Sanabria v. Sanabria

271 So.3d 1101

Frank P. SANABRIA, Appellant,

v.Lidania SANABRIA n/k/a Lidania Davis, Appellee.

No. 3D17-1821

District Court of Appeal of Florida, Third District.

Opinion filed February 20, 2019

Rehearing Denied March 22, 2019

Martinez-Scanziani & Associates Law, P.A., and Denise Martinez Scanziani, for appellant.

Mandel Law Group, P.A., Palmetto Bay, and Roberta G. Mandel, for appellee.

Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.

SUAREZ, Senior Judge.

Frank P. Sanabria (the "father") appeals from an Order Granting Former Wife's Petition to Relocate, which granted Lidania Sanabria's (the "mother") petition to relocate with the parties' two minor children from Miami to Huntsville, Alabama. As explained below, because the trial court erred in applying a presumption that the relocation is in the best interests of the children and placing the burden of proof on the father, as the nonrelocating parent, to show that the relocation is not in the best interests of the children, we reverse and remand for a hearing consistent with the burden of proof as set forth in section 61.13001(8), Florida Statutes (2017).

I. SUMMARY OF ISSUE ON APPEAL

The issue on appeal concerns the interaction between two subsections of section 61.13001, Florida Statutes (2017), Parental Relocation with a Child. Section 61.13001(3)(d), Florida Statutes (2017), provides that if a petition to relocate with a minor child is filed and served and an objection to the relocation is not timely filed, it is presumed that the relocation is in the best interest of the child and the trial court may enter an order allowing relocation. Section 61.13001(8), Florida Statutes (2017), provides that if there is an evidentiary hearing to determine whether relocation is in the best interest of the child, the person requesting relocation has the burden of proving by a preponderance of the evidence that the relocation is in the best interest. The specific question raised in this appeal is whether where a timely objection was not filed but where the trial court found there was good cause for the failure to file and ordered an evidentiary hearing to determine whether the relocation is in the best interest of the child, does the statutory presumption found in section 61.13001(3)(d) that relocation is in the best interest carry over to the evidentiary hearing and shift the burden of proof from the party requesting the relocation to the objecting party to first prove by a preponderance of evidence that the relocation is not in the best interest of the child. As explained more fully below, based on these facts, we find it does not.

II. FACTUAL AND PROCEDURAL HISTORY

The mother and father were married on December 3, 2005, and had two children during the marriage. On May 30, 2013, the mother and father entered into a marital settlement agreement providing for shared parental responsibility and timesharing with the children. The marital settlement agreement was ratified by the trial court in the final judgment of dissolution of marriage entered on June 13, 2013.

On April 17, 2017, the mother filed a Petition to Relocate (the "Petition") with the parties' two children from Miami to Huntsville, Alabama. The mother sought to relocate because her current husband, who lives in California, had accepted a job offer in Huntsville, and is was her desire to move to Huntsville with the children to live with her husband. In accordance with section 61.13001(3)(a)(7), Florida Statutes (2017), the Petition included the following statement:

A RESPONSE TO THIS PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILDREN, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

The father was personally served with the Petition on April 18, 2017, and retained counsel ten days later. On May 8, 2017, the father's counsel filed a Motion for Additional Time to File a Responsive Pleading. On May 11, 2017, the mother filed a Motion for Entry of Order Allowing Relocation Due to Former Husband's Failure to File an Objection to Relocation Pursuant to Section 61.13001, Florida Statutes ("Motion for Entry of Order Allowing Relocation"). The mother argued that the order should be entered as the father was required by the statute to timely file an objection and did not do so. The father subsequently filed a Response to Petition to Relocate and Request for Temporary Order on May 16, 2017, and an Amended Answer and Objection to Petition to Relocate on June 2, 2017.

On June 19, 2017, the trial court conducted a hearing on the mother's Motion for Entry of Order Allowing Relocation. At the hearing, the trial court found that the father's failure to file a response objecting to the Petition within twenty days as required by section 61.13001(3)(a)(7) was caused by his attorney's failure to file the required objection and instead filing a motion for additional time and was not due to the fault of the father. As a result, the trial court found good cause was shown pursuant to section 61.13001(3)(d), Florida Statutes (2017), for the trial court not to enter an order allowing relocation. The trial court stated that the matter would proceed to a hearing on the merits. That same day, the trial court entered an order denying the mother's Motion for Entry of Order Allowing Relocation, stating that it "has taken notice that an objection and answer was not timely filed, however, the matter (the Petition to Relocate) will be heard on the merits." The court specifically found good cause, finding that the counsel for the father did not file the proper pleadings, on time, inadvertently, by filing a motion for extension of time and that such was "in no fault, the client's [,i.e, the father's] error."

A hearing on the merits of the mother's Petition took place on June 26, 2017. At the start of the hearing, the mother argued that pursuant to section 61.13001(3)(d), the father's failure to timely file a response objecting to the Petition established a presumption that the relocation was in the best interests of the children and that as a result, the burden of proof shifted from the mother, as the parent seeking to relocate, to the father to overcome the presumption. The trial court agreed, stating that "I am ... interpreting the statute to mean that the burden now shifts to her [father's counsel] and that there is a presumption that it is in the child's best interest to move and you have to overcome that presumption." The father presented his case and the trial court heard closing argument. The trial court reconvened on July 13, 2017, and affirmed its ruling that once a response objecting to the Petition was not timely filed, the burden of proof shifted to the father to prove by a preponderance of the evidence that the relocation is not in the best interests of the children. The trial court further stated that in conducting the hearing it was "relying on a Petition and not evidence. And then I am weighing the testimony of the [father] first." The trial court orally pronounced its decision to grant the Petition.

On July 25, 2018, the trial court entered its Order Granting Former Wife's Petition to Relocate. The Order stated:

[T]he Court is affirming the prior ruling that the burden of proof shifted to the [father] once an objection was not timely filed. This Court affirms its ruling made at the June 26, 2017, hearing that it is presumed that the relocation is in the best interests of the parties' children and that the relocation should be allowed, and that the burden of proof shifted to [father] as the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interests of the parties' children. Though the statute provides for the Court to rule in favor of the [mother] without hearing from [father], the Court held a hearing and weighed the Petition to Relocate and the evidence presented by [father].

The trial court considered the factors set forth in paragraphs (a) - (i) of section 61.13001(7), Florida Statutes (2017), specifically finding with regard to factors (b), (c), (e), and (f) that the father failed to show by a preponderance of the evidence that the relocation is not in the best interest of the children, and as to factor (h), that the father failed to show that the relocation is not sought in good faith. The trial court ordered the relocation effective immediately.

The father appeals from the Order Granting Former Wife's Petition to Relocate.

III. STANDARD OF REVIEW

"An order on a petition for relocation is reviewed for an abuse of discretion, and the appellate court considers whether competent, substantial evidence supports the court's findings under section 61.13001(7), Florida Statutes." Ness v. Martinez, 249 So.3d 754, 757 (Fla. 1st DCA 2018). "[H]owever, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo." Milton v. Milton, 113 So.3d 1040, 1041 (Fla. 1st DCA 2013) ; accord Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla. 2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.").

IV. ANALYSIS

The father raises several issues on appeal. We address only one—whether the trial court erred in applying the presumption set forth in section 61.13001(3)(d), Florida Statutes (2017), and in shifting the burden of proof to the father despite finding good cause to not enter an order allowing relocation and proceeding to a hearing on the merits of the mother's Petition. Based on the plain language of the statute, we conclude that the trial court was incorrect in applying the presumption and shifting the burden of proof to the father in the evidentiary hearing.

This case concerns a parent's petition to...