Solomon v. Solomon

251 So.3d 244

David SOLOMON, Appellant,

v.Sofia Vasquez SOLOMON, Appellee.

No. 3D17–1553

District Court of Appeal of Florida, Third District.

Opinion filed June 20, 2018.

Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.

Cynthia J. Dienstag, P.A., and Cynthia J. Dienstag, for appellee.

Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.

LAGOA, J.

David Solomon (the "husband") appeals from a Final Judgment of Dissolution of Marriage with Dependent or Minor Children (the "Final Judgment"), and he raises several arguments on appeal, only one of which warrants discussion. Because the Final Judgment does not set forth specific steps that the husband must take in order to obtain unsupervised time sharing with his children, we reverse and remand to the trial court for the limited purpose of setting forth such steps, and otherwise affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The husband and Sofia Vasquez (the "wife") were married on July 12, 2001. The husband and wife have two minor children from the marriage. The wife filed a petition for dissolution of marriage on January 25, 2016. With the filing of the petition for dissolution, the wife also obtained a temporary injunction for protection against domestic violence, which prevented the husband from having contact with the wife and the children. The husband filed a counter-petition for dissolution of marriage.

On April 19, 2016, the trial court entered an agreed order appointing Jerome H. Poliacoff, Ph.D. ("Poliacoff"), to examine the parties and the children and make recommendations pursuant to section 61.13, Florida Statutes (2016). Poliacoff rendered his report on July 11, 2016 (the "Poliacoff Report"). Poliacoff recommended supervised visitation between the husband and the children, which "should begin with a goal of ending in a short time frame." Under a section entitled "Review and Revision," Poliacoff recommended that the plan be reviewed every three months by a guardian ad litem with the stated goal of increasing access time for the husband with the children.

The husband states that on July 13, 2016, the parties agreed to extend the temporary injunction for a year and to amend the temporary injunction to provide that the husband have supervised time-sharing with the children in accordance with the Poliacoff Report. On August 15, 2016, the trial court entered an agreed order appointing Terilee Wunderman, Ph. D., as guardian ad litem for the children.

The matter proceeded to trial on April 20, 2017. On May 3, 2017, the trial court entered a Final Judgment, and attached to the Final Judgment were the Poliacoff Report and a Guardian ad Litem Status Report Update dated April 13, 2017 (the "Guardian's Status Report"). The Guardian's Status Report recommended that the husband continue with his individual therapy and that "[u]nsupervised visits between [the husband and the children] should be considered as the next step in this family's healing process."

Paragraph "5.C." of the Final Judgment, entitled "Parenting Plan," provides in relevant part:

The Court adopts the Evaluation of Jerome H. Poliacoff, PhD, attached as Exhibit B, and the Guardian Ad Litem Status Report Update dated April 13, 2017, attached as Exhibit C, as the Parenting Plan to be followed by the parties at this time. The Father's supervised time sharing shall continue .... Terrilee Wunderman shall continue her role as Guardian Ad Litem for the two minor children pursuant to previous court order. Individual therapy for the Husband shall continue .... The Wife and the children shall participate in family therapy on an as needed basis.

On May 18, 2017, the husband filed a Motion for Rehearing and/or Reconsideration. On June 9, 2017, the trial court denied the Motion for Rehearing and/or Reconsideration. This appeal followed.

II. ANALYSIS

"The failure to ‘set forth any specific requirements or standards’ for the alleviation of timesharing restrictions is error. This applies to both the prevention of timesharing altogether and to restrictions."

Witt–Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016) (citation omitted) (quoting Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004) ). Where a final judgment fails to set forth what steps a parent must take in order to establish unsupervised timesharing, the final judgment must be reversed and remanded for the trial court to identify such steps. Tzynder v. Edelsburg, 184 So.3d 583, 583 (Fla. 3d DCA 2016) (reversing and remanding for the trial court to identify the necessary steps for the parent to reestablish unsupervised timesharing with child where the final judgment restricted timesharing to supervised contact one time per week); see also Curiale v. Curiale, 220 So.3d 554, 555 (Fla. 2d DCA 2017) ; Perez v. Fay, 160 So.3d 459, 466 (Fla. 2d DCA 2015) (finding that "the amended supplemental final judgment is legally deficient on its face because it does not set forth what steps the Mother must take to regain primary residential custody and/or meaningful unsupervised time-sharing with her daughter"). But see Dukes v. Griffin, 230 So.3d 155, 157 (Fla. 1st DCA 2017) (stating that vesting trial courts with authority to enumerate steps to re-modify timesharing schedules and alleviate timesharing restrictions "appears contrary to § 61.13(3), Florida Statutes, which sets forth its own specific requirements for modifying parenting plans, including time-sharing schedules" and certifying conflict with Perez, 160 So.3d 459, and Witt–Bahls, 193 So.3d 35, and other cases addressing the issue).

Here, the trial court adopted the Poliacoff Report and the Guardian's Status Report as the parenting plan in the Final Judgment. The Poliacoff Report recommended that the supervised visitation between the husband and his children "begin with a goal of ending in a short time frame" and that the plan be reviewed every three months by a guardian ad litem with the stated goal of increasing access time for the husband with the children. The Guardian's Status Report, issued one month before the final judgment, recommended that "[u]nsupervised visits between [the husband and the children] should be considered as the next step in this family's healing process." Each report, therefore, stated that the supervised nature of the timesharing should not be permanent, but neither identified the steps necessary for the father to terminate supervised timesharing. In adopting the reports as the parenting plan, the trial court therefore failed to set forth specific benchmarks or identify for the husband the steps necessary to terminate the supervised timesharing. Although a trial court is not required to set forth "every minute detail of the steps to reestablish unsupervised timesharing[,] ... [t]he requirement is for the [husband] to walk out of the courtroom knowing that if [he] satisfactorily accomplishes relatively specific tasks, [he] will be able to reestablish unsupervised timesharing." Witt–Bahls, 193 So.3d at 39 (citation omitted).

We therefore reverse the Final Judgment to the extent it fails to provide the husband with the specific steps he must undertake in order to obtain unsupervised timesharing with his children. On remand, the trial court is instructed to amend the Final Judgment to identify such steps. See Tzynder, 184 So.3d at 583. The Final Judgment is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

ROTHENBERG, C.J., and LOGUE, J., concur.

LAGOA, J., specially concurring,

I write separately to address section 61.13(3), Florida Statutes (2018).ⁱ Our precedent in Tzynder v. Edelsburg, 184 So.3d 583 (Fla. 3d DCA 2016), as well as opinions from other district courts, Witt–Bahls v. Bahls, 193 So.3d 35 (Fla. 4th DCA 2016), and Perez v. Fay, 160 So.3d 459 (Fla. 2d DCA 2015), require the trial court to set forth in its final judgment or order the specific steps necessary to reestablish unsupervised timesharing, and the trial court's failure to include such steps render the judgment or order legally deficient. Because we are bound by our prior precedent, I join the majority's opinion.

These cases, however, appear to establish a judicially created requirement not supported by the statutory language of section 61.13(3). " ‘[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ " Atwater v. Kortum, 95 So.3d 85, 90 (Fla. 2012) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ); see also DMB Inv. Tr. v. Islamorada, Village of Islands, 225 So.3d 312, 317 (Fla. 3d DCA 2017) (" ‘The Legislature must be understood to mean what it has plainly expressed and this excludes construction. The Legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.’ " (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) ) ). "Florida courts are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable...