification officer to attend the hearing. The summons recited the hearing judge’s name and phone number and concluded with this warning written in all-caps:

Under sections 63.087 and 63.089, Florida Statutes, failure to timely file a written response to this notice and the petition with the court and to personally appear at this hearing scheduled on the petition constitutes grounds upon which the court shall end any parental rights you may have or assert regarding the minor child.

The return of service reflects service of the petition on the Birth Mother at her prison on August 26, 2016. Therefore, the deadline for serving a response to the petition would have been September 15, 2016. See Fla. R. Civ. P. 1.140(a) (requiring that “a defendant must serve an answer within 20 days after service of original process and the initial pleading”); Fla. Fam. L.R.P. 12.140 (same deadline). The Stepmother filed a motion for default on September 16, the twenty-first day after service of the summons, and the clerk entered a default that day.

The Birth Mother mailed a motion for extension of time to respond that was filed in the circuit court on September 22, 2016. The Birth Mother did not state a date in her certificate of service of this motion, nor was a prison date stamp affixed to the face of the motion. As a result, we cannot determine with certainty whether this motion was served within the twenty-day deadline set by the rules. In her motion, the Birth Mother acknowledged that she had been served with the summons on August 26; the Birth Mother also asserted that she had sent a request for an indigency application on that date, which she had not received.1

Also filed in the trial court on

September 22 was the Birth Mother’s motion for appointment of counsel. This motion has a certificate of service dated September 14, 2016, one day before the twenty-day deadline for service of a response to the petition.2 The record on appeal does not contain any orders disposing of the Birth Mother’s motion for extension of time or motion for appointment of counsel, and the docket sheet attached to the record does not reflect any orders ruling on these motions. The judgment on appeal does not address the motions either.

On September 23, 2016, the Birth Mother served from prison her response to the petition, which was filed with the clerk on September 30. In her response, the Birth Mother acknowledges the court’s jurisdiction and the underlying historical facts but denies the Stepmother’s allegations made against her.

The Birth Mother’s response is followed chronologically in the record by the final judgment of termination of parental rights, as well as a final judgment of stepparent adoption,3 both rendered on October 6, 2016. The termination judgment begins by reciting that the case “came to be heard on October 6, 2016,”4 and that the Birth Mother “failed to appear (telephonically) at the hearing, despite being given an opportunity to do so.” The court found further that the Birth Mother had not filed an indigency application, that she had failed to respond timely to the petition, that a clerk’s default had been entered against her, that she was entitled to no further notice of the proceedings, and that she “has been deemed to have admitted the well-pled allegations of the [p]etition.” The court terminated the Birth Mother’s parental rights, finding that doing so was in the child’s best interests and was the least restrictive means of protecting the child.5 The final judgment of stepparent adoption entered on the same day declares the child to be the legal child of the Stepmother, with the father retaining his parental rights.

  1. DISCUSSION

The petition in the trial court was brought under chapter 63, which governs adoptions. Unlike chapter 39, Florida Statutes (2016), governing juvenile dependency, which has an explicit requirement that counsel be provided for indigent parents,6 the sections of chapter 63 governing the termination of parental rights, see, e.g., §§ 63.063, .087-.089, include no such provision. Nevertheless, under both the federal and Florida constitutions, the Birth Mother had a right to representation by counsel at the termination hearing and, if found indigent, the right to court-appointed counsel. See In re D.B., 385 So. 2d 83, 90-91 (Fla. 1980) (holding in a dependency case “that counsel is necessarily required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child” and that “where permanent termination or child abuse charges might result, counsel must be appointed for . . . the natural married or divorced indigent parents of the child”); G.C. v. W.J., 917 So. 2d 998, 999 (Fla. 1st DCA 2005) (holding that “[a]lthough it is true that chapter 63, unlike chapter 39, does not expressly provide for appointed counsel, such an entitlement is inherent where fundamental parental rights are subject to termination;” and reversing for the trial court to verify the appellant’s affidavit of indigency and “appoint him counsel if he qualifies”); cf. O.A.H. v. R.L.A., 712 So. 2d 4, 4 (Fla. 2d DCA 1998) (holding that, under a former provision in chapter 63, “an indigent legal parent is entitled to appointed counsel in an adoption proceeding that involves the involuntary termination of his or her parental rights”); see also § 27.511(6)(a), Fla. Stat. (2016) (“The office of criminal conflict and civil regional counsel has primary responsibility for representing persons entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law in civil proceedings, including, but not limited to . . . proceedings to terminate parental rights under chapter 63.”); § 27.40(2)(a) (“Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the office of criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest.”).

The Birth Mother argues that the trial court erred by not addressing her motion for appointment of counsel, which, she contends, would likely have been granted.7 The Stepmother counters that the Birth Mother was not entitled to appointed counsel because she had not established indigency by the date of the final hearing. As the parties’ arguments reflect, the issue here is not the Birth Mother’s right to counsel. Rather, the issue is whether the Birth Mother properly invoked that right and whether the trial court was required to address her motion for appointment of counsel before proceeding with the termination hearing.

We conclude that the trial court erred in failing to address the Birth Mother’s motion for appointment of counsel. Two reasons support this conclusion. First, although the Birth Mother failed to comply with the summons’ instruction to request from and file with the clerk of the circuit court an “Affidavit of Indigent Status,”8 and to “act immediately,”9 the Birth Mother timely filed a motion for appointment of counsel. The Birth Mother not only served the motion within the twenty-day time limit required by the rules for serving a response to the petition, but she also physically filed the motion two weeks before the scheduled termination hearing. See Fla. R. Civ. P. 1.140(a); Fla. Fam. L.R.P. 12.140; cf. G.C., 917 So. 2d at 999 n.1 (“Appellant’s first [of two] request[s for appointment of counsel] was made two days before the hearing on the petition to terminate his parental rights.”).

Second, we recognize that “it is generally necessary [in a civil proceeding] to bring a pending matter to the trial court’s attention by having it noticed for hearing,” Al-Hakim v. State, 783 So. 2d 293, 294 (Fla. 5th DCA 2001) (emphasis added). However, in an adoption proceeding such as the one under review that involves the involuntary termination of parental rights under chapter 63, the trial court errs when it fails to comply “with the dictates of O.A.H. by making an inquiry as to whether the [parent] would qualify for court-appointed counsel and, if so, offering him [or her] representation.” M.G.C. v. M.C., 899 So. 2d 486, 487 (Fla. 2d DCA 2005). Accordingly, it was unnecessary for the Birth Mother to take any extra steps to have her motion addressed by the court. Indeed, the language of the summons would lead a recipient to believe that a request for counsel would be addressed upon the mere filing of the request.10 Furthermore, a quick perusal of the docket by the trial court before the termination hearing would have disclosed the pending motion for counsel as well as the Birth Mother’s motion for an extension of time to respond to the petition.

We reject the Stepmother’s argument that any error associated with the trial court’s failure to appoint counsel is harmless. The First District Court of Appeal disposed of a similar argument in the context of a dependency case as follows:

The Department has argued that the father failed to preserve arguments concerning the right to counsel as he did not request counsel during the shelter hearing. However, the statutory scheme and rule cited above indicate it is the responsibility of the trial court to ensure the parent’s right to counsel is respected, not the parent. Moreover, violations of the right to counsel are considered fundamental error which can be addressed for the first time on appeal. See State v. DiGuilio, 491 So. 2d 1129, 1137 (Fla. 1986) (stating “[d]enial of counsel is always harmful, regardless of the strength of admissible evidence, and can be properly categorized as per se reversible [error]”).

A.G. v. Fla. Dep’t of Children & Families, 65 So. 3d 1180, 1183 n.1 (Fla. 1st DCA 2011) (alterations in original) (emphasis added). We conclude that the principle should be no different for a chapter 63 termination case. See O.A.H., 712 So. 2d at 4; G.C., 917 So. 2d at 999. We also reject the Stepmother’s argument that the appointment-of-counsel issue is a moot point because the Birth Mother failed to appear telephonically at the termination hearing. The motion for appointment of counsel preceded the termination hearing procedurally and chronologically; had the motion been appropriately resolved, the failure to appear would not likely have occurred.

III. CONCLUSION

In conclusion, we reverse the final judgment of termination of parental rights and remand for a new hearing. As the trial court has already appointed counsel for the Birth Mother for purposes of this appeal based on an Application for Determination of Civil Indigent Status approved by the clerk of the circuit court, the trial court shall appoint counsel for the proceedings on remand. The trial court shall also vacate the clerk’s default. In addition, although the point is not formally before us, our reversal of the termination judgment will necessarily require the vacation of the final judgment of stepparent adoption.

Reversed and remanded with instructions. (MORRIS and BADALAMENTI, JJ., Concur.)

__________________

1The record on appeal does not include a request for an indigency application, and the docket attached to the record does not list it. The Birth Mother did not attach a copy of it to the motion for extension of time.

2We note that the mailbox rule for prisoners applies to civil as well as criminal cases. See Scullock v. Gee, 133 So. 3d 1208, 1209 (Fla. 2d DCA 2014); see also Griffin v. Sistuenck, 816 So. 2d 600, 601 (Fla. 2002) (“Under the mailbox rule, a notice is deemed filed when it is delivered to prison authorities for mailing.”). In light of the mailbox rule and the Birth Mother’s known status as a state prisoner, the better practice for the Stepmother would have been to allow at least five days after the twentieth day from the service of the summons for a response from the Birth Mother to arrive in the clerk’s office by mail.

3The judgment of stepparent adoption is not on appeal.

4There is no hearing transcript in the record. Because the error for which we reverse is apparent on the face of the record, this circumstance does not affect our disposition of the appeal. See Chirino v. Chirino, 710 So. 2d 696, 697 (Fla. 2d DCA 1998) (“[E]ven where the appellant fails to provide a transcript, the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment.”).

5The termination judgment recites sixteen bases for termination, reproducing verbatim the list found in the father’s “affidavit of inquiry” attached to and referenced in the Stepmother’s petition.

The Birth Mother untimely filed a motion for rehearing challenging the termination judgment, triggering a series of filings from both parties, none of which is relevant to our disposition of this appeal.

6§ 39.807(1)(a), Fla. Stat. (2016) (“At each stage of the proceeding under this part [part X, ‘Termination of Parental Rights’], the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents.”).

7The Birth Mother raises a second argument, which we need not address; the second argument is mooted by the resolution of her first argument concerning the appointment of counsel.

8The formal title of this form is “Application for Determination of Civil Indigent Status.” In re Approval of Application for Determination of Indigent Status Forms for Use by Clerks and Amendment to Fla. Rule of Criminal Procedure 3.984, 969 So. 2d 285, 287-88 (Fla. 2007).

9We note that the Birth Mother asserted in her motion that she had attempted to comply with the procedure outlined in the summons.

10We note that the simplest resolution of the motion would have been a denial without prejudice to the Birth Mother to file an indigency application with the clerk within a reasonable time, after which the court would rule on the motion.

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ORDER REDUCING FATHER’S TIME-SHARING AS A SANCTION FOR CONTEMPT IN AN ORDER ENTERED THREE YEARS AFTER THE CONTEMPT HEARING REVERSED

IN DUNCAN v. BRICKMAN f/k/a,DUNCAN, 42 FLW D2272a (Fla. 2nd DCA) in case no. 2D16-4251 in an opinion filed on October 25, 2017 Order reducing Father’s time-sharing as a sanction for contempt in an Order entered three years after the Contempt hearing reversed and remanded stating the sanction of changing custody does not coerce compliance; rather, it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct. In comparison, an award of make-up or additional visitation may serve both to redress the wrong to the parent and to effectuate compliance with the court’s authority. In addition, an order rendered three years after the hearing on Contempt should be reversed on those grounds as well.

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(LUCAS, Judge.) David Duncan, the father of a minor child, A.L.D., appeals from orders that emanated from a contempt proceeding in which the circuit court curtailed his timesharing with A.L.D. For the reasons that follow, we must reverse.

I.

The protracted litigation between Mr. Duncan and A.L.D.’s mother, Thalia Tatham Brickman, originated in 2006, when A.L.D. was sixteen months old.1 Initially, the parties were able to settle several issues, including those relating to the distribution of their property and debts. Disputes about the rearing of their child, however, remained. In August of 2008, the trial court entered a temporary timesharing order awarding majority timesharing to Mr. Duncan, while referring the final determination of paternity, timesharing, and child support to a general magistrate.

The general magistrate would not conduct hearings on these issues until the summer of 2010, two years after the referral, and those hearings would continue into the spring of 2011 before a report and recommendation was issued that winter. Ms. Brickman filed exceptions to the report and recommendation, and in the summer of 2012, now four years after the initial referral, the trial court held a hearing on those exceptions. Following that hearing, the trial court referred the matter back to the general magistrate for clarification of a procedural issue concerning rebuttal witnesses. In the meantime, from September 2011 to September 2012, Ms. Brickman had filed five motions for contempt, each alleging that Mr. Duncan had violated the temporary timesharing order, which, four years after its entry, was still the operative timesharing order in effect. The trial court heard these motions in a consolidated fashion over the course of two hearings, one held in the spring, and the other in the summer, of 2013.2 The hearings concluded, and the presiding judge informed counsel for the parties that he would reserve ruling and render an order at a later time.

The court would not issue that order for three years.

After the contempt hearings concluded, this matter lay dormant for several months until the spring of 2014, when the general magistrate — almost two years after the matter was referred back to him as a result of Ms. Brickman’s exceptions — issued a new report and recommendation. Ms. Brickman filed exceptions to this new report and recommendation as well, but for reasons unclear, the trial court did not rule on these exceptions for another two years. While Ms. Brickman’s latest exceptions remained pending, the circuit court entered an order on her contempt motions on June 13, 2016.

In its order, the trial court found Mr. Duncan in contempt of the temporary timesharing order, which, by now, had been in force for eight years. As part of its contempt order, the trial court modified the parties’ timesharing with A.L.D. Mr. Duncan had enjoyed majority timesharing for the past eight years, but the contempt order purported to grant both parents equal timesharing. In that regard, the order stated:

The prior order relating to temporary time-sharing is modified in the following respects. Mr. Duncan shall no longer have temporary majority time-sharing. Instead, temporary time-sharing shall be shared such that Mr. Duncan shall have fifty percent time-sharing with the Minor Child and Ms. Brickman shall have fifty percent time-sharing with the Minor Child.

. . .

Mr. Duncan is again admonished to refrain from exercising sole parental responsibility and from conduct that is not conducive to effective co-parenting. Further sanctions may be imposed if Mr. Duncan’s improper conduct continues.

This new timesharing arrangement would only last for two months, however, as in August of 2016, the trial court denied Ms. Brickman’s exceptions to the general magistrate’s second report and recommendation. Unfortunately, the trial court then proceeded to confuse matters through the entry of conflicting orders — the likely result of the prolonged delays in issuing its rulings. On August 19, 2016, the trial court entered a final order of paternity adopting the report and recommendation entered by the general magistrate five years prior. That report and recommendation had recommended that Mr. Duncan receive majority timesharing. As a result, although Mr. Duncan had been stripped of his majority timesharing just two months earlier in the contempt order, the previous timesharing schedule that gave him majority timesharing was effectively reinstated.

Ms. Brickman filed a timely motion for rehearing and clarification of the final order of paternity, pointing out that the court’s final order of paternity was based on evidence taken in 2011, while the contempt order had been based on evidence taken in 2013. Thus, Ms. Brickman argued, it was no longer proper for the trial court to fashion a timesharing schedule on the general magistrate’s report and recommendation since the magistrate’s findings were based upon stale evidence (in comparison to the evidence adduced during the 2013 contempt hearing). The trial court apparently agreed and on August 29, 2016, as A.L.D. turned eleven, entered an order on Ms. Brickman’s motion in which it explained that the timesharing provisions of the contempt order “supersede and control over” those in the final order of paternity — in effect, implementing the timesharing schedule the trial court awarded in its 2016 contempt order.

Mr. Duncan now appeals the clarified final order and the order of contempt that preceded it. We have jurisdiction.3

II.

This paternity case has become something of a procedural quagmire, but the legal issues before us are fairly discrete. Among his appellate arguments, Mr. Duncan points out two shortcomings in the trial court’s orders with which we can readily agree. First, as a matter of law, the trial court could not modify a custody order as a sanction for Mr. Duncan’s contempt. Second, the contempt order itself — rendered three years after the underlying evidentiary hearing and, in some instances, five years after the allegedly contumacious conduct occurred — cannot stand as a matter of judicial discretion. We address each point in turn.

In parenting disputes such as the case before us, a motion for contempt is ordinarily filed when a parent seeks judicial intervention to enforce an existing parenting plan; as a procedural vehicle to modify a parenting plan, a contempt motion is perhaps less than ideal. See LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131, 1133 (Fla. 2d DCA 1999) (observing that “the general purpose of a civil contempt order is to obtain compliance with the trial court’s initial order”).4 Regardless, one prohibition has emerged and remained clear. A court cannot modify timesharing as a sanction for a parent’s contempt of a custody order. See Hunter v. Hunter, 65 So. 3d 1213, 1214-15 (Fla. 2d DCA 2011); Simpson v. Young, 884 So. 2d 186, 188 (Fla. 2d DCA 2004); Pelliccia v. Arce, 867 So. 2d 619, 620-21 (Fla. 2d DCA 2004). As we explained in VonHegel:

The sanction of changing custody does not coerce compliance; rather, it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct. In comparison, an award of make-up or additional visitation may serve both to redress the wrong to the parent and to effectuate compliance with the court’s authority.

732 So. 2d at 1133.

It is clear to us that the trial court modified Mr. Duncan’s established timesharing with A.L.D. as a sanction for Mr. Duncan’s conduct. Indeed, Mr. Duncan’s contumacious actions, and the provisions of the temporary order that he violated, were the only stated reasons for why the court modified A.L.D.’s timesharing schedule. And the order’s admonishment towards its conclusion, that Mr. Duncan might be subject to “further sanctions” if his “improper conduct continues,” leaves no room for doubt what underlay the court’s decision to modify the prior timesharing schedule. The trial court sanctioned Mr. Duncan by reducing his timesharing with A.L.D., which was improper as a matter of law. That error alone would warrant reversal of the trial court’s orders. See Hunter, 65 So. 3d at 1215; Simpson, 884 So. 2d at 188; Pelliccia, 867 So. 2d at 621; VonHegel, 732 So. 2d at 1133.

There is an additional basis for reversal of the trial court’s contempt order that we must also touch upon. The proceedings below were marked by repeated, unexplained delays between the conclusion of evidentiary hearings and rulings from the trial court. See Fla. R. Jud. Admin. 2.215(f) (“Every judge has a duty to rule upon and announce an order or judgment on every matter submitted to that judge within a reasonable time.”). The most glaring of which was the three-year span between when the trial court completed the hearings on Ms. Brickman’s contempt motions and when it finally issued its ruling on those motions. Such a prolonged period of silence from the court assuredly contributed to confusion in the court’s subsequent rulings and consternation for the parents who found themselves in litigation before the court. As we observed in McCartney v. McCartney, 725 So. 2d 1201, 1202 (Fla. 2d DCA 1999), substantial delays “cause litigants and their counsel needless anxiety and expense. They also undermine confidence in the judicial system.” See also Ritter v. Dep’t of Children & Family Servs., 700 So. 2d 804, 806 (Fla. 5th DCA 1997) (Harris, J., concurring) (remarking that “litigant’s rights die because of judicial indecision,” and how “it is hard to imagine any excuse for a trial court not ruling within six months from the completion of the evidence”).

We ordinarily give deference to a trial court’s findings concerning contempt in family law proceedings and review such orders for an abuse of discretion. See Brooks v. Brooks, 164 So. 3d 162, 163 (Fla. 2d DCA 2015). But where so much time elapses between the evidence the trial court considers and the contempt ruling it ultimately issues that we can no longer retain any confidence that the court’s ruling was still a reasonable decision by the time of its issuance, that discretion is abused. Cf. Schang v. Schang, 53 So. 3d 1168, 1169-70 (Fla. 1st DCA 2011) (“In family law cases in particular, ‘trial courts have a responsibility to render their decisions under circumstances which give no doubt but that the matter was seriously and promptly considered.’ ” (quoting Falabella v. Wilkins, 656 So. 2d 256, 257 (Fla. 5th DCA 1995))). The trial court abused its discretion by withholding its ruling on Ms. Brickman’s contempt motions for three years, and so we are compelled to reverse the trial court’s contempt order for that reason as well.

III.

There may remain a question, perhaps one of vital concern for these litigants: what is the operative parenting plan and timesharing schedule for A.L.D. going forward? It is doubtful that the trial court’s entry of the August 19, 2016, judgment (which it later purported to “clarify” by adopting a superseding timesharing allocation from the contempt order that we have now reversed) was ever truly intentional. That judgment, however, has not been appealed in this case. The temporary relief order that was first fashioned when A.L.D. was three years old may no longer be in her best interests now that she is twelve. For more than a decade, these parents have been in litigation over how to rear their child, and so it troubles us to leave them in this state of affairs. But we, as an appellate court, cannot fashion a parenting plan for A.L.D. Cf. Farneth v. State, 945 So. 2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”). On remand, we encourage the trial court to convene a case management conference to address whether further proceedings are still needed to resolve any parenting disputes that may remain concerning A.L.D. — and to promptly schedule hearings and expeditiously rule upon them if there are.

Reversed and remanded. (CASANUEVA and SILBERMAN, JJ., Concur.)

__________________

1This case began as a dissolution of marriage case. Ms. Brickman filed a petition for a dissolution of marriage against Mr. Duncan, seeking entry of a parenting plan, child support, and alimony. Mr. Duncan filed an answer and a motion to dismiss, claiming that the parties never entered into a valid marriage with the intent of being married to one another. He also filed a counterpetition for paternity, in which he acknowledged that the two parties had A.L.D. in common. Ms. Duncan filed an “amended petition related to minor child and complaint for damages and other relief,” again seeking entry of a parenting plan and child support but also alleging one count of fraudulent inducement and one count of breach of contract. Ms. Duncan’s civil claims were transferred to the lower court’s circuit civil division, while the remainder of the amended petition became the operative pleading in this case. From the arguments presented to us, it appears that the question of whether this couple was ever married has been resolved.

2We note that several of the alleged violations concerned conduct on the part of Mr. Duncan that would have occurred two years before the hearing on the contempt motions.

3Cf. Kelly v. Snietka, 155 So. 3d 1278, 1278 (Fla. 4th DCA 2015) (exercising jurisdiction to review orders entered prior to final judgment in paternity action; “The court may review any ruling or matter occurring before filing of the notice [of appeal].” (emphasis omitted) (quoting Fla. R. App. P. 9.110(h))).

4Those courts that have permitted timesharing modification in the context of a contempt proceeding have taken care to point out that the moving party had affirmatively alleged and proven a substantial change in circumstances, that the minor child’s best interests required the modification, and that sufficient notice of the proposed modification was afforded to the nonmoving party. See, e.g.Cockrell v. Kinnett, 177 So. 3d 1041, 1042-43 (Fla. 5th DCA 2015); Campbell v. Campbell, 100 So. 3d 763, 765 n.3 (Fla. 4th DCA 2012).

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CASE CITES FLORIDA SUPREME COURT’S CLEAR GUIDELINES FOR DEALING WITH PARTY-SUBMITTED PROPOSED JUDGMENTS IN MARITAL DISSOLUTIONS

IN WEST v. WEST, 42 FLW D2294a (Fla. 5th DCA) in case no. 5D16-2925 in an opinion filed on October 27, 2017, Husband’s final judgment submitted ex parte, and adopted verbatim, without any modification, especially with no judicial pronouncements of any rulings or findings reversed in its entirety with exception of dissolving the parties’ marriage; and remanded for entry of an amended final judgment. finding the look of impropriety and citing to the clear guidelines set out by the Florida Supreme Court for dealing with party-submitted proposed judgments in marital dissolution cases.

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(PER CURIAM.) Wife appeals the marital dissolution final judgment that Husband submitted ex parte, and the trial judge adopted verbatim. It is well known that adopting a proposed final judgment, verbatim, without any modification, especially with no judicial pronouncements of any rulings or findings, is frowned upon. We affirm the portion of the judgment that dissolved the parties’ marriage, but reverse the balance in its entirety and remand for entry of an amended final judgment.

The parties’ marriage was dissolved after nearly twelve years. The issues for the one-day trial included alimony, child support, equitable distribution of marital property, creation of a parenting plan with time-sharing, a request for partition of the marital home, and requests for attorney’s fees. At the conclusion of trial, the trial judge did not entertain closing arguments, nor did he announce or otherwise indicate any findings or rulings. Rather, he instructed both sides to submit proposed final judgments to the trial judge’s assistant, and both sides timely complied.

For reasons that are not clear, Husband submitted his proposal without providing a copy to Wife; thus, she had no opportunity to review, comment on, or object to any aspect of Husband’s proposed judgment. Approximately six weeks post-trial, the trial court adopted Husband’s version, including all of its attachments, and entered it without making any changes. The trial court denied Wife’s timely filed motion seeking rehearing or a new trial.

We recognize that in dissolution proceedings it is common for the judge to direct each side to submit its proposed final judgment for consideration. See Merkin v. Merkin, 804 So. 2d 595, 598 (Fla. 2d DCA 2002). “Although a trial court may request, as it did in this case, that counsel for both parties submit a proposed final judgment, the court may not adopt the judgment verbatim, blindly, or without making in-court findings.” Rykiel v. Rykiel, 795 So. 2d 90, 92 (Fla. 5th DCA 2000), quashed on other grounds, 838 So. 2d 508 (Fla. 2003). The appearance of impropriety exists when the trial judge adopts verbatim one party’s one-sided final judgment, especially where the judge did not orally announce findings or rulings during or at the end of trial. The possible impropriety is that the trial judge may be perceived to have delegated his decision-making authority to Husband’s counsel because it does not appear that the judge independently made factual findings and legal conclusions.

The Florida Supreme Court set forth clear guidelines for dealing with party-submitted proposed judgments in marital dissolutions in Perlow v. Berg-Perlow, 875 So. 2d 383, 384 (Fla. 2004):

(1) [T]he trial judge may ask both parties or one party to submit a proposed final judgment;

(2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgment and make objections;

(3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and

(4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.

During the trial phase in this case, the trial judge made no indication on how he might rule on any of the many issues, nor did he announce any findings of fact. Nevertheless, Husband’s proposed judgment included very specific findings and rulings on disputed issues such as imputation of income, parental evaluations using statutory considerations, valuation and distribution of marital assets and liabilities, retroactive and future child support, and others. “It is . . . difficult to believe, on such fact-intensive issues as presented here, that an attorney can be so omniscient as to the court’s findings that they could be entirely correct without a single edit where the court made no rulings in open court.” Ross v. Botha, 867 So. 2d 567, 572 (Fla. 4th DCA 2004) (citation omitted).

“Unfortunately, proposed orders prepared by one side are frequently one-sided as to findings and rulings.” Id. Predictably, all rulings and findings on disputed issues in Husband’s proposed judgment were one-sided, favoring Husband. As noted above, Husband did not provide a copy of his proposed judgment to Wife; thus, the trial judge did not have the benefit of receiving any objections or corrections from Wife prior to entering the judgment. Furthermore, the potential harm in verbatim adoption of one party’s proposed judgment was compounded here because the final judgment contains numerous errors, including many findings that are not supported by competent substantial evidence in the record.1 We note that the one-sided nature of the judgment was consistent, as all of the errors favored Husband and prejudiced Wife. The numerous errors only add to our conclusion that the judgment cannot stand.

Accordingly, we affirm the portion of the final judgment dissolving the marriage, reverse the balance of the final judgment in its entirety, and remand for entry of an amended final judgment.2

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. (EVANDER, EDWARDS, and EISNAUGLE, JJ., concur.)

__________________

1The errors include but are not limited to: inappropriately imputing a higher income to Wife, using a lower than actual income for Husband, misstating the net valuation of the marital home, miscalculating overnights each parent shared with the children following separation, miscalculating financial contributions made by each parent to the children’s care and provision of health insurance, failing to credit Wife for payments of marital debts, failing to include valuable marital assets possessed by Husband in the calculation of equitable distribution, awarding Husband ultimate decision-making authority on all issues regarding the children, and ordering Wife to contribute to Husband’s attorney’s fees despite financial inability to pay.

2The trial judge should consider whether to take further evidence, given the passage of time since the original trial and entry of the original judgment.

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INMATE WHO DID NOT RECEIVE ORDER UNTIL 48 DAYS AFTER ENTRY WAS ENTITLED TO A NEW ORDER SO THAT HE COULD TIMELY APPEAL

IN GARCIA v. R. A. G. BY AND THROUGH HURD, 42 FLW D2292A (Fla. 5th DCA) in case no. 5D17-718 in an opinion filed on October 27, 2017 an inmate appealed a denial of his request to dissolve an injunction for protection against domestic violence; the DCA advised his remedy was to file a Rule 1.540 relief from judgment and request a new order where the order was not received by him until 48 days after it was entered. The Appellant’s rule 1.540(b) motion, in which he alleged under oath that he did not receive the challenged order until forty-eight days after its entry was summarily denied. Denial was reversed and remanded with directions that trial court shall conduct a hearing on Appellant’s rule 1.540(b) motion, permitting Appellant’s attendance by telephone if he is still incarcerated.

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(PER CURIAM.) Appellant, an inmate at a correctional facility, filed a motion to dissolve an injunction for protection against domestic violence. Simultaneously with that filing, he filed a motion seeking a telephone hearing on his motion to dissolve. Instead of granting the telephone hearing, the trial court entered an order scheduling a hearing at which “both parties shall be present.” Due to his incarceration, Appellant did not appear at the hearing, and the trial court denied the requested relief. Had Appellant timely appealed that ruling, we likely would have concluded that the failure to grant Appellant’s request for a telephone hearing was error. See Hubsch v. Howell Creek Reserve Cmty., 155 So. 3d 474 (Fla. 5th DCA 2015) (holding that trial court denied incarcerated homeowner due process by failing to allow him to appear telephonically at summary judgment hearing). When Appellant sought to file an untimely appeal, claiming that he was not served with the challenged order until forty-eight days after it was entered, we advised him that his only course of action was to file a motion in the trial court pursuant to Florida Rule of Civil Procedure 1.540(b).1See Snelson v. Snelson, 440 So. 2d 477, 477 (Fla. 5th DCA 1983) (holding that where no notice of entry of order was given to parties, relief is through rule 1.540(b) motion filed in trial court coupled with request for entry of new order).

This appeal involves the summary denial of Appellant’s rule 1.540(b) motion, in which he alleged under oath that he did not receive the challenged order until forty-eight days after its entry. Appellant sought to set aside the prior order and obtain a new order that he could timely appeal. The trial court denied the motion, without setting it for hearing. In its order, the trial court did not address the merits of Appellant’s contention that he did not receive the prior order in time to file an appeal. Instead, it addressed the merits of its original order. Because the rule 1.540(b) motion was facially sufficient, the trial court should have conducted an evidentiary hearing to determine whether Appellant was entitled to relief, the dispositive issue being whether Appellant failed to receive the challenged order in a timely manner through no fault of his own. See Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So. 3d 688, 691 (Fla. 2d DCA 2016) (holding that where rule 1.540(b) motion sets forth colorable claim for relief, trial court should conduct evidentiary hearing to determine whether relief should be granted (citing Chancey v. Chancey, 880 So. 2d 1281, 1282 (Fla. 2d DCA 2004))).

On remand, the trial court shall conduct a hearing on Appellant’s rule 1.540(b) motion, permitting Appellant’s attendance by telephone if he is still incarcerated.

REVERSED AND REMANDED. (ORFINGER, TORPY and WALLIS, JJ., concur.)

__________________

1Because the Family Law Rules of Procedure, adopted in 1995, apply to actions involving domestic violence injunctions, our prior order should have directed Appellant to rule 12.540, which is almost identical to rule 1.540(b).

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MOTHER ACCUSED OF DENIGRATING FATHER TO CHILDREN AND FAILING TO EXERCISE RIGHT OF FIRST REFUSAL COULD NOT BE HELD IN CONTEMPT

IN KANE v. SANDERS, 42 FLW D2356a (Fla. 3rd DCA) in case no.. 3D17-148 & 3D1769 in an opinion filed on November 1, 2017, Order in this consolidated appeal  granting Husband’s motion and supplemental motion to compel, for contempt, for sanctions, and for attorney’s fees and costs. reversed and vacated finding Wife  could not be sanctioned for contempt for violating a court directive or order which was not clear and definite as to how she was to comply. Order denying a group of pending motions, entered a month before the contempt order in Case No. 3D17-148, was a non-final order not subject to appeal. and dismissed for lack of jurisdiction.

(Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.)

(SALTER, J.) These consolidated appeals in this high-conflict, post-judgment family case are brought by the mother and former wife, Dr. Kane, from an order holding her in civil contempt (Case No. 3D17-148) and an order on a series of motions (Case No. 3D17-69). For jurisdictional and other reasons, we first describe the procedural history and then separately analyze the two appellate cases. We dismiss the appeal in Case No. 3D17-69 for lack of jurisdiction. In Case No. 3D17-148, we reverse and vacate the order granting the former husband’s motion and supplemental motion for contempt, sanctions, and attorney’s fees and costs.

Procedural History

The former husband and appellee here, Dr. Sanders, petitioned in mid-2010 for the dissolution of the parties’ six-year marriage. By March of 2011, he and Dr. Kane had entered into a mediated marital settlement agreement and parenting plan (“MSA”). The then-presiding family court judge approved and incorporated the MSA in a final judgment of dissolution of marriage only two weeks later. The parties’ daughters were then two and five years of age.

Within about three years, however, various disputes arose regarding time with the children and interpretation of a “right of first refusal” clause (the “ROFR”)1 in the parenting plan. The disputes intensified following Dr. Kane’s remarriage. Under Dr. Sanders’ interpretation of the ROFR, Dr. Kane could not leave the two girls in their home for 45 minutes to go to the grocery store without first offering to drive the children to Dr. Sanders’ home to leave them with him (and offering to pick up the children to return them to her home). As father and former husband, Dr. Sanders also claimed that Dr. Kane violated the final judgment because she made a “major health decision” unilaterally when she changed the date their daughters were to go to the dentist.

Dr. Sanders moved for the appointment of a parenting coordinator, and Dr. Kane agreed to such an order. Several months later, Dr. Sanders filed a “Motion to Compel, for Contempt, Sanctions, Attorney’s Fees and Costs,” alleging: five occasions when he was deprived of his right of first refusal; Dr. Kane’s alleged failure to pay for piano lessons, in violation of the MSA; her violation of “sleep-over” agreements and “healthy snacks” agreements established with the parenting coordinator; Dr. Kane’s interference with Dr. Sanders’ telephone contact with the two girls; and her “excessive physicality with and hitting of” the daughters.

When Dr. Sanders’ motion was heard in December 2016, the breaches of the ROFR turned out to involve strained interpretations of that clause (leaving one or both of the children at home with child care for a matter of hours rather than a full day, and for reasons which were practical rather than violative of the parenting plan embodied in the MSA). The alleged violation of the “healthy snacks” agreement arranged by the parenting coordinator occurred when the children refused to accept carrots, hummus, and apples Dr. Sanders brought to school on days when Dr. Kane was the custodial parent. Dr. Sanders supplemented the motion for contempt with allegations that Dr. Kane was refusing to meet with him and their older daughter (by then ten years old) regarding her participation on a jump rope team, such that Dr. Sanders would not allow further participation in those activities.2

Given Dr. Sanders’ concern about the children’s contact with Dr. Kane’s fiancé (who became Dr. Kane’s husband), the parties mutually agreed that a licensed psychologist should conduct an investigation and provide a report. Each party met twice with the psychologist, but Dr. Sanders then advised the psychologist that her work was suspended. Dr. Kane filed a motion to appoint a guardian ad litem for the minor children, and the parenting coordinator filed a request for a status conference to ask the family court for psychotherapeutic evaluation and treatment for the two girls.

Dr. Kane scheduled the psychologist for a deposition, but Dr. Sanders moved for a protective order based on an assertion that the psychologist was appointed based on a settlement agreement that failed.

After hearing these motions and cross-motions, the court entered an order on one group of pending motions (Case No. 3D17-69) (denying Dr. Kane’s motions for a guardian ad litem and an evaluation of the children, granting Dr. Sanders’ motion for protective order regarding the deposition of the psychologist, and denying the parenting coordinator’s request for a status conference). A month later, the court entered a more extensive order granting Dr. Sanders’ motions to compel, for contempt, for sanctions,3 and for attorney’s fees, and denying Dr. Kane’s motions for similar relief (Case No. 3D17-148). These appeals followed.

Analysis: Case No. 3D17-69 (Order on Pending Motions)

The order denying a group of pending motions, entered a month before the contempt order in Case No. 3D17-148, is a non-final order that is not subject to appeal. We lack jurisdiction and thus dismiss this case.

That portion of the order granting Dr. Sanders’ post-judgment motion for a protective order as to the deposition of the psychologist could be treated as a petition for certiorari. See S.W. Fla. Paradise Prop., Inc. v. Segelke, 111 So. 3d 268 (Fla. 2d DCA 2013). On the record before us, however, we would dismiss such a petition because the court’s ruling does not depart from the essential requirements of law, cause material injury throughout the remainder of the proceedings below, or effectively leave Dr. Sanders without an adequate remedy on appeal. Id. at 271 (quoting Segarra v. Segarra, 932 So. 2d 1159, 1160 (Fla. 3d DCA 2006)).

Analysis: Case No. 3D17-148 (Contempt)

The trial court has inherent authority to hold a party in contempt for intentionally failing to obey a court order. Rojo v. Rojo, 84 So. 3d 1259, 1261-62 (Fla. 3d DCA 2012). To hold a party in contempt, it must be found that the party acted intentionally to violate a court order. Fore v. State, 201 So. 3d 839 (Fla. 4th DCA 2016). Merely acting recklessly is insufficient to support a contempt. Id.

To support a contempt finding, the violated court order must also clearly and definitely make the party aware of the court’s command. M.J. v. State, 202 So. 3d 112, 113 (Fla. 5th DCA 2016). The language of the order must be clear and precise. Kranis v. Kranis, 313 So. 2d 135 (Fla. 3d DCA 1975). A contempt cannot be based on behavior that the court order does not contain. Haas v. State, 196 So. 3d 515, 523 (Fla. 2d DCA 2016); Paul v. Johnson, 604 So. 2d 883 (Fla. 5th DCA 1992).

“It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command.” Ross Dress for Less Virginia, Inc. v. Castro, 134 So. 3d 511, 523 (Fla. 3d DCA 2014) (quoting Northstar Inves. & Dev., Inc. v. Pobaco, Inc., 691 So. 2d 656, 566 (Fla. 5th DCA 1997)). When a trial court holds a party in contempt based on that party’s failure to follow an order that does not “clearly and definitely” make the party aware of what the party must do, the standard of review is legal error. Rojo, 84 So. 3d at 1261.

To the extent that the finding of contempt in this case is based on the ROFR, it fails because of the ambiguous terms of both the provision and the conduct alleged to have violated it. Requiring Dr. Kane to notify Dr. Sanders, and (potentially) to transport and pick up the children if Dr. Sanders exercised his right, comports with common sense when Dr. Kane could not stay with the children for some meaningful period of time, but is absurd when invoked regarding her hour-long trip to the supermarket or for similar errands. The ROFR’s failure to specify a minimum period of absence, and its reference to a parent’s inability to enjoy access to the child “for whatever reason” during a time-sharing slot, are a recipe for differing interpretations, for interrupting the children’s activities and focus by shuttling them hither and yon, and for fostering friction in post-dissolution parenting.

Here, as in Miranda v. Miranda, 566 So. 2d 16 (Fla. 4th DCA 1991), the challenged order fails to contain a “clear and definite command” sufficient to notify a party of his or her required conduct and is not enforceable via contempt. Dr. Kane’s interpretation, that the ROFR is applicable to overnight absences, is at least as reasonable as Dr. Sanders’ interpretation, that the ROFR also applies to short absences for any reason and any period during a day.

The other purported grounds for contempt are equally infirm. The charge that Dr. Kane denigrated Dr. Sanders in the presence of the minor children is based on a single instance after which it is undisputed that Dr. Kane apologized. Reckless action, as opposed to intentional misconduct, is insufficient to support a contempt. Fore, 201 So. 3d at 841. Dr. Kane’s alleged interference with Dr. Sanders’ Facetime calls with the children rests on a vague provision in the MSA as well. Dr. Kane’s alleged interruption of such calls on a very limited number of occasions (when a child was upset or sick) does not violate any parenting plan provision. The MSA provisions on communications with children could easily have been drafted to require isolated and private Facetime communications between the children and the absent parent.

Dr. Sanders’ claim that Dr. Kane could not enroll a daughter in Zumba classes (to take place during Dr. Kane’s timesharing periods) fails because he admitted that the parties had previously agreed verbally that each could enroll the children in after-school activities that took place during their respective timesharing intervals. Nor was Dr. Kane’s refusal to meet face to face with Dr. Sanders violative of the MSA when she imposed the condition that the meeting take place with a third adult present, but outside the presence of the children. The parenting plan does not require that a child be present at any such meeting, nor does it forbid the presence of a third person.

Conclusion

In Case No. 3D17-69, we dismiss the appeal taken from the “Order on Pending Motions” of December 7, 2016, for lack of jurisdiction.

In Case No. 3D17-148, we reverse and vacate the order granting Dr. Sanders’ motion and supplemental motion to compel, for contempt, for sanctions, and for attorney’s fees and costs.

__________________

1The parenting plan ROFR provision stated: “To the extent the party entitled to access with the child is unable to enjoy access to the child for whatever reason, then the other parent shall be entitled to the right of first refusal to care for the child over any other third party.” Importantly, the provision did not include any specifics regarding the amount of access time that would trigger the right, or regarding the responsibility as between the parties to pick up or drop off the children upon exercise of the ROFR.

2This recitation of alleged violations of the MSA is illustrative rather than exhaustive. No written parenting plan can be so complete and unambiguous as to address every eventuality that occurs with developing children over a course of years. Good will and the best interests of the children are to be the lodestars for former spouses and parents when the parenting plan is incomplete or ambiguous. The trial court correctly noted that “common sense” should apply regarding the ROFR.

3The trial court did not impose specific sanctions against Dr. Kane other than the assessment of attorney’s fees and costs.

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ALIMONY TO BE BASED ON GROSS INCOMES, LIFE INSURANCE TO SECURE MUST BE PROVEN AVAILABLE AND AFFORDABLE, ATTORNEY FEE AWARD REQUIRES REASONABLENESS OF RATE AND HOURS

In the case of BRADY  v.  BRADY, 42 FLW D2412b (Fla. 5th DCA) in case no. 5D17-1370 in an opinion filed on  November 9, 2017 several errors required reversal. Alimony award reversed and remanded to be based on net income rather than gross incomes, life insurance requirement reversed and remanded for finding of necessity, availability and affordability, award of attorney fees awarded reversed and remanded to make determination as to reasonableness of rate and hours expended, no abuse of discretion found in equitable distribution of marital assets and liabilities, but equalizer amount remanded to correct mathematical error.

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(LAMBERT, J.) Rhonda Brady (“Former Wife”) appeals the final judgment dissolving her marriage to Guy Brady (“Former Husband”), raising several issues for review. Because we find merit in three of her arguments, we reverse the judgment, in part, and remand for further proceedings.

First, Former Wife challenges the $800 per month permanent periodic alimony awarded to Former Husband and the $22,400 awarded to Former Husband for retroactive alimony computed at $800 per month over the twenty-eight-month period from the filing of the petition for dissolution of marriage to trial. Former Wife correctly argues that the trial court erred in basing the alimony award on the parties’ respective gross incomes and not their net incomes. See Gilliard v. Gilliard, 162 So. 3d 1147, 1154 (Fla. 5th DCA 2015) (“A party’s ability to pay alimony should be based on the party’s net income; not gross income.” (citing Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013)). On remand, the trial court must first determine the parties’ respective monthly net incomes and thereafter make a specific determination as to whether Former Husband has the need for alimony and whether Former Wife has the ability to pay alimony, not only prospectively but also for an award of retroactive alimony. See Motie v. Motie, 132 So. 3d 1210, 1213-14 (Fla. 5th DCA 2014) (holding that the trial court erred in not making any findings of fact regarding the one spouse’s need or the payor spouse’s ability to pay during the retroactive period).

Second, Former Wife contends that the trial court erred in requiring that she maintain a $500,000 life insurance policy as security for her alimony obligation. Section 61.08(3), Florida Statutes (2015), permits the trial court to order a party to purchase or maintain a life insurance policy as security for payment of alimony. However, to do so, the trial court must make findings in the final judgment as to the spouse’s insurability, the cost of the proposed insurance, the ability of the spouse to afford the insurance, and whether appropriate circumstances exist to justify ordering the spouse to maintain this life insurance. See Bracero v. Bracero, 849 So. 2d 388, 390 (Fla. 5th DCA 2003) (citing Layeni v. Layeni, 843 So. 2d 295 (Fla. 5th DCA 2003); Lopez v. Lopez, 780 So. 2d 164 (Fla. 2d DCA 2001)). These factual findings are lacking in the present final judgment. Thus, if the trial court again awards Former Husband permanent periodic alimony on remand, it may, in its discretion, require Former Wife to maintain an appropriate1 amount of life insurance as security for her alimony obligation, but it must make the required findings to support that determination.

Third, Former Wife argues that the trial court abused its discretion in ordering her to pay $5000 in attorney’s fees to Former Husband. We agree. “The standard for the trial court’s award of attorney’s fees in a dissolution action first depends upon the financial need of the requesting party and the financial ability to pay of the other party.” Ortiz v. Ortiz, 42 Fla. L. Weekly D2025 (Fla. 3d DCA Sept. 20, 2017) (citing Derrevere v. Derrevere, 899 So. 2d 1152, 1153 (Fla. 4th DCA 2005); § 61.16, Fla. Stat. (2016)). Moreover, if the trial court finds that an entitlement to an award of attorney’s fees has been established based upon the need and the ability to pay, the court must then make factual findings that justify the specific amount of fees awarded. Id.

The trial court made no findings as to a reasonable hourly rate for Former Husband’s attorney’s services nor a reasonable number of hours for the attorney to have expended in representing Former Husband. The only basis provided by the court in its final judgment for this award is that Former Husband testified that he owes his attorney $5000 for taking this case to trial and asked that Former Wife be required to pay these fees. However, simply awarding the amount charged by an attorney without additional findings of fact is improper and an abuse of discretion. Id. (quoting Campbell v. Campbell, 46 So. 3d 1221, 1223 (Fla. 4th DCA 2010)). On remand, after first addressing alimony, if the trial court thereafter finds that Former Husband is entitled to an award of attorney’s fees, cf. Galligar v. Galligar, 77 So. 3d 808, 813 (Fla. 1st DCA 2011) (holding that trial court abused its discretion in awarding attorney’s fees where an equitable distribution of the marital property has been achieved and the trial court has equalized incomes through its alimony award), then it must also make the required factual findings to support the amount of the attorney fee award.

Finally, Former Wife asserts that the trial court committed three separate errors in its equitable distribution of the parties’ marital assets and liabilities. Our standard of review of a trial court’s determination of equitable distribution is abuse of discretion. Coleman v. Bland, 187 So. 3d 298, 299 (Fla. 5th DCA 2016) (quoting Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008)). We find no abuse of discretion in the trial court’s distribution of the marital assets and liabilities, but we conclude that the trial court made a mathematical error in the final judgment that must be corrected. In its equitable distribution of the marital assets and liabilities, the net amount distributed to Former Wife exceeded Former Husband’s net benefit by $28,407.27. To rectify this uneven distribution, the trial court ordered that Former Wife pay an “equalizing payment” to Former Husband of $28,407.27 to achieve an equal division of the assets and liabilities. However, this equalizing payment merely switched the parties’ positions so that Former Husband’s net benefit from the equitable distribution now exceeds Former Wife’s by the same $28,407.27. The mathematically correct equalizing payment is $14,203.64. Therefore, on remand, the trial court is directed to amend the final judgment to reduce Former Wife’s equalizing payment to Former Husband to $14,203.64. See Smith v. Smith, 39 So. 3d 458, 459-60 (Fla. 2d DCA 2010) (finding that when it is clear from the face of the final judgment that the trial court intended an equal distribution but, due to a mathematical error, the court effected an unequal distribution, reversal of the final judgment is necessary).

In sum, we reverse the portion of the final judgment that (1) awards Former Husband alimony, (2) requires Former Wife to maintain life insurance as security for the alimony, (3) awards Former Husband attorney’s fees, and (4) directs Former Wife to pay Former Husband the sum of $28,407.27 to equalize the court’s distribution of the marital assets and liabilities, and we remand for further proceedings on these matters consistent with this opinion. The trial court may take additional evidence as necessary. As to all other matters, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings. (SAWAYA and EVANDER, JJ., concur.)

__________________

1The court may consider whether $500,000 in life insurance is needed to fully secure any alimony awarded. Former Husband was fifty-seven years old at the time of the final judgment, and Former Wife was fifty-two. At the previous rate of $800 per month, it would have taken Former Wife just over fifty-two years to pay $500,000 in alimony.

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PETITIONER FOR INJUCTION AGAINST CYBERSTALKING WAS ENTITLED TO A HEARING AND ABILITY TO REFILE AFTER CURING PROCEDURAL DEFECTS

IN VITALE V. HOLMES, 42 FLW D2315a (Fla. 4th DCA) in case no. 4D17-1462 in an opinion filed on November 1, 2017, Order denying petition for injunction for protection against CYBER STALKING/STALKING reversed finding case law requires the court to hold a hearing, or otherwise provide an explanation of those deficiencies, prior to summarily denying the petition. Here, the trial court neither held a hearing nor explained the basis for its conclusion that the eleven-page petition, supported by an additional twenty-five pages of attachments, failed to allege sufficient facts to support entering an injunction. It may in fact have been true that the Appellant failed to allege sufficient facts to support the entry of an injunction but it was error to do so without a hearing or otherwise providing an explanation of those deficiencies, prior to summarily denying the petition.

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(KUNTZ, J.) The Appellant appeals the circuit court’s order summarily denying his petition for protection against cyberstalking/stalking against Appellee without prejudice to refile the petition after curing purported procedural defects. We reverse because the Appellant was either entitled to an explanation of the reasons for the summary denial or a hearing on his petition.

The Appellant filed a petition in the circuit court alleging five instances of harassment and stalking. He included multiple pages of handwritten details regarding the alleged incidents. The court summarily denied his petition, checking a box on the form order that states, “Petitioner has failed to allege facts sufficient to support the entry of an injunction for protection against CYBER STALKING/STALKING.” The court noted “insufficient allegations of stalking as defined by law.”

On appeal, he argues that he was entitled to a hearing and a detailed explanation as to the reasons for the denial. In lieu of filing an answer brief, the pro se Appellee filed what she titled her “Notice of Consent in Lieu of Answer Brief.” We previously issued an order treating her filing as an answer brief. In the filing, the Appellee states that she was not notified of the proceedings in the circuit court until the filing of this appeal. She further states that had she been notified she would have agreed to allow the Appellant a hearing. However, the court sua sponte denied the Appellant’s petition without prejudice. The Appellee also notes that “[Appellant] chose to forego the additional and multiple remedies that were made available to him in the lower tribunal and, instead, filed an appeal.”

We acknowledge the Appellee’s candor to this Court in her “Notice of Consent.” She has effectively confessed error; an error she had no part in procuring.

On the merits, and as conceded by the Appellee, we must reverse. We have held that a court must hold a hearing or specify the deficiencies leading to a denial of a petition for injunction against domestic violence. Chizh v. Chizh, 199 So. 3d 1050, 1051 (Fla. 4th DCA 2016); Sanchez v. State, 785 So. 2d 672, 677 (Fla. 4th DCA 2001). Here, the Appellant filed a relatively detailed petition asserting five instances of purported cyberstalking/stalking. However, the court neither held a hearing nor explained the basis for its conclusion that the eleven-page petition, supported by an additional twenty-five pages of attachments, failed to allege sufficient facts to support entering an injunction. It may in fact be true that the Appellant failed to allege sufficient facts to support the entry of one. However, our case law requires the court to hold a hearing, or otherwise provide an explanation of those deficiencies, prior to summarily denying the petition.

Reversed and remanded for further proceedings. (GERBER, C.J., and WARNER, J., concur.)

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$94K+ ATTORNEY FEE AWARD TO HUSBAND FOR WIFE’S MERITLESS CLAIM STRICKEN ON TECHNICALITY

IN DE CASTELO BRANCO FERREIRA CLEARY, aka CLEARY v. CLEARY, 42 FLW D2361a (Fla. 2nd DCA) in case no. 2D16-4691 in an opinion filed on November 3, 2017 award of attorney fees to husband for wife’s meritless claims found supported  by factual determinations, but failed to describe what legal basis supported an attorney’s fee award in favor of the Former Husband, whether it might be section 61.16, Florida Statutes (2016), Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), or the court’s “inherent authority” to sanction egregious conduct or bad faith litigation. The final judgment included findings that the Former Wife was entitled to have herattorney’s fees paid for by the Former Husband (up to December 1, 2014), and that the Former Husband had an ability to pay those fees for her. Those findings precluded premising a fee award to the Former Husband under section 61.16 and Rosen; and the FH argued against inherent authority thus there was nothing to support the award and the Order was remanded to strike the attorney fee award.

Full opinion follows at woltlaw.com Twitter:Ewolt2, Facebook-Law offices of Elizabeth Wolt, PA

(LUCAS, Judge.) In Cleary v. Cleary, 872 So. 2d 299 (Fla. 2d DCA 2004), an opinion that provides the backdrop for the present appeal, we reversed part of the circuit court’s equitable distribution and retroactive alimony award in a final judgment of dissolution of marriage and remanded the case for further proceedings so that the circuit court could fashion an appropriate adjustment. We do not know why, but the parties chose not to pursue the matter further in the circuit court for more than a decade. In 2014 and 2015, however, the litigants brought the dispute back before the court, seeking what was, in essence, an accounting of all the payments and transactions that had transpired which they contended should be considered in the wake of this court’s 2004 opinion and remand. On August 30, 2016, after the conclusion of evidentiary hearings in which the parties presented numerous financial documents and the testimony of accountants, the circuit court entered a final judgment. The final judgment incorporated findings from a prior omnibus order and money judgment that had been entered on October 5, 2015. Among its rulings and determinations, the circuit court’s final judgment awarded $94,482.25 of attorney’s fees and costs to Robert W. Cleary, the Former Husband. Maria Tereza de Castelo Branco Ferreira Cleary, the Former Wife, now appeals that ruling.

From our review of the record, we find no error in the court’s factual determinations, including its conclusion that the attorney’s fees and costs the Former Wife incurred after a December 1, 2014, meeting between the parties’ respective accountants were not reasonable. We also agree with the circuit court’s observation in the final judgment that the Former Wife’s “pursuit of her claims [was] completely without merit, unjustified[,] and caused attorney’s fees and costs for [the] Former Husband that should not have been incurred.”1

What we find problematic is that the final judgment never described what legal basis supported an attorney’s fee award in favor of the Former Husband, whether it might be section 61.16, Florida Statutes (2016), Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), or the court’s “inherent authority” to sanction egregious conduct or bad faith litigation. See Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002); Myrick v. Myrick, 214 So. 3d 769, 772 (Fla. 2d DCA 2017). Although otherwise thorough and detailed, the final judgment is silent on this point.

In his briefing and at oral argument, the Former Husband disclaimed inherent authority as a basis for the circuit court’s ruling, instead arguing that we should simply construe the circuit court’s findings within the framework of section 61.16(1) and Rosen. We are prevented from doing so, however, because the final judgment included findings that the Former Wife was entitled to have herattorney’s fees paid for by the Former Husband (up to December 1, 2014), and that the Former Husband had an ability to pay those fees for her. Those findings preclude premising a fee award to the Former Husband under section 61.16 and RosenSee Rogers v. Wiggins, 198 So. 3d 1119, 1121 (Fla. 2d DCA 2016) (holding under section 61.16(1) and Rosen that “[w]hile the trial court may take into account the manner in which the mother litigated a case, that factor ‘does not, however, abrogate the requirement that [the mother] have the ability to pay.’ ” (second alteration in original) (quoting Zanone v. Clause, 848 So. 2d 1268, 1271 (Fla. 5th DCA 2003))); Hahamovitch v. Hahamovitch, 133 So. 3d 1020, 1024-25 (Fla. 4th DCA 2014) (“Rosen cannot be applied to allow an award of attorney’s fees in favor of a spouse with the greater financial ability to pay.”). Were we to categorize the final judgment’s fee award as an exercise of inherent authority — which, again, the Former Husband does not believe we should do — we would still be constrained to reverse that part of the judgment, as the disputed accounting issues concerning credits and payments between these litigants do not present the kind of “extreme case” that would give rise to this “rarely applicable” common law sanction. See Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998); Hallac v. Hallac, 88 So. 3d 253, 259 (Fla. 4th DCA 2012) (“Such awards are rarely applicable and should be reserved for extreme cases . . . .”).2

Accordingly, we must reverse the portion of the final judgment that awards the Former Husband his attorney’s fees from the Former Wife. We affirm the judgment in all other respects. On remand, the circuit court shall enter an amended final judgment striking the fee award in favor of the Former Husband.

Affirmed in part; reversed in part; remanded with instructions. (CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.)

__________________

1It is quite clear that the circuit court found the Former Husband’s expert accountant far more credible and persuasive than the Former Wife’s accountant, a determination that the circuit court was free to make and that was amply supported by the record.

2We would also observe that, although detailed in their recitation of the evidence the court considered, neither the final judgment nor the omnibus order recite factual findings of bad faith conduct with the requisite “high degree of specificity” necessary to invoke the court’s inherent authority to impose sanctions. See Moakley, 826 So. 2d at 227.

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WIFE’S ALIMONY HAD TO BE INCREASED TO ACCOUNT FOR MARITAL DEBTS COURT DISTRIBUTED TO HER

IN DOWLING v. DOWLING, 42 FLW D2376a (Fla. 1st DCA) in case no. 1D16-2264 in an opinion filed on November 6, 2017, Order reversed and remanded on issue of alimony amount awarded Wife to recalculate Wife’s needs and Husband’s ability to pay after allocation of debt by trial court added over $1,000.00 per month to Wife’s expenses and reduced husband’s expenses by the same amount.

Full opinion follows:

(PER CURIAM.) Susan White Dowling, the former wife, appeals from a final judgment of dissolution of marriage. We agree with her argument that the alimony award must be recalculated, but otherwise affirm without comment.

On June 17, 2014, Ms. Dowling filed a petition for dissolution of marriage from her husband Jason Dowling. After conducting discovery, the parties went to a bench trial on issues related to the equitable distribution of assets and debt and to the determination of entitlement to alimony. After hearing the evidence, the trial court found Ms. Dowling’s net monthly income to be $5,418.81 and her monthly expenses to be $6,199.28. The court found Mr. Dowling’s net monthly income to be $11,729.31 and his monthly expenses to be $10,037.06. The court’s income and expense findings were based on the parties’ financial affidavits which indicated that Jason Dowling paid the full monthly amount of $2,053.98 on a line of credit owed by the parties. Based on these numbers, the court found Jason Dowling had an ability to pay alimony, and ordered him to pay durational alimony to his former wife of $1,200 per month for five years.

In general, “[t]he primary factors to be considered in deciding to award alimony are the needs of one spouse and the ability of the other spouse to pay.” Motie v. Motie, 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014) (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980)). An alimony award is insufficient if it “does not ‘provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.’ ” Rhoads v. Rhoads, 213 So. 3d 968, 970 (Fla. 1st DCA 2015) (quoting Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000)).

In this case, the trial court’s alimony calculation did not take into account the change it ordered with respect to the parties’ payment of the $2,053.98/month line of credit debt. The trial court made each party responsible to pay for one-half of that debt, whereas the financial affidavits used to compute alimony assumed that Mr. Dowling was paying it entirely himself. Making Ms. Dowling responsible for one-half of this debt substantially increased her monthly expenses, and comparatively lowered Mr. Dowling’s monthly expenses, so that their expenses were not accurately reflected in the court’s findings. Indeed, adding a line-of-credit payment of over $1,000 per month to Ms. Dowling’s expenses consumes almost all of the $1,200 alimony award and doesn’t appear to “provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Rhoads, 213 So. 3d at 970 (internal quotation marks and citation omitted).

Accordingly, we reverse the alimony award for reconsideration in light of the court’s distribution of the marital debt. The judgment is otherwise affirmed. (WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.)

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FATHER PERMITTED TO KEEP CHILD AND SUSPEND MOTHER’S TIMESHARING AWAITING HEARING ON MODIFICATION & RELOCATION

IN SHALEESH v. SHALEESH, 42 FLW D2379a (Fla. 3rd DCA) in case no. 3D17-2094 in an opinion filed on November 8, 2017, Non-Final Order granting Father suspension of timesharing pending outcome of Motion to modify timesharing and approve relocation after in camera view of the child finding no abuse of discretion.

Full opinion follows:

(PER CURIAM.) Karin Shaleesh (“former wife”) challenges a non-final order granting Joseph Shaleesh’s (“former husband”) motion for a temporary suspension of the parties’ timesharing plan with respect to their minor child, LS, and permitting LS to reside with the former husband in Miami-Dade County pending the outcome of a final hearing on the former husband’s verified petition for modification of timesharing and relocation of LS to Florida. “In order to obtain a temporary custody modification, the moving party must satisfy a two-part test by establishing through competent, substantial evidence that (1) there has been a substantial or material change in circumstances and (2) the modification is in the best interest of the child or children involved.” Bon v. Rivera, 10 So. 3d 193, 195 (Fla. 4th DCA 2009); see also Bronstein v. Bronstein, 167 So. 3d 462, 464 n.3 (Fla. 3d DCA 2015). Upon reviewing the transcripts of the hearing conducted below, at which: (1) the former wife was both present and participated; and (2) the trial court conducted a transcribed, in camerainterview of LS, we find that the trial court did not abuse its discretion in entering the non-final order on review. Bon, 10 So. 3d at 195 (“The standard for reviewing a trial court’s ruling on a motion to modify custody is abuse of discretion, although the trial court has much less discretion to modify a custody order than it enjoys in making the original custody determination.”).

Affirmed.

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