Summary
In Idelson v. Carmer, 330 So.3d 81, 82-83 (Fla. 2d DCA 2021), the parties agreed in their mediated parenting plan, by handwritten notation, that the youngest child's inclusion in their timesharing arrangement could "be addressed by motion" any time after that child's third birthday.
Summary of this case from Perseo v. DonofrioOpinion
No. 2D20-1221
06-18-2021
Jennifer IDELSON, Appellant, v. Jayson CARMER, Appellee.
Matthew P. Irwin of Men's Rights Law Firm, Cape Coral, for Appellant. Joseph P. Hoffman, Fort Myers, for Appellee.
Matthew P. Irwin of Men's Rights Law Firm, Cape Coral, for Appellant.
Joseph P. Hoffman, Fort Myers, for Appellee.
LUCAS, Judge.
BY ORDER OF THE COURT:
Appellee's motion for rehearing is granted to the extent that the prior opinion dated April 30, 2021, is withdrawn, and the attached opinion is issued in its place. Appellant's countermotion for clarification and/or rehearing is denied. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
Jennifer Idelson (the Mother) appeals a supplemental final judgment that revised a stipulated parenting plan that had been incorporated into a prior judgment. The plan governs timesharing for the parties' three minor children. We need not recount the acrimony that is apparent in this record. Suffice to say, as the family court aptly noted, the Mother's relationship with Jayson Carmer (the Father) is one of "high conflict."
We do not doubt the court's assessment that it would be in the minor children's best interest to modify the parties' parenting plan. The family court correctly observed that it need not decide whether a substantial unanticipated change in circumstances had occurred in order to include S.J.I. into the parenting plan. The parenting plan, which was adopted by the mediation agreement and made a part of the final judgment, included a handwritten provision (initialed by the parties) that stated, "Inclusion of [S.J.I.] into this parenting plan may be addressed by motion anytime after [S.J.I.'s] 3rd birthday." That precipitating event has occurred. The parties acknowledge and we agree the provision is clear that the parties intended the family court to incorporate their youngest child into the parenting plan upon the filing of a motion and without the need to show that a substantial unanticipated change in circumstances had occurred. See Wade v. Hirschman , 903 So. 2d 928, 932 n.9 (Fla. 2005) ("The substantial change test applies unless the judgment otherwise provides for the standard that should be applied when one party seeks a modification."); Segarra v. Segarra , 947 So. 2d 543, 547 (Fla. 3d DCA 2006) ("The Father is not required to demonstrate a substantial change in circumstances to modify the visitation provisions in the final judgment because the MSA between the parties specifically contemplated revisiting the issue of visitation at the time the child began formal schooling."); Mooney v. Mooney , 729 So. 2d 1015, 1016 (Fla. 1st DCA 1999) ("We find no error in [the trial court's determination that neither party bore a higher burden of proof] based upon the custody arrangement between the parties, which was incorporated in the final judgment of dissolution, ... [where] the parties agreed at the time of dissolution that the beginning of school would constitute a change of circumstances which would require the custody issue to be readdressed.").
However, to the extent that either party seeks modification of the parenting plan unrelated to the previously agreed upon inclusion of S.J.I. into the plan, the court will need to determine whether a substantial unanticipated change in circumstances had occurred. The court erred in concluding otherwise. See § 61.13(3), Fla. Stat. (2019) ("A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."); D.M.J. v. A.J.T. , 190 So. 3d 1129, 1131-32 (Fla. 2d DCA 2016) (" 'It is well settled that in order to modify a timesharing plan there must be a substantial change in circumstances.' And 'the petitioning party has the extraordinary burden to prove the substantial change in circumstances.' " (quoting George v. Lull , 181 So. 3d 538, 540 (Fla. 4th DCA 2015) )); Sidman v. Marino , 46 So. 3d 1136, 1137 (Fla. 1st DCA 2010) (reversing modification order where "the evidence may have shown that increasing the father's time with the child [was] in the child's best interest, [but] there was no evidence of an unanticipated and substantial change in circumstances"). And the family court's alternative finding—that a substantial, unanticipated change had occurred by virtue of the passage of two years of time and the acrimony between the parents—is not, in itself, a sufficient basis to support such a determination. See Ring v. Ring , 834 So. 2d 216, 217 (Fla. 2d DCA 2002) ("The record does show that the parties in this case sadly failed to communicate between themselves and had continuing hostility. However, in Newsom v. Newsom , 759 So. 2d 718, 720 (Fla. 2d DCA 2000), this court stated that the 'fact that the parents cannot communicate and get along does not constitute a material change in circumstances to warrant modification of custody.' "); Sanchez v. Hernandez , 45 So. 3d 57, 62 (Fla. 4th DCA 2010) ("The father, however, needed to prove more than merely an acrimonious relationship and a lack of effective communication in order to show a substantial change."); Bazan v. Gambone , 924 So. 2d 952, 956 (Fla. 3d DCA 2006) ("Although the trial court expressed concern about the parties' bickering and the difficulty that such conduct creates for the minor child, this is insufficient to support modification. The parents' acrimonious relationship and lack of effective communication do not constitute a material change in circumstances to warrant modification of custody.").
Because the supplemental final judgment does far more than include S.J.I. into the plan but instead makes substantial modifications without the requisite findings, we are compelled to reverse the judgment below. See Romeo v. Romeo , 310 So. 3d 1064, 1065 (Fla. 2d DCA 2020) ("The failure to include [a finding that there had been a substantial, material, and unanticipated change in circumstances that warranted a modification to the parenting plan]—perhaps the most important determination a family court must make in a modification proceeding—will typically require reversal of a judgment that modifies a prior judgment's parenting plan."). On remand, the court shall enter a new judgment in accordance with this opinion either based upon the evidence previously presented, or after taking additional evidence should the court deem it appropriate. We find no merit in any of the Mother's remaining arguments on appeal.
The family court was correct when it observed that it need not issue specific findings under section 61.13(3). But under the facts of this case, given these circumstances, we would encourage the court to do so on remand. See Verrier v. Oaks , 235 So. 3d 1050, 1051 (Fla. 2d DCA 2018).
Affirmed in part; reversed in part; remanded with directions.
SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.