Harrell v. Friend

388 So.3d 1086

Justin HARRELL, Appellant,

v.Heather FRIEND, f/k/a Heather Harrell, Appellee.

No. 1D2023-1074

District Court of Appeal of Florida, First District.

May 8, 2024

Rehearing Denied July 3, 2024

On appeal from the Circuit Court for Leon County. Barbara K. Hobbs, Judge.

Jennifer LaVia, Tallahassee, for Appellant.

Linda A. Bailey, Law Office of Linda A. Bailey, P.A., Tallahassee, for Appellee.

B.L. Thomas, J.

The former husband appeals the circuit court’s order dismissing his amended supplemental petition to modify parenting plan for failure to state a cause of action. Because we find that the former husband alleged facts that could constitute an unanticipated, substantial, and material change in circumstances, as a matter of law, we reverse the circuit court’s order.

The parties dissolved their marriage in 2014, and the final judgment provided that the former wife would have primary timesharing, but that the former husband could have visitation, provided that he was not under the influence of alcohol during the visitation. The final judgment required the former husband’s visitation be supervised "due to [his] active alcohol abuse and erratic behavior," finding that these conditions were "necessary for the protection of the children." The former wife was allowed to request breathalyzer tests of the former husband during his parenting time. The final judgment named five individuals that would be acceptable supervisors for visitation.

In 2022, the former husband filed an amended supplemental petition to modify parenting plan, seeking 50/50 unsupervised timesharing and a modification of child support in accordance with the equal timesharing arrangement sought. The amended petition asserted that the final judgment had contemplated that the former husband would continue to struggle with alcohol addiction and provided no path to unsupervised visitation if he recovered. As the unanticipated, substantial, and material change in circumstances, the amended petition alleged that the former husband is no longer actively abusing alcohol and behaving erratically, that he has been diagnosed with bipolar disorder and learned that his previous abuse of alcohol was a form of self-medication for the disorder, and that he now avoids alcohol abuse by using his appropriately prescribed medication. The amended petition also noted that the former husband had never tested positive for alcohol during his parenting time, despite multiple tests done at the former wife’s request. The amended petition also asserted that because the children are now older (ages 12 and 9 at the time of the amended petition’s filing versus 5 and 1 at the time of the dissolution of marriage), they are not in as much need of supervised timesharing. Finally, the amended petition stated that the acceptable supervisors listed in the final judgment are no longer able to supervise for various reasons.

The former wife filed a motion to dismiss the amended petition. The circuit court granted the motion and dismissed the amended petition for failure to state a cause of action—specifically, failure to allege facts that could, as a matter of law, constitute a substantial, material, and unanticipated change in circumstances to allow for modification of the parenting plan. The circuit court’s order cites several Florida court decisions holding that improved life circumstances—including improved mental health after counseling and medication, overcoming alcohol abuse, and an improved ability to provide a stable home for children—do not constitute a substantial and material change in circumstances. The court also found that the aging and increased maturity of the children in the eight years between the petition for dissolution and the petition for modification cannot be an unanticipated, substantial, and material change in circumstances. If it could, all parenting plans would be subject to modification. The circuit court also found that the unwillingness or inability to supervise of the acceptable supervisors named in the final judgment was not an unanticipated, substantial, and material change, either because the final judgment clearly established that the parties could utilize a professional supervisor or agree to other individuals. This appeal follows.

Section 61.13(3), Florida Statutes, describes the showing a party must make in seeking to modify a parenting plan:

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interests of the child must be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial and material change in circumstances and a determination that the modification is in the best interests of the child.

(emphasis added). The use of the term "showing" indicates the need for evidence and an opportunity to be heard.

[1, 2] This Court has explained that [m]odification proceedings are "entirely different" than initial custody decisions, Cooper v. Gress, 854 So. 2d 262, 267 (Fla. 1st DCA 2003), and courts have considerably less discretion in considering them "because [they] disrupt children’s lives." Ragle v. Ragle, 82 So. 3d 109, 113 (Fla. 1st DCA 2011). Parties seeking to modify a parenting plan must show "a substantial, material, and unanticipated change in circumstances and … that the modification is in the best interests of the child." § 61.13(3), Fla. Stat.; see also Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018). "This required proof imposes an ‘extraordinary burden’ on the party seeking modification." Hutchinson v. Hutchinson, 287 So. 3d 695, 696 (Fla. 1st DCA 2019) (quoting Ragle, 82 So. 3d at 111).

Bryan v. Wheels, 295 So. 3d 889, 890 (Fla. 1st DCA 2020); see also Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 467 (1933) ("Where a final decree has already once definitely fixed the custody of a minor child as between its divorced parents, the effect of a petition filed to modify the decree is to raise an issue as to whether or not sufficient cause exists at the time of filing the petition and subsequently to require a change in the provisions of the earlier decree respecting the child’s custody. The trial of such an issue involves a determination of the proposition, whether or not there is any factual basis sufficient to show that conditions have become materially altered since the entry of the previous decree.").

[3, 4] The instant case differs from the typical appeal from a circuit court order denying modification, because in this case the court dismissed the amended petition without an evidentiary hearing.¹ The circuit court found that the facts alleged in the amended petition, even if true, could never, as a matter of law, constitute a substantial and material change in circumstances sufficient to allow for modification.

Because the circuit court’s ruling was based on a conclusion of law, we apply a de novo standard of review. See Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524, 526 (Fla. 1st DCA 1997) ("Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.").

[5] Family law is a very fact-dependent area of law. "[P]roceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law." Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997); see also § 61.001, Fla. Stat. (stating that Chapter 61, Florida Statutes, "shall be liberally construed and applied" and that its purposes include "to safeguard meaningful family relationships" and "[t]o mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage").

[6] In Wade v. Hirschman, the Florida Supreme Court applied equitable principles and recognized the supremacy of the best interest of the child standard when it rejected the argument that a party seeking to modify must show a detriment to the child due to the existing parenting plan:

Requiring proof of detriment to the child in order to show a substantial and material change of circumstances misstates the burden that is necessary to overcome the res judicata effect of the previous decree and conflicts with the best interest standard because it restricts the trial court’s ability to act In the best interest of the child in custody modification proceedings. This restriction on the trial judge is contrary to the intent of the Legislature to give trial judges wide latitude to work equity in chapter 61 proceedings. See § 61.011, Fla. Stat. (2004) ("Proceedings under this chapter are in chancery.").

903 So. 2d 928, 933 n.11 (Fla. 2005); see also Mallick v. Mallick, 311 So. 3d 243, 246 (Fla. 2d DCA 2020) (explaining that because of the inherent equitable nature of chapter 61 and the history of the application of equitable principles in Florida family law, "[t]he proposition that in these matters courts may act only within the bounds of what is explicit in chapter 61 subverts an elemental tenet of Florida’s family law jurisprudence."). Thus, a court applying section 61.13(3) to a petition for modification must apply equitable principles of fundamental fairness and the best interest of the child in reviewing all the facts and circumstances of the specific case.²

The Legislature emphasized in section 61.13(3) that "the best interest of the child must be the primary consideration" when a trial court is considering a petition to modify a parenting plan. This primary consideration of the child’s best interests appears in the statute before—and again after—the required showing of a substantial and...