Perseo v. Donofrio

379 So.3d 1183

Christopher PERSEO, Appellant,

v.Erin DONOFRIO, Appellee.

No. 4D2022-2706

District Court of Appeal of Florida, Fourth District.

[February 7, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael Davis, Judge; L.T. Case No. FMCE16002638.

Scott J. Brook of Scott J. Brook, P.A., Coral Springs, for appellant.

No brief filed for appellee.

Artau, J.

The father, Christopher Perseo, appeals from a final order granting the mother, Erin Donofrio, judgment on the pleadings in this parental timesharing modification proceeding. The father contends the trial court committed reversible error in determining that the parties’ existing parenting plan required him to meet the substantial, material, and unanticipated change in circumstances burden generally applicable in timesharing modification proceedings. We reverse the judgment on the pleadings because the parenting plan’s agreed terms expressly set forth a date certain after which timesharing with the minor child would be reevaluated and could be modified without the father needing to meet the change in circumstances burden otherwise applicable in timesharing modification proceedings.

The parties’ parenting plan set forth a series of timesharing schedules under which the father would receive increased timesharing with the minor child over a period of three years. The last in the series of milestone dates set forth in the agreement provided:

March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court.

(Emphasis added).

The father petitioned for modification of the existing timesharing agreement following the parties’ unsuccessful attempt to agree on a modified timesharing schedule pursuant to the terms of their existing parenting plan. The father claimed in his petition that the mother "has routinely thwarted [f]ather’s efforts to exercise timesharing" and the parties’ unequal timesharing was no longer in the minor child’s best interests. In response, the mother argued that changing the parties’ timesharing was not in the child’s best interests because the father waited too long after the last milestone date specified in the existing parenting plan to seek the requested change in timesharing.

The trial court ultimately granted judgment on the pleadings in favor of the mother. In support of its ruling, the trial court explained that, even though "the parties’ agreed to modify the parenting plan in March of 2019," the father did not meet the burden of a substantial, material, and unanticipated change in circumstances warranting modification of the parties’ existing parenting plan.

The father argues on appeal, as he did on rehearing in the trial court, that the existing timesharing agreement, particularly the provision establishing the March 2019 milestone date, gave him the right to seek modification without proving the ordinarily required substantial, material, and unanticipated change in circumstances necessary to support modification. We agree.

In Mooney v. Mooney, 729 So. 2d 1015, 1016 (Fla. 1st DCA 1999), a mother appealed from an order granting a change in the minor child’s primary custodial parent after the trial court determined that neither party "bore [the] higher burden of proof" generally required for a modification of custody. The First District affirmed the modification decision because the parties’ custody agreement expressly indicated that "the minor child would spend one week with the [father] and one week with the [mother] ‘until the summer before the minor child begins kindergarten,’ when the arrangement would be readdressed." Id.

In C.N. v....