Malha v. Losciales

306 So.3d 1111

Pedro MALHA, Appellant,

v.Laura LOSCIALES, Appellee.

No. 3D19-1957

District Court of Appeal of Florida, Third District.

Opinion filed August 19, 2020

Francisco J. Vargas, Esq. P.A., and Francisco J. Vargas, for appellant.

Ronald H. Kauffman, P.A., and Ronald H. Kauffman, and Raquel A. Lacayo-Valle, for appellee.

Before LOGUE, MILLER, and LOBREE, JJ.

MILLER, J.

Appellant, Pedro Malha, the father, appeals a series of post-decretal orders adversely adjudicating his motion to compel, in favor of appellee, Laura Losciales, the mother. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iii)(b). On appeal, the father contends that, by authorizing the mother to reenroll the children in athletics and requiring the provision of transportation to certain competitive events, the lower tribunal impermissibly modified the final judgment. Finding the court merely enforced the terms of the judgment in order to effectively resolve a parental stalemate, we affirm.

BACKGROUND

The father and mother wed in 1997, and their union produced three children, A.M., aged sixteen, B.M., aged fourteen, and L.M., aged nine.¹ After less than a decade of marriage, the parties divorced in Portugal. Although the final decree resolved all issues of property entitlement, it did not address any matters relating to the children.

In 2016, the father petitioned for a parenting plan in Miami-Dade County. The mother filed a counterpetition, and, in early 2018, the lower court ratified a parenting plan, submitted jointly by the parties. Pursuant to the plan, the parties agreed to the following:

All extracurricular activities, including organized activities such as sports teams, lessons or special training, for the minor children must be mutually agreed upon by the parents in accordance with shared parental responsibility. Neither party shall unreasonably withhold their consent. The children's present extracurricular activities are agreed upon by both parents.

Additionally, in contemplation of the visitation arrangement, the parties stipulated: "the parent exercising time sharing with the minor children shall transport the minor children with the necessary equipment within the parent's possession to and/or from all mutually agreed upon extracurricular activities." The agreement authorized alternating weekend visitation, "[p]rovided the mother [was] not traveling with the children out of state or in state for tournaments, games or competitions." Further, the parties allocated financial obligations incurred in conjunction with participation in extracurricular activities, including travel expenses.

Although all three of the children were traditionally dedicated to in various sporting activities, their involvement in youth travel teams has increased in the past year. Naturally, greater participation requires an escalating time commitment. The children are expected to attend frequent practices, in addition to regularly traveling outside of their local community for various games and tournaments.

In early 2019, the father filed a motion to compel, purportedly seeking to enforce his right to shared parental responsibility. Specifically, he sought to curtail the sporting commitments of the children and eliminate his obligation to transport the children to certain competitive events during his timesharing.²

The lower tribunal duly convened a hearing on the motion, and, after considering the relative merits of the parties, along with the language reflected within the parenting plan, entreated the parties to reach an agreement as to enrollment and participation in the relevant activities. The court further ordered the parties to avail themselves of court-based services.

The mother subsequently filed a motion for clarification, seeking guidance as to the parameters of the ruling. The court conducted another hearing and issued a supplemental order, authorizing the mother to reenroll the children in their respective leagues and directing the father to transport the children to those competitive events scheduled during his timesharing. The instant appeal ensued.

STANDARD OF REVIEW

"The standard of review in this case is dual: our assessment of whether the trial court ‘modified’ the [parenting plan] within the meaning of section 61.13(3), Florida Statutes [(2020)], is a de novo review, while the trial court's findings of fact and rulings based on the evidentiary record are reviewed under the abuse of discretion standard."

Wade v. Wade, 159 So. 3d 1006, 1009 (Fla. 3d DCA 2015) (citing Eldridge v. Eldridge, 147 So. 3d 1048 (Fla. 5th DCA 2014) ; Valladares v. Junco–Valladares, 30 So. 3d 519 (Fla. 3d DCA 2010) ).³

ANALYSIS

"Under the principle of shared parental responsibility, major decisions affecting the welfare of the child are to be made after the parents confer and reach an agreement." Gerencser v. Mills, 4 So. 3d 22, 23 (Fla. 5th DCA 2009) (citing § 61.046(16), Fla. Stat.). However, in cases in which the parents cannot reach agreement on such a decision, "the dispute should be presented to the trial court for resolution." Lane v. Lane, 254 So. 3d 570, 573 (Fla. 3d DCA 2018) (citing Dickson v. Dickson, 169 So. 3d 287, 289 (Fla. 5th DCA 2015) ). In resolving the impasse, the lower tribunal must be guided by a consideration of the best interests of the child. Id. (citing Dickson, 169 So. 3d at 290 ; Gerencser, 4 So. 3d at 23-24 ; Sotnick v. Sotnick, 650 So. 2d 157, 159-60 (Fla. 3d DCA 1995) ).

Here, the stipulated plan allows for shared decisions over extracurricular activities. Nevertheless, because the parties’ efforts to reach a mutually satisfactory arrangement proved futile, the dispute was properly submitted to the court. Further, as the agreement prohibited the unreasonable withholding of consent, the court was properly permitted to explore the facts and circumstances surrounding both continued participation and transportation.

At the time the parties executed the parenting plan, the children were already heavily involved in athletics. By including a provision that the "present extracurricular activities are agreed upon by both parents," and allocating continuing enrollment expenses and other relevant allowances for league travel, the agreement clearly anticipated a continuation of such participation. Additionally, by all accounts, the children appear to be willing partakers, thriving in their respective endeavors.

Considering these circumstances, along with the adage that "[t]he procedural aspects and logistics of transportation of the children ... ordinarily are within the...