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holding that final judgment did not include a finding that there had been a "substantial, material, and unanticipated change in circumstances" that warranted modification of parenting plan and that "[t]he failure to include that finding—perhaps the most important determination a family court must make in a modification proceeding—will typically require reversal of a judgment that modifies a prior judgment's parenting plan" (quoting § 61.13(3) )
Summary of this case from Lonsdale v. ElbannaOpinion
Case No. 2D19-3237
11-20-2020
Georgeanne ROMEO, Appellant, v. Thomas E. ROMEO, Appellee.
Lisa P. Kirby of Law Offices of Lisa P. Kirby, P.A., Naples, for Appellant. Antonio J. Perez-Benitoa, Naples, for Appellee.
Lisa P. Kirby of Law Offices of Lisa P. Kirby, P.A., Naples, for Appellant.
Antonio J. Perez-Benitoa, Naples, for Appellee.
LUCAS, Judge.
Georgeanne Romeo (the Former Wife) appeals from a supplemental final judgment entered in favor of Thomas Romeo (the Former Husband) on his "Supplemental Petition for Modification of Child Support, Parenting Plan and Other Relief." The parties were divorced in 2007, at which time the final judgment dissolving their marriage adopted an agreed upon parenting plan for their three then-minor children. The supplemental final judgment, entered on July 22, 2019, changed the timesharing schedule for the parties' remaining two minor children by altering holiday visitations and extending additional overnight timesharing to the Former Husband. The supplemental final judgment also lowered the Former Husband's child support obligation.
By the time of the supplemental petition's filing, the eldest child had reached the age of majority and graduated from high school.
The supplemental final judgment did not, however, include a finding that there had been a "substantial, material, and unanticipated change in circumstances" that warranted a modification to the parenting plan. See § 61.13(3), Fla. Stat. (2019) ; D.M.J. v. A.J.T., 190 So. 3d 1129, 1131 (Fla. 2d DCA 2016). The failure to include that finding—perhaps the most important determination a family court must make in a modification proceeding—will typically require reversal of a judgment that modifies a prior judgment's parenting plan. See Bell v. Hill, 976 So. 2d 1192, 1193 (Fla. 2d DCA 2008) ; Foster v. Pearson, 925 So. 2d 1136, 1137 (Fla. 5th DCA 2006) ; cf. Engle v. Engle, 277 So. 3d 697, 702 (Fla. 2d DCA 2019) (observing that in family law proceedings "there is an acute need for the final judgment to contain the findings contemplated by the legislature due to the ongoing nature of family proceedings"). We cannot glean from this judgment or this record whether the circuit court would have deemed the evidence before it as having met the high threshold section 61.13(3) has set. And we, as an appellate court, are not in a position to make that initial determination. See Douglass v. Buford, 9 So. 3d 636, 637 (Fla. 1st DCA 2009) ("Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance.").
The Former Husband suggests the Former Wife stipulated during the trial that there had been a substantial, material, and unanticipated change in circumstances. The court included no such finding in its supplemental final judgment, but more importantly, that is simply not reflected in the record. The Former Wife did agree to changing overnight timesharing with the Former Husband for every other Sunday. But her counsel was clear, unequivocal, and adamant that her agreement was not a stipulation that there had been a substantial, material, and unanticipated change in circumstances. To the extent the circuit court construed it as such, the court was in error. See Brown v. Brown, 124 So. 3d 424, 425 (Fla. 1st DCA 2013) ("[A] parent's consent to extra visitation is not a basis for a modification."); cf. Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., LLC, 196 So. 3d 557, 561 (Fla. 4th DCA 2016) ("When construing stipulations, a court should attempt to interpret it in line with the apparent intent of the parties.").
We also reject the Former Husband's alternative argument for affirmance, that the Former Wife failed to preserve this issue because she did not file a prior motion for rehearing, in light of our recent decision in Engle. 277 So. 3d at 698-704 (holding that "the trial court's failure to make specific factual findings that are required by statute as set forth in chapter 61 is reversible error regardless of whether the error was first raised in the trial court by means of a motion for rehearing"). There is no meaningful distinction to be drawn between the context here—a supplemental final judgment modifying a dissolution judgment—and the initial dissolution judgment we addressed in Engle. The concerns and principles that Engle canvassed, and the need to provide meaningful appellate review for litigants without unnecessarily imposing jurisprudential obstacles, are just as apt when the judgment to be reviewed is a supplemental final judgment.
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We, therefore, reverse the supplemental final judgment and remand this case for further proceedings consistent with this opinion. Because of our disposition, we need not reach the Former Wife's remaining arguments on appeal.
Reversed and remanded.
SILBERMAN and MORRIS, JJ., Concur.