Family Law Case Law Updates-opinions filed May 8, 2013

DISSOLUTION OF MARRIAGE-CHILD CUSTODY-TEMPORARY MODIFICATION
In Weissman v. Weissman, 38 FLW D1003a (Fla. 2d DCA) opinion filed May 8, 2013, the Former Husband (FH) sought certiorari review of an order entered post judgment giving the Former wife (FW) temporary sole responsibility over the parties’ children’s health care, including mental health care. The FH, a medical doctor, has a relationship with a woman who has apparently created significant parenting issues for this divorced couple. While a petition and counter petition for modification of the final judgment have been pending, the trial court entered temporary orders that restricted the FH’s participation in many of the parenting decisions and limited his contact with his children. Noting that the Order challenged was procedurally uncommon, the DCA declined to hold that the trial court departed from the essential requirements of law in entering it.
However, two aspects of the order were of concern. 1) The order gave the FW “temporary sole parental responsibility over the parties’ three minor children’s health care, including mental health care.” Based on a prior order, See Weissman v. Weissman, 102 So. 3d 718 (Fla. 2d DCA 2012), appealed for cert review, the DCA understood the trial court’s decision to exclude the FH from decisions involving the children’s mental health care. However, as a fully trained MD, the DCA found nothing in the record to support excluding the FH from other medical decisions. 2) the order was intended to be temporary, but it provided no guidance as to when these significant restrictions on parental rights would end or what the FH had to do in order to have them removed. The order simply stated, “[u]ntil further order of the court.” Both are error
In this procedural context, these errors were not matters that could be addressed in any subsequent direct appeal, so cert. was proper. The first error impacts the FH’s fundamental interest in parenting a child by restricting his participation in medical decisions. The second error raises serious due process concerns. Accordingly, the DCA denied relief except to the extent that the trial court should modify the provision barring the FH from participating in medical decisions affecting his children and further explain the timing and circumstances of the future order intending to replace the temporary order. Petition for cert granted in part and denied in part.
INJUNCTIONS-DOMESTIC VIOLENCE-DISSOLUTION OF INJUNCTION
In Baker v. Baker, 38 FLW D1007a (Fla. 2d DCA) opinion filed May 8, 2013, the FH sought to dissolve an injunction based on a material change in circumstances, i.e., he was incarcerated for 30 years and testified that the injunction was stopping him from transferring closer to home due to his custody level being unable to be lowered because of the injunction. The trial court denied and the DCA found that imprisonment for 30 years on grand theft and organized fraud charges with an expected release date on 2035, something that had changed since entry of the final injunction, and it found that he had demonstrated that the scenario underlying the injunction no longer existed such that the continuation of the injunction would serve no valid purpose. Therefore the denial was reversed.
INJUNCTIONS-REPEAT VIOLENCE
In Goudy v. Duquette, 38 FLW D1009 (Fla. 2d DCA) opinion filed May 8, 2013, the DCA found that the Appellant’s phone call to Petitioner, who was his daughter’s dance team coach to advise he was no longer willing to accept her decision’s regarding his daughter’s participation on the dance team was not an act of harassment because the telephone call would not have caused a reasonable person substantial emotional distress and it was made for a legitimate purpose of addressing daughter’s participation in a dance team competition. Although the trial court correctly determined that a face-to-face incident in a high school parking lot was a single act of stalking given petitioner’s testimony that he willfully and maliciously followed her out that evening, a single incident composed of multiple actions does not constitute, “repeat violence: under section 784.046. The Appellant’s appearance at dance team competition, team’s hotel and a nearby restaurant, although viewed as following served a legitimate purpose as he was transporting his daughter to these events and there was testimony that he did not speak to the petitioner at any of the locations.
DISSOLUTION OF MARRIGE-ALIMONY-CHILD SUPPORT-SETTLEMENT AGREEMENT
In Pomerance v. Pomerance, 38 FLW D1024 (Fla. 4th DCA) opinion filed May 8, 2013, the former Husband (FH) in a pro ce appeal challenged a final judgment incorporating the parties marital settlement agreement (MSA). He raised 4 issues on appeal. The DCA found no error and affirmed.
The Former wife (FW) filed a petition for Dissolution of Marriage seeking child support and alimony. The parties went to mediation, but impassed. They subsequently executed an MSA. The FW then moved for a Final Judgment of Dissolution of Marriage, an order directing compliance with the MSA; and attorney fees. The FH filed a motion in opposition, arguing he would continue to pay child support, would not be able to pay the alimony because the FW misrepresented her financial condition and he had experienced a change in circumstances. The FH also moved to compel the production of several of the FW’s financial documents.
The FW moved to reschedule or cancel the status conference. The trial court issued an Order stating that the hearing on Wife’s Motion for Final Judgment, Compliance and attorney fees would proceed. If the court determined that the case could not be finalized, the hearing would proceed as a temporary relief hearing. The status conference shall be cancelled.
Thereafter, the trial court entered a final judgment of dissolution of marriage, approving the MSA and incorporating it by reference. The trial court found the FH had not complied with the term of the MSA and determined the arrearage of child support and alimony not paid. At the end of the Final Judgment was a handwritten note instructing the FH to make any arguments concerning a substantial change in circumstances through an “appropriate petition to modify.”
The FH filed a motion to modify Court Ordered Alimony and Attorney Fees and for a rehearing. He argued he had lost his job, had only $500.00 in assets and was unable to pay. The trial court denied treating it as a Motion for Rehearing.
The FH filed another Petition for Modification arguing a substantial change in income rendered him unable to pay the amounts ordered. No order was contained in the record regarding this petition.
This appeal followed. The FH made 4 arguments The trial court erred by ordering an evidentiary hearing without first finding the case was ready for trial; 2) the trial court abused its discretion in denying his petition to Modify; 3) the trial court improperly neglected to rule on his motion to compel; and 4)the trial court abused its discretion by improperly setting forth a lump sum of arrearages in its final judgment without stating the exact amount he owed in past due child support and what amount he owed in past due alimony. (and this is why people need attorneys)
Alimony and child support awards are reviewed for an abuse of discretion. Chovan v. Chovan, 90 So. 3d 898,900 (Fla. 4th DCA 2012).
Pursuant to the MSA, the trial court’s order accurately reflected the child support and alimony sums ordered to be deducted on each pay period under the MSA. The Final Judgment was affirmed noting this would not preclude the FH from proceeding on his pending Petition for Modification, which has not been considered by the trial court at the time he filed this pro ce appeal of the final Judgment.
CONTEMPT-DISSOLUTION OF MARRIAGE-CHILD CUSTODY
In Nunes v. Nunes, 38 FLW D1027 (Fla. 4th DCA) opinion filed May 8, 2013, the Former Wife (FW) appeals an order adjudicating her in civil contempt for willful failure to follow a court ordered time sharing plan. She argued she has insufficient notice of the contempt hearing. The appellant did not preserve her objection as to the issue of notice.
The parties were married and had a child in June 2010. A final judgment of dissolution of marriage was entered incorporating a marital settlement agreement (MSA). The MSA permitted the Mother to move out of the State of Florida; and if she did, the Father’s time sharing shall consist of Spring Break and four consecutive weeks each summer. The Mother relocated to Texas with the child.
The FH filed a motion for Contempt on July 10, 2012 alleging that he sent an email to FW with the dates for his 4 consecutive weeks during the summer of 2012 and that FW failed to make the child available for summer timesharing. He asked the court to find her in willful contempt, makeup time sharing and attorney fees. On august 13, 2012, FH’s attorney sent a Notice of hearing to the FW in Texas advising the hearing would take place on August 28th. The first hearing was cancelled due to Tropical Storm Isaac. On August 31, the FH’s attorney sent a second notice of hearing advising of the rescheduled date of September `2. The FW testified she did not get the notice until September 6 and she sent an email to the FH’s attorney on September 11 advising she was unable to attend the hearing. On September 12, the court held the contempt hearing. The FW did not appear. No transcript was provided to the DCA. On September 21, the Court entered an Order finding the FW in civil contempt of court.
“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” Harris v. Hampton, 70 So 3d 747,748 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005).
The FW appealed on 3 grounds: 1) she lacked sufficient notice of the contempt hearing; 2) the trial court failed to make sufficient findings regarding her willful noncompliance with the time-sharing plan; 3) the trial court failed to consider the best-interests of the child in setting the dates for makeup time sharing.
The record indicates the second notice was delivered to the FW’s home 12 days before the hearing. The FW argued otherwise, but failed to preserve any objection at the hearing. “ In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved” Sunset Harbour Condo Assn. v. Robbins, 914 So 2d 925,928 (Fla.2005)(quoting Tillman v. State, 471 So. 2d 32, 35 Fla. 1985). The record included no pretrial motion for continuance, motion for rehearing, motion for relief from judgment, or even a pro ce note from the FW to the trial Judge alleging she had insufficient notice of the hearing. Therefore it was not preserved; and the DCA declined to review it further.
As to her second issue on appeal, the DCA found the time sharing provision clear and leaving no doubt as to the FW’s responsibilities. The trial court’s contempt order sufficiently detailed the FW’s non-compliance with the time sharing provision of the final Judgment. The court noted that even if the written order failed to adequately describe the mother’s non-compliance, they would affirm because the FW provided no transcript of the hearing. The DCA will not presume that the trail court committed reversible error during the course of a hearing that they cannot review.
As to the last issue, the DCA stated, “While we agree with the Mother and the First district that “[t]he best interests of the child are always the paramount concern in child custody and time-sharing matters,”id., we disagree with the mother’s conclusion that the written contempt order is deficient on its face because it does not use the words “best interests of the child,” We hold that while the statute directs the trial court to consider the best interests of the child in ordering make-up time sharing, nothing in the statute compels the trial court to explicitly include this in the written order. Section 61.13(4)( c ) .
In the absence of a transcript of the hearing, we cannot find that the trial court failed to consider the best interests of the child. The better practice is for the trial court to thoroughly address the relevant considerations in its written order, but failure to include and discuss these issues in the written order foes not, in and of itself, compel reversal. Affirmed remaining issues without comment.