Slaton v. Slaton , 195 So. 3d 1192 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LAURIE P. SLATON, )
)
Appellant, )
)
v. ) Case No. 2D15-5614
)
MICHAEL JAMES EDWARD SLATON, )
)
Appellee. )
)
Opinion filed July 15, 2016.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pinellas County;
Susan St. John, Judge.
Ingrid Anderson, Clearwater, for Appellant.
Thomas J. Donnelly, Clearwater, for
Appellee.
VILLANTI, Chief Judge.
Laurie P. Slaton (the Mother) appeals the trial court's nonfinal order that
temporarily transferred primary residential custody of her two children to Michael James
Edward Slaton (the Father).1 We affirm the trial court's order to the extent that it gives
temporary primary residential custody of the parties' children to the Father. However,
1
We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iii)(b).
because the order does not provide the Mother with any guidance as to the steps she
must take if she wishes to reestablish primary residential custody and because the
order does not include a timesharing schedule, we must reverse and remand for further
proceedings.
The parties' marriage was dissolved in 2012 by the courts of the state of
Washington. On the date of the dissolution judgment, the Mother was living in Florida
and the Father was deployed on active duty in Qatar with the U.S. Air Force. The
Washington dissolution judgment gave the Mother primary residential custody with the
Father having "visitation" by Skype or phone call.
Upon the Father's return to the United States, he was transferred to
Louisiana. Once there, he and the Mother reached an agreement concerning
timesharing, which allowed the children to spend time with the Father in Louisiana while
the Mother remained in Florida. The Mother and Father generally agreed on where and
how to exchange the children, and it appears that they shared the expenses of those
exchanges.
In the summer of 2015, the parties planned to have the children spend
most of June and July with the Father in Louisiana before returning to the Mother in
Florida in August. However, while the children were with the Father, the Mother was
arrested for aggravated battery with a weapon on her paramour, and the paramour was
arrested for battery on the Mother as well. These arrests brought to light the fact that
there had been prior domestic violence between the Mother and her paramour, who had
lived off and on with the Mother and the children, and that the children had witnessed
some of this domestic violence. At that point, the Father refused to return the children
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to the Mother, which prompted her to begin proceedings in the Florida courts to
domesticate and enforce the Washington dissolution judgment. The Father responded
with a request for temporary residential custody, which the trial court granted after an
evidentiary hearing. However, the trial court's order did not provide a timesharing
schedule for the Mother and the children, and it did not delineate the actions required of
the Mother if she wished to regain primary residential custody. The Mother argues that
all of these rulings were erroneous. We agree in part.
As to the temporary modification of primary residential custody, we readily
affirm the trial court's ruling. A trial court may enter an order temporarily modifying child
custody—even without notice to the opposing party—if there is evidence of a bona fide
emergency situation. See, e.g., Smith v. Crider, 932 So. 2d 393, 398 (Fla. 2d DCA
2006). Further, a trial court may modify parental responsibility and timesharing in the
absence of an emergency if there is a "factual basis sufficient to show that conditions
have become materially altered since the entry of the previous decree." Wade v.
Hirschman, 903 So. 2d 928, 933 (Fla. 2005) (quoting Frazier v. Frazier, 147 So. 464,
467 (Fla. 1933)).
Here, the trial court was faced with evidence that the Mother had been
arrested and charged with felony domestic violence battery with a weapon on her
paramour and evidence of the Mother's request that she be permitted continued contact
with her paramour despite his arrest for battery on her. Further, there was evidence
that Florida's Department of Children & Families ("DCF") had initiated an investigation of
the Mother's home based on these domestic violence arrests. In addition, there was
evidence that the Mother and her paramour had engaged in prior domestic violence in
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front of the children and that a prior DCF investigation had been terminated based on
the Mother's assurances that she had severed her relationship with this same
paramour. This evidence was sufficient to support the trial court's finding that an
emergency situation existed and its conclusion that modification of the Mother's custody
of and visitation with the children was necessary, at least until such time as the Mother's
charges were resolved and the DCF investigation was concluded. In addition, this
evidence was sufficient to support the trial court's finding that this situation constituted
an unanticipated, substantial, and material change in circumstances. And, taken
together, this evidence supports the conclusion that it was in the children's best
interests to change primary residential custody to the Father until such time as the court
could be reasonably assured that the Mother would be available to parent the children
without domestic violence occurring in the home. Therefore, we affirm the portion of the
trial court's ruling that granted the Father's emergency motion to temporarily modify
primary residential custody.
However, on this same record, we must agree with the Mother that the
trial court erred by unqualifiedly transferring primary residential custody to the Father
without also specifying the steps necessary for the Mother to regain residential custody.
As this court has repeatedly held, a trial court may not modify primary residential
custody based on a parent's behavior without also identifying the steps that the parent
must take to restore the original custody arrangement. See Perez v. Fay, 160 So. 3d
459, 466 (Fla. 2d DCA 2015); Grigsby v. Grigsby, 39 So. 3d 453, 457 (Fla. 2d DCA
2010). As we stated in both cases,
when the court exercises its discretion to reduce or eliminate
time-sharing with a parent's children,
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the court must give the parent the key to
reconnecting with his or her children. An order
that does not set forth the specific steps a
parent must take to reestablish time-sharing,
thus depriving the parent of that key, is
deficient because it prevents the parent from
knowing what is expected and prevents any
successor judge from monitoring the parent's
progress.
We also held that the court had the obligation to identify
"concrete steps" in the final judgment that the parent must
take to reestablish time-sharing.
Perez, 160 So. 3d at 466-67 (quoting Grigsby, 39 So. 3d at 457) (citation omitted). In
both cases, we were compelled to reverse and remand for further proceedings because
of the trial courts' failures to identify the necessary steps for the mothers to regain
custody and timesharing. See Perez, 160 So. 3d at 467; Grigsby, 39 So. 3d at 457.
Here, as in both Perez and Grigsby, the trial court's order wholly fails to
set forth the steps the Mother must take to reestablish primary residential custody of the
children. While the trial court made various references during the hearing to the
Mother's needing counseling to address certain issues, the trial court did not incorporate
any of those references into its order or give the Mother any instructions as to what she
needed to do to prove to the court that she had addressed them. This omission
requires us to reverse and remand for further proceedings.
Moreover, the temporary order is also deficient because it does not
incorporate any timesharing plan whatsoever for the Mother nor does it contain any
support for the proposition that zero timesharing for the Mother is the appropriate result.
As this court has held, "a parent has a constitutionally protected ' "inherent right" to a
meaningful relationship with his [or her] children.' " Perez, 160 So. 3d at 465 (alteration
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in original) (quoting Schutz v. Schutz, 581 So. 2d 1290, 1293 (Fla. 1991)). Therefore,
"time-sharing privileges should not be denied to either parent as long as the parent
conducts himself or herself, while in the presence of the children, in a manner which will
not adversely affect the children." Id. (citing Yandell v. Yandell, 39 So. 2d 554, 555 (Fla.
1949)). The complete cessation of any and all timesharing is a harsh result that is
rarely proper.
In fact, the order modifying primary residential custody from the Mother to
the Father states that it is incorporating a timesharing plan, but it does not actually
include, attach, or incorporate a timesharing schedule of any kind. Thus, the Mother
has been left with no timesharing at all, or, at best, timesharing at the sole discretion of
the Father through what appears to be an inadvertent omission by the trial court. Under
these circumstances, the omission of any timesharing plan constitutes reversible error
which must be corrected on remand.
Affirmed in part, reversed in part, and remanded for further proceedings.
KHOUZAM and SALARIO, JJ., Concur.
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