P.D.V-G. v. B.A.V-G.

320 So.3d 885

P.D.V-G., Appellant,

v.B.A.V-G., Appellee.

Case No. 2D20-1178

District Court of Appeal of Florida, Second District.

Opinion filed May 7, 2021.

Mira Staggers White of Mira Staggers White, Attorney at Law, P.A., Punta Gorda, for Appellant.

B.A.V-G., pro se.

MORRIS, Judge.

P.D.V-G., the former husband, appeals a supplemental final judgment for modification, which granted exceptions filed by B.A.V-G., the former wife, to the general magistrate's report and recommendations and denied the former husband's supplemental petition for modification. We reverse because the former husband demonstrated a substantial change in circumstances necessary for modification, as found by the general magistrate.

The parties were married and have two children together, born in June 2010 and January 2012. The parties divorced in August 2015, and the final judgment of dissolution provided for equal timesharing and shared parental responsibility. Around the time of the divorce, the former wife began a romantic relationship with her boyfriend, and the two of them had a child together in November 2016. In August 2018, the former husband filed a supplemental petition for modification of the final judgment, seeking a change in parental responsibility and timesharing based on incidents involving the former wife and her boyfriend, the former wife's harassment of the former husband, and the former wife's interference with the former husband's visitation and shared parental responsibility.

After an evidentiary hearing on August 8, 2019, the general magistrate found that there had been a substantial change in circumstances based on the former wife's behaviors, her relationship with her boyfriend, and the removal of the children from the former wife's "temporary care" during a dependency case that had been opened in 2017. The magistrate also made detailed findings regarding the best interests of the children. Regarding domestic violence, the magistrate found that "[t]here is a significant history of domestic violence and police activity" between the former wife and her boyfriend and that the former wife significantly minimalized her history of domestic violence with her boyfriend. The magistrate also found that the boyfriend, who serves as a parental figure, has a "significant history of substance and alcohol abuse," although noting that he was doing well with his sobriety. The magistrate recommended that the former husband's request for sole parental responsibility be denied but that the former husband should be designated as the ultimate decision-making parent on the issues of health care and education. The magistrate also recommended amending the timesharing to give the former wife visitation on alternating weekends.

The former wife filed exceptions to the magistrate's report and recommendations, which the circuit court granted. In a January 24, 2020, order on the former wife's exceptions, the trial court ruled as follows:

The Former Husband alleged the parties' children were removed from the Former Wife by the Department of Children and Families more than a year before he filed his supplemental petition for modification. The Former Husband's supplemental petition was heard by a General Magistrate on August 8, 2019 after which the Magistrate granted the Former Husband's petition citing the following as substantial and material changes in circumstances:

a. the [Former Mother's] behaviors:

b. the [Former Mother's] relationship with her paramour:

c. the removal of the minor children from the [Former Wife's] temporary care (by the Department of Children and Families).

That the Magistrate erred as a matter of law is evident in his own Report and Recommendations [Report]. The court directs the parties' attention to ... where he describes the removal of the children from the [Former Wife] as "temporary." In order for a court to grant a supplemental petition for modification of a parenting plan the petitioner must first allege and prove the occurrence of a substantial, material and permanent change in circumstances. The Former Husband alleged ... the [Former Wife] was reunified with the parties' children in February of 2018, almost seven months before he filed his supplemental petition. Thus, the temporary emergency had been resolved and could not form the basis of the later permanent change in circumstances.

The trial court entered a supplemental final judgment, denying the former husband's supplemental petition for modification.

On appeal, the former husband argues that the trial court applied an incorrect legal standard when reviewing the magistrate's report. The former husband argues that the relevant statute, section 61.13, Florida Statutes (2018), does not require a change in circumstances to be permanent. He also argues that the trial court failed to consider that the magistrate relied on the former wife's relationship with her boyfriend in finding a change in circumstances.

This court reviews de novo the trial court's review of a magistrate's report and recommendations. See In re Drummond, 69 So. 3d 1054, 1057 (Fla. 2d DCA 2011) ("In virtually all review proceedings, the reviewing court has an identical ability to determine what law will be applied to the facts in reaching a decision. Thus, in this context, the trial court should conduct a de novo review to assure that the magistrate has selected the correct law to apply in reaching his or her decision. ... Likewise, this court will also review de novo to determine that both the magistrate and the trial judge applied the correct law."); Coriat v. Coriat, 306 So. 3d 356, 358 (Fla. 3d DCA 2020) ("Our review of the trial court's review of the general magistrate's Report and Recommendations is de novo." (quoting Lopez v. Dep't of Revenue, 201 So. 3d 119, 123-24 (Fla. 3d DCA 2015) ).

Section 61.13(3) provides in relevant part that "[a] determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child." In other words, "[a] party seeking to modify a parenting plan 'must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody.' " Meyers v. Meyers, 295 So. 3d 1207, 1211 (Fla. 2d DCA 2020) (alteration in original) (quoting Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018) ).

The trial court erred in focusing on the fact that the removal of the children from the former...