Opinion
Case No. 5D20-2081
07-30-2021
John Serhan ORAL, Appellant, v. Brooke Roberts ORAL, Appellee.
Leslie Ann Ferderigos, of Leslie Ann Law, P.A., Windermere, for Appellant. Michael J. Vaghaiwalla, of Greater Orlando Family Law, Winter Park, for Appellee.
Leslie Ann Ferderigos, of Leslie Ann Law, P.A., Windermere, for Appellant.
Michael J. Vaghaiwalla, of Greater Orlando Family Law, Winter Park, for Appellee.
PER CURIAM. John Serhan Oral ("Former Husband") appeals the trial court's order approving the magistrate's report and recommendation which found that a joint stipulation between he and Brooke Oral ("Former Wife") was in the best interests of the parties’ child and that Former Husband did not enter into it under duress.
The joint stipulation ("the Stipulation") contained an agreement between Former Husband and Former Wife, wherein he agreed to the termination of his parental rights to their child in exchange for the elimination of his past, current, and future child support obligations, pending adoption by Former Wife's new husband.
Although this appeal deals primarily with the Stipulation, some history is helpful. The parties dissolved their marriage in 2007, and Former Husband was awarded shared parental responsibility. Several years later, when the child was seven years old, he reported that Former Husband had shown him pornographic images and that he had seen his father, in addition to other adults, nude in the father's home. The child also alleged sexual abuse perpetrated by the Former Husband. Although he has consistently denied the sexual abuse allegations, Former Husband admitted to engaging in group sex activities. Regardless, the trial court entered an injunction permitting him only supervised visitation.
The parties subsequently entered into an agreement which provided that the injunction would be dissolved; Former Husband would attend anger management sessions; a counselor would be appointed for all the parties, including the child; and Former Husband would have no contact with the child. In 2015, the parties agreed that reunification therapy between Former Husband and the child could commence but that the no-contact order would remain until the child's therapist recommended otherwise.
In 2018, a guardian ad litem ("GAL") issued a 39-page report and recommendation. The GAL recommended that it was in the best interests of the child for Former Wife to have sole parental responsibility and that reunification therapy should wait until the child's individual trauma was sufficiently addressed by mental health professionals. The report also recommended that Former Husband have supervised visitation, as there was a concern that he would confront the child about the sexual abuse allegations in an effort to make the child recant.
It is undisputed that the child has profound mental health issues; he has been Baker Acted on at least three occasions. See § 394.467, Fla. Stat. (2020).
The record reflects that Former Husband is extremely contentious, resulting in his forcible removal from the courtroom on one occasion. Former Husband had sued some of the mental health professionals, and others refused to continue therapy due to his aggressive interruptions and threats. As a direct result of Former Husband's conduct, the child had been in no fewer than eight programs and had seen eight counselors. The trial court determined that those actions placed the child's mental health and very existence at "great risk."
Thereafter, the trial court entered an order abating a scheduled timesharing trial and mandated that both parties work with the appointed reunification specialist. Former Husband then moved to terminate his own parental rights, claiming that the trial court was not enforcing its previous mandate for both parties to work with the reunification specialist. Former Husband explained that he was doing so because it was in the best interests of the child for the "never-ending battle" to end. He requested that all matters be concluded, including custody, due and owing child support, and "malicious over-billing by the GAL." Former Husband also filed a lawsuit against the child, Former Wife, and her current husband for defamation, in part based upon social media posts accusing him of sexual abuse.
Unsurprisingly, because of the contentious nature of the case, the GAL's fees exceeded $15,000. One GAL withdrew after Former Husband filed a complaint with The Florida Bar.
On September 25, 2019, Former Husband executed the Stipulation, entitled "Joint Stipulation Resolving Case." The Stipulation provided that due to the extensive history and litigation of the case:
The Former Husband consents that his parental rights for [the child] shall be terminated by Court Order and shall not oppose a step-parent adoption action brought by the Former Wife and her current husband. Moreover, the Former Husband agrees to execute a consent and waiver for the step-parent adoption contemporaneously with this agreement.
In exchange, Former Husband's past and ongoing child support would be extinguished upon a final order terminating his rights, in addition to any past and future medical expenses of the child owed by Former Husband. Any amounts currently owed were to be abated until a final order was entered.
The Stipulation required Former Husband to execute a separate consent and waiver, which provided:
I relinquish all rights to, custody of, and time sharing with this minor child ... with full knowledge of the legal effect of the step-parent adoption and consent to the adoption of the MINOR child by the step-parent .... I understand my legal rights as a parent. I relinquish all sole rights to and custody of the minor child ... with full knowledge of the legal effect of this consent.
Before executing the Stipulation, Former Husband had negotiated its terms with Former Wife's counsel, and the Stipulation provided that both parties had ample time to review the agreement with legal counsel. The consent document provided Former Husband with three days to revoke his consent.
Two days after executing the Stipulation and consent, Former Husband filed a motion for supplemental modification of parental responsibility, seeking for the trial court to reinstate the original timesharing agreement. He also requested makeup visitation for the years he had been prohibited from seeing the child due to the no-contact order.
In January 2020, Former Husband, now represented by counsel, moved to vacate the Stipulation, articulating that he had entered into the Stipulation under duress, as prior to executing it, he was told he would be incarcerated for failing to pay his child support arrearages. He also argued that the Stipulation was not in the child's best interests, and he intended to revoke his consent through the previously referenced motion for modification of parental responsibility.
In response, Former Wife filed a motion to ratify the Stipulation, and both motions proceeded to hearings before the general magistrate. In his written closing argument, Former Husband raised the additional point that since there was no pending petition for step-parent adoption and the consent did not include the statutory 12-point bold-faced type with a recitation of rights, the Stipulation was in contravention of sections 63.082 and 63.087, Florida Statutes (2020).
No transcript of the hearings was provided.
The magistrate entered an exhaustive Report and Recommendation ("R&R") granting Former Wife's motion to ratify the Stipulation. Based on the testimony, the magistrate found no evidence of duress because Former Husband executed the Stipulation to be free from the financial burden of child support and to conclude the litigation. It also noted that Former Husband initiated the process to terminate his parental rights and then used the Stipulation to his advantage at a subsequent Department of Revenue proceeding. Additionally, the magistrate found that ratifying the Stipulation would be in the best interests of the child. Former Husband filed exceptions to the R&R, reiterating that the Stipulation was procedurally flawed as violative of sections 63.082 and 63.087.
After a hearing, the trial court denied the exceptions, noting that Former Husband had failed to provide transcripts of the hearings before the magistrate; consequently, it was unable to determine what transpired during the hearing, and thus, could not determine whether the magistrate's findings were supported by evidence or whether the law was misapplied. This appeal followed.
Former Husband argues that the magistrate erred in ratifying the Stipulation because doing so terminated his parental rights without following the various requirements mandated by chapter 63. "In Florida, there are only two means by which a parent's rights may be terminated: one is through adoption pursuant to Florida Statutes Chapter 63 and the other is through the strict procedures set forth in Florida Statutes Chapter 39, specifically sections 39.46 through 39.469." Casbar v. Dicanio, 666 So. 2d 1028, 1029 (Fla. 4th DCA 1996) (citing Fleming v. Brown, 581 So. 2d 202 (Fla. 5th DCA 1991) ).
As to the other issues raised by Former Husband, we affirm without discussion.
While Former Husband is correct that neither of those procedures were utilized prior to entering into the Stipulation, his argument nonetheless fails because Former Wife has taken no action to either formally terminate his parental rights or go forward with a step-parent adoption. Nor did the trial court enter an order terminating Former Husband's parental rights. His parental rights are still intact and will remain intact until an appropriate party successfully petitions for their termination. Similarly, the trial court's order does not preclude Former Wife from receiving child support or the Department of Revenue from contesting the Stipulation's enforceability. Ultimately, the Stipulation—irrespective of its validity—does nothing to bring this case to an end. The no-contact order remains in effect. Accordingly, we affirm the trial court's order approving the magistrate's R&R.
Notwithstanding our disposition, we note that to the extent the Stipulation sought to terminate Former Husband's parental rights in exchange for the elimination of his past due child support, it was void. See Fahey v. Fahey, 213 So. 3d 999, 1001 (Fla. 1st DCA 2016) ; Reed v. Blanshine, 78 So. 3d 54, 55 (Fla. 4th DCA 2012) ; Casbar, 666 So. 2d at 1029–30 ; State Dep't of Rev. v. Ortega, 682 So. 2d 589, 590 (Fla. 2d DCA 1996) ; Peregood v. Cosmides, 663 So. 2d 665, 669 (Fla. 5th DCA 1995) ; Fleming, 581 So. 2d at 203. Florida law is clear that parents may not contract away the rights of their children to support, as that right belongs to the child, not the parent. Ortega, 682 So. 2d at 590. Florida law is equally clear that agreements such as the Stipulation in this case are void and therefore unenforceable as contrary to public policy. See id.; see also Fahey, 213 So. 3d at 1001 ("[A]n agreement purporting to terminate parental rights is void as a matter of public policy." (citing Casbar, 666 So. 2d at 1029–30 )).
The Stipulation purported to extinguish all prior owed child support and abate any child support in the interim between the Stipulation and the ultimate termination of parental rights order and adoption. However, a judgment of adoption "only relieves that parent from the obligation to make future support payments once the child has been adopted." Kranz v. Kranz, 661 So. 2d 876, 876 (Fla. 3d DCA 1995) (citing § 63.172, Fla. Stat. (1991) ). Thus, the Stipulation sought to exchange Former Husband's parental rights for the derogation of the child's right to support that had accrued. See id. at 877. "Such an agreement runs into the teeth of Florida's strong public policy to provide support for children by their parents, and not to countenance circumvention of a parent's duty to support his or her children." Peregood, 663 So. 2d at 669 (emphasis omitted).
However, Former Husband never challenged the Stipulation on public policy grounds, either below or on appeal. While his initial brief claimed an infringement of his constitutional rights, it lacked any argument that the Stipulation was void as contrary to public policy; nor did he raise fundamental error as a basis for reversal. See Calabrese v. State, ––– So. 3d ––––, ––––, 46 Fla. L. Weekly D130, D132, 2021 WL 68319 (Fla. 5th DCA Jan. 8, 2021) (finding constitutional argument waived for appellate review where defendant did not object below or raise issue in initial brief; "this Court is not required to undertake a fundamental error analysis on [the defendant's] behalf." (citing Fike v. State, 4 So. 3d 734, 739 (Fla. 5th DCA 2009) ; Williams v. State, 845 So. 2d 987 (Fla. 1st DCA 2003) )). As a result, we decline to reverse the ratification of the Stipulation based upon grounds not raised by Former Husband.
Former Husband chose not to file a reply brief addressing these preservation of error arguments raised by Former Wife in her answer brief. We need not, and do not, opine on the question of whether these legal principles would apply if the trial court's order had, in fact, terminated Former Husband's parental rights pursuant to an agreement between the parties.
The parties’ child is now sixteen years old. When the child becomes an adult in the near future, he will make his own choice as to whether to have a relationship with his father. How Former Husband believes that filing a lawsuit against his son for defamation will encourage a relationship is unclear. While prolonging this litigation is not an ideal resolution, it is compelled by the legal principles outlined above.
AFFIRMED.
COHEN, WALLIS and TRAVER, JJ., concur.