Opinion
1D21-1826
11-02-2022
Misty Leigh Stabler, Appellant/Cross-Appellee, v. George Wreath Spicer, Appellee, and Amy Nicole Spicer, Appellee/Cross-Appellant.
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant/Cross-Appellee. Carrington Madison Mead, Jacksonville, for Appellee/Cross-Appellant Amy Nicole Spicer.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Santa Rosa County. Ross M. Goodman, Judge.
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant/Cross-Appellee.
Carrington Madison Mead, Jacksonville, for Appellee/Cross-Appellant Amy Nicole Spicer.
PER CURIAM
Misty Leigh Stabler and Amy Nicole Spicer lived together in a committed relationship and agreed to have a child whereby Spicer's brother impregnated Stabler, resulting in the birth of C.S. in 2010. Over the next few years, the couple's relationship was rocky, but they agreed to have another child; this time Stabler was impregnated by a mutual friend of the couple, and O.S. was born in 2015. The couple again experienced relationship difficulties that led to litigation regarding the custody and visitation of the two children, which resulted in a mediation agreement as to just one of the children.
At issue in this appeal is whether the trial court erred by enforcing the mediation agreement. Stabler contends the mediated visitation rights are unenforceable under the state constitution's privacy clause; even if they are enforceable, she points out that it was error to extend the mediation agreement to both children when only one was its subject. In what is labeled a cross-appeal, Spicer does not directly address Stabler's contentions and, instead, argues that Stabler, by her "actions and deeds," has "waived her constitutional rights" thereby making the mediation agreement enforceable. We affirm on the cross-appeal and turn to the merits of the visitation issues.
We begin by noting that the trial court's thoughtful and comprehensive nine-page order showed compassion for the children, imploring Stabler and Spicer to "put the children's interests above their own." That said, the dispositive question in this case-as the trial court recognized-is a legal one: does Spicer-as a nonparent-have a legally enforceable right to have visitation rights with either of the children under Florida law? The answer is no.
In Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006), this Court held that a same sex partner who was not the biological mother-but had been a de facto parent who supported and participated in a child's upbringing pursuant to a written coparenting agreement-had no legally enforceable visitation rights with the child. Id. at 671. The reason is found in the state constitution's privacy clause, which creates "the right to be let alone and free from governmental intrusion into [a] person's private life." Art. I, § 23, Fla. Const. This provision has been recognized as protecting the constitutional right of parents to raise their child without state interference absent the most compelling of circumstances (such as child abuse). Wakeman, 921 So.2d at 671-72. Nonparents are not within the ambit of this constitutional right; written agreements granting visitation to nonparents are unenforceable in Florida. Id.; see also Springer v. Springer, 277 So.3d 727, 728 (Fla. 2d DCA 2019) ("[A] coparenting agreement between a biological parent and a nonparent is not enforceable under Florida Law."); Russell v. Pasik, 178 So.3d 55, 59 (Fla. 2d DCA 2015) (“[T]he law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents.”); see also De Los Milagros Castellat v. Pereira, 225 So.3d 368, 372 (Fla. 3d DCA 2017) (Logue, J., concurring) (noting that “the Florida Supreme Court expressly approved Wakeman's holding that the lesbian partner who was the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother, even though the couple clearly intended to raise the children together”).
The trial court concluded that Stabler's actions-such as allowing continued contact with the children and accepting child support and housing from Spicer-were such that Stabler was foreclosed from refusing to abide by the visitation rights set forth in the mediation agreement. This conclusion is inconsistent with applicable caselaw, such as Wakeman. Spicer lacks a legally enforceable visitation right notwithstanding the mediation agreement. Spicer is not married to Stabler, is not a "parent" of the children under Florida law (even though her name is part of the children's hyphenated last names) and has not adopted either child (she consulted an attorney but never pursued adoption). Though it is admirable when nonparents promise to assist with the financial and emotional upbringing of a child, which is an enormous task, the law does not thereby allow visitation rights when the underlying relationship between the nonparent and the biological mother unravels.
Finally, the trial court erred by extending the mediation agreement to both children when it only applied to one. Spicer lacks a legally enforceable right of visitation with either child. As such, the trial court's order as it relates to enforcement of visitation rights with both children is REVERSED.
LEWIS, MAKAR, and BILBREY, JJ., concur.