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concluding trial court departed from the essential requirements of the law by ordering relief not requested by the parties in the pleadings or at the hearing
Summary of this case from Payne v. KochOpinion
No. 1D19-854
01-21-2020
Cari Elizabeth THOMPSON, Former Wife, Appellant, v. Kurt Anthony MELANGE, Former Husband, Appellee.
Corrine A. Bylund of Bylund Law, PLLC, Jacksonville Beach, for Appellant. Kurt A. Melange, pro se, Appellee.
Corrine A. Bylund of Bylund Law, PLLC, Jacksonville Beach, for Appellant.
Kurt A. Melange, pro se, Appellee.
M.K. Thomas, J.
The former wife appeals an order from the trial court finding her in contempt, awarding the former husband makeup timesharing, and setting forth a punishment schedule if the minor child refuses to attend timesharing with the former husband. The former wife claims the order is appealable as a nonfinal order under Florida Rule of Appellate Procedure 9.130, but in the event this Court finds otherwise, she requests consideration of the appeal as a petition for writ of certiorari. Because the order is a nonfinal order, and not appealable under rule 9.130, we treat the appeal as a petition for writ of certiorari and grant the petition in part.
I.
The parties' marriage was dissolved in 2010. After the Final Judgment was entered, litigation ensued with a Modified Final Judgment being entered on September 1, 2017, after the former wife requested suspension of timesharing. At issue in the current litigation is the interruption of timesharing between the former husband and the minor child beginning in January 2018.
At the time of the hearing, the minor child was twelve years of age.
In the modified final judgment, the former wife was awarded majority timesharing, with the minor child spending every other weekend and one day per week with the former husband. The former wife was also given decision making authority over non-emergency healthcare. Several months before the disruption of timesharing with the former husband, the former wife placed the minor child in individual counseling with Dr. Carper, an out-of-network provider. After the minor child began refusing to attend timesharing, the former husband and the minor child attended three sessions of reunification therapy with Ms. Giacobbe, before the former wife terminated the sessions. The trial court later ordered the former wife to contact Ms. Giacobbe and resume therapy.
On July 16, 2018, the former husband filed a Verified Petition for Temporary Emergency and Ongoing Majority Timesharing and Other Relief. The former husband alleged that the termination of timesharing resulted from actions of the former wife. He requested temporary and ongoing majority timesharing, appointment of Ms. Giacobbe to continue reunification therapy, and supervised visitation with the former wife. The former husband also requested the former wife to be found in contempt and punished accordingly. Several weeks later, the former husband filed a Motion for Immediate Timesharing with Minor Child and Other Relief. He requested immediate temporary timesharing and makeup timesharing. He reiterated arguments expressed in his prior motion but added an allegation of parental alienation.
After a hearing on the motions, the trial court entered an order finding the former wife in contempt of court for multiple violations of its orders. Specifically, the trial court found the former wife unilaterally terminated timesharing after previously being warned about her attempts to "micromanage" the former husband's activities during timesharing. The trial court concluded that the minor child was "in control," and the former wife was, "at least, complicit in the minor child's control and decision making, if not encouraging." The former wife was found in contempt for failing to acquire the former husband's consent before engaging the services of an out-of-network provider–Dr. Carper, and failing to timely schedule reunification therapy with Ms. Giacobbe. The trial court reserved jurisdiction on the issue of scheduling the make-up timesharing and ordered immediate overnight timesharing pursuant to the modified final judgment.
Although not argued at the hearing or requested by either party, the trial court's order set forth a punishment schedule which the former wife was to impose should the minor child refuse to participate in timesharing:
Removal of access to all electronics: for one week, to include cell phone and smartphones, computers of any kind (desktop, portable, pads, etc.), television and video games, and any other device of similar nature. Upon a second refusal, the Former Wife shall insure the child has no contact outside of school and extracurricular activities with the child's friends for one week, and shall not participate in activities with friends that week (except for school and extracurricular activities). For a third offense, all extracurricular activities of any kind in which the child is participating shall be immediately terminated, not to be recommenced without an order from this Court.
The trial court did not rule on the former husband's request for modification, directing the parties to schedule a final hearing on the matter. The trial court also withheld ruling on the demand for attorney's fees until after modification was determined.
II.
The former wife argues the order on appeal is a nonfinal appealable order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b. We agree that the order being challenged is nonfinal as it does not fully resolve either of the former husband's motions. The trial court reserved jurisdiction to determine how many overnights had been missed and to develop a schedule for make-up, on modification of timesharing, and on the demand for attorney's fees.
A nonfinal order is not appealable unless it triggers a provision of rule 9.130. Rule 9.130(a)(3)(C)(iii) b allows for the appeal of nonfinal orders in family law matters that determine "the rights or obligations of a party regarding child custody or time-sharing under a parenting plan." A "child custody proceeding" is defined by statute as "a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue." § 61.503(4), Fla. Stat. "Child custody determination" is defined as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child." § 61.503(3), Fla. Stat.
Generally, a postdissolution order that simply addresses matters of visitation is not appealable under this rule; the order must grant or terminate visitation rights or otherwise determine a party's right to immediate child custody. See Goslin v. Preisser , 148 So. 3d 869, 870 (Fla. 1st DCA 2014) ("We do not have jurisdiction to review the order by appeal because the order did not determine the parties' timesharing rights."); Pool v. Bunger , 43 So. 3d 837, 838 (Fla. 1st DCA 2010) (The order is not an appealable nonfinal order under rule 9.130(a)(3)(C)(iii) because, although it addresses matters concerning visitation, the order does not terminate Appellant's visitation rights or otherwise determine "the right to immediate ... child custody"); Hickey v. Burlinson , 33 So. 3d 827, 829 (Fla. 5th DCA 2010) (holding that an order denying a motion to temporarily halt visitation was an appealable non final order because it was an order "regarding visitation").
Here, the order does not grant or terminate visitation rights nor determine the former husband's right to immediate child custody. Rather, the trial court's rulings are based on interpretation of the current parenting plan and make no changes to the current visitation schedule. Thus, rule 9.130 does not provide this Court jurisdiction to hear the appeal of this nonfinal order. As such, this Court will determine whether the former wife is entitled to relief under a petition for writ of certiorari.
Petition for Writ of Certiorari
"To obtain certiorari review of a trial court's order, the petitioner must demonstrate that the order is a departure ‘from the essential requirements of law thereby causing irreparable injury which cannot be remedied on appeal following final judgment.’ " Heartland Express, Inc., of Iowa v. Torres , 90 So. 3d 365, 367 (Fla. 1st DCA 2012) (quoting Avante Villa at Jacksonville Beach, Inc. v. Breidert , 958 So. 2d 1031, 1032 (Fla. 1st DCA 2007) ); "A ruling constitutes a departure from the essential requirements of law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice." Clay Cty. v. Kendale Land Dev. Inc. , 969 So. 2d 1177 (Fla. 1st DCA 2007) (internal quotations omitted).
The former wife claims the trial court erred in not considering the best interest of the child when awarding the former husband makeup timesharing. However, the trial court did not determine how many days are owed or when the makeup timesharing will occur but reserved jurisdiction on these issues. Thus, the appeal is premature, and the former wife has not suffered an injury that cannot be remedied on appeal. Accordingly, relief for this issue on appeal is improper under a petition for writ of certiorari.
We recognize that when the trial court finalizes its order on makeup timesharing, determining the amount of timesharing owed and when the makeup timesharing will occur, it is required to consider the best interest of the child. See § 61.13(4)(c), Fla. Stat.; Cheek v. Hesik , 73 So. 3d 340, 343 (Fla. 1st DCA 2011) (holding that a trial court is only required to find "that the manner in which the makeup time-sharing was imposed was in the best interest of the child").
The former wife also challenges the trial court's order finding her in contempt. This Court has previously held that a trial court's order finding a party in civil contempt is reviewable by common law writ of certiorari under Florida Rule of Appellate Procedure 9.030(b)(2)(A). See Sears v. Sears , 617 So. 2d 807, 808 n.1 (Fla. 1st DCA 1993). However, we find no entitlement to relief here because the trial court did not depart from the essential requirements of law. The former wife violated the trial court's orders when she unilaterally terminated timesharing, sought counseling for the minor child with an out-of-network provider and without first obtaining the former husband's consent, and ignored instructions to timely contact the reunification therapist. The trial court's prior orders clearly set forth the parenting plan and perimeters. See St. Onge v. Carriero , 252 So. 3d 1280, 1281 (Fla. 1st DCA 2018) ("To support a contempt finding, the violated order must clearly and definitely make the party aware of the court's command."). Therefore, we deny the requested relief related to the finding of contempt.
Lastly, the former wife challenges the trial court's order requiring her to impose and enforce a punishment schedule on the minor child if the minor child refuses to participate in timesharing with the father. As set forth above, to be entitled to certiorari relief, a party must demonstrate "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc. , 889 So. 2d 812, 822 (Fla. 2004). The second and third elements are jurisdictional in nature. Russell v. Pasik , 178 So. 3d 55, 58 (Fla. 2d DCA 2015) (citing Trucap Grantor Trust 2010-1 v. Pelt , 84 So. 3d 369, 371 (Fla. 2d DCA 2012) ). Interference with a party's constitutional rights "would ipso facto result in an injury that cannot be corrected on postjudgment appeal." Id. (citing Citizens Prop. Ins. Corp. v. San Perdido Ass'n , 104 So. 3d 344, 354 (Fla. 2012) ).
The former wife claims the trial court's order constitutes a departure from the essential requirements of law because it imposes a punishment schedule that violates her constitutional rights and the damage cannot be corrected on appeal. In briefing on the merits, the former wife argues solely that the trial court departed from the essential requirements of law by granting relief not requested by the parties. We agree. Generally, courts are prohibited from granting relief not requested in the pleadings. Perez v. Fay , 160 So. 3d 459, 464 (Fla. 2d DCA 2015) (citing Worthington v. Worthington , 123 So. 3d 1189, 1190-91 (Fla. 2d DCA 2013) ). Here, neither party requested in pleadings or at hearing that a punishment schedule be implemented. The schedule made its first appearance in the order on appeal. Thus, that portion of the order establishing a punishment schedule is quashed. See Id. at 464-65 (holding that the trial court erred in ordering the mother to speak only English to her daughter where the father did not ask for this restriction, and the issue was not tried by consent).
III.
Because this Court lacks jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b, the former wife's appeal is treated as a petition for writ of certiorari. The petition for writ of certiorari is granted in part because the trial court departed from the essential requirements of law when it ordered a punishment schedule to be imposed if the minor child refused to attend timesharing with the former husband–relief the parties never requested. For reasons set forth above, the petition is denied in all other respects. The matter is remanded for further proceedings consistent with this opinion.
GRANTED in part, DENIED in part, and REMANDED .
Wolf and Makar, JJ., concur.