Opinion
No. 1D19-2014
02-19-2020
Melissa KYLE, Appellant, v. Hubert CARTER Jr., Appellee.
Adrian S. Middleton of Middleton & Middleton, P.A., Tallahassee, for Appellant. Charles Daniel Sikes of Charles Daniel Sikes, P.A., Starke, for Appellee.
Adrian S. Middleton of Middleton & Middleton, P.A., Tallahassee, for Appellant.
Charles Daniel Sikes of Charles Daniel Sikes, P.A., Starke, for Appellee.
Per Curiam.
Melissa Kyle appeals an order granting her former husband's petition for modification of timesharing. Kyle also appeals a contempt order rendered about nine months before the modification order. For the reasons that follow, we reverse the order on timesharing, but we dismiss as untimely the appeal of the contempt order.
Facts
Melissa Kyle and Hubert Carter, Jr. were married from 2006 until 2012, when they separated. One child was born of the marriage. After dissolution of the marriage, the trial court entered an order permitting Carter to have supervised timesharing with the child every other weekend. The order provided for no contact between Carter and Kyle during the custody exchanges because Kyle obtained an injunction against domestic violence against Carter. Under the order, the exchanges were to take place at an aunt's house.
In 2018, Carter moved to hold Kyle in contempt for not complying with the timesharing order. Carter alleged that he had not seen the child since 2015 because Kyle refused to deliver the child to the aunt's house. The trial court held Kyle in contempt of the timesharing order in an order rendered on July 23, 2018. Kyle did not file a notice of appeal regarding that order.
Carter also relied on Kyle's willful disregard of the court's orders on timesharing to request a modification of timesharing. Carter asked the court to eliminate the requirement for supervised visitation and to allow him to visit the child every other weekend.
After a hearing, the trial court found a substantial change in circumstances and concluded that unsupervised visitation was in the child's best interests. The court retained the requirement that Kyle deliver the child to the aunt's house for custody exchanges.
Kyle moved for rehearing, arguing that Carter's petition was legally insufficient and challenging the trial court's failure to make the necessary findings in support of modification. The trial court denied the motion for rehearing. This timely appeal follows. Kyle attached to her notice of appeal the timesharing order and the denial of her rehearing motion—but not the contempt order.
Analysis
We begin with Kyle's challenge to the trial court's order holding her in contempt for not complying with the timesharing order. A post-judgment contempt order is an appealable final order. Orban v. Rorrer , 279 So. 3d 234, 236 (Fla. 3d DCA 2019). Thus, Kyle should have filed her notice of appeal of the contempt order within thirty days of its issuance. Her failure to do so deprives this Court of jurisdiction to hear the appeal. See Fla. R. App. P. 9.110(h) (setting out scope of appellate review but allowing review of multiple final orders via a single notice only "if the notice is timely filed as to each such order"). Thus, we dismiss her appeal of the contempt order.
Kyle next challenges the trial court's order modifying timesharing. She argues that Carter's petition for modification was insufficiently pleaded and also that the trial court failed to make the proper factual findings in support of modification. Carter concedes both points and agrees that the timesharing order should be reversed. We agree, too.
First, the trial court erred by not denying Carter's petition for modification as facially insufficient. Carter did not plead a substantial, material, and unanticipated change in circumstances or allege how the child's best interests would be served by modification. See Korkmaz v. Korkmaz , 200 So. 3d 263, 265 (Fla. 1st DCA 2016) (requiring that pleader allege these ultimate facts). Because Carter's petition contained only conclusory allegations, we reverse the order granting modification of timesharing. Cf. id. ; see Bon v. Rivera , 10 So. 3d 193, 195–96 (Fla. 4th DCA 2009) ; Bartolotta v. Bartolotta , 687 So. 2d 1385, 1387 (Fla. 4th DCA 1997).
Second, the trial court erred by failing to make the necessary factual findings to support modification. "A modification order must be supported by competent, substantial evidence showing there has been a substantial and material change in circumstances since the final judgment of dissolution, and that the modification will be in the best interests of the child." Ness v. Martinez , 249 So. 3d 754, 757 (Fla. 1st DCA 2018) ; see § 61.13(3), Fla. Stat. And the trial court must make the necessary factual findings to allow for meaningful appellate review. Cf. Winder v. Winder , 152 So. 3d 836, 841–842 (Fla. 1st DCA 2014) (holding that trial court's lack of adequate factual findings in alimony award was reversible error); Winney v. Winney , 979 So. 2d 396, 400 (Fla. 1st DCA 2008) (explaining need for adequate factual findings); see Burkhardt v. Bass , 711 So. 2d 158, 160 (Fla. 4th DCA 1998) ("The purpose of an appellate court requiring factual findings by a trial court in a family law case, in the absence of a statutory mandate, is to facilitate meaningful appellate review of decisions in which the trial court is acting as fact finder and then exercising its judicial discretion."). Here, the trial court found only that there had been "a substantial, material, permanent, and unanticipated change" in the circumstances and that modification was "in the best interest of the minor child." The court did not explain how it reached either conclusion, so we reverse on this basis as well.
Because the petition for modification included only conclusory allegations and the modification order does not include the requisite factual findings, we reverse the order granting the petition and remand for further proceedings.
DISMISSED in part, REVERSED in part, and REMANDED .
Ray, C.J., and Rowe and Tanenbaum, JJ., concur.