Ashley D. Hall, Fournier Law, Tallahassee, for Appellant. William J. Ritchie, William J. West Ritchie Law, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Joshua M. Hawkes, Judge.
Ashley D. Hall, Fournier Law, Tallahassee, for Appellant.
William J. Ritchie, William J. "West" Ritchie Law, Tallahassee, for Appellee.
Christopher Miller, a Florida resident, is the unwed father of C.S. C.S.'s mother, Jenny Gordon, lived with Miller, and the two raised C.S. together in Florida until recently. Conflict arose between the two parents, and after a brief time as a peripatetic, Gordon ended up with her parents in New Hampshire. Shortly thereafter, Miller filed a petition in Florida circuit court titled, "Petition to Determine Paternity and for Related Relief," primarily pleading for a final parenting plan and time-sharing schedule that gives him majority time-sharing, shared parental responsibility, and ultimate decision-making authority.[*] Gordon answered the petition and put certain material facts into dispute. There has not yet been a final disposition of the petition, and the case remains pending before the circuit court.
This case instead comes to us because Miller sought a temporary parenting plan, with time-sharing schedule, in terms nearly identical to the one pleaded as final relief. The circuit court obliged, but not to the extent Miller wanted. He appeals just that interim order, and we have jurisdiction to review it. See Art. V, § 4(b)(1), Fla. Const. (authorizing district courts of appeal to "review interlocutory orders . . . to the extent provided by rules adopted by the supreme court"); Fla. R. App. P. 9.130(a)(3)(C)(iii)b. (allowing appeal of non-final order that determines "the rights or obligations of a party regarding child custody or time-sharing under a parenting plan"). Miller's appeal relies almost entirely on a misunderstanding of the distinction between a temporary order and a final order in this context, and we reject his arguments as meritless.
Unlike in a dissolution proceeding, a request from an unwed father for a parenting plan comes to the circuit court with the following premise, as a matter of public policy: "The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise." § 744.301(1), Fla. Stat. Upon a proper showing after the circuit court's equity jurisdiction has been invoked, the court then will have to establish a plan that moves off this premise to accommodate the father's right to be a father. Cf. Lehr v. Robertson, 463 U.S. 248, 261 (1983) (explaining that "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the due process clause" (internal quotations and citation omitted)). The final order adopting that parenting plan, "including a time-sharing schedule, [will] govern each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child." § 61.13(3), Fla. Stat.; see also § 61.046(14), Fla. Stat. (defining "parenting plan" and limning the elements of, and procedural requirements for, development of that plan); § 61.046(23), Fla. Stat. (defining "timesharing schedule," which "must be included in the parenting plan"). In crafting that plan, the circuit court must have "the best interest of the child" as its "primary consideration," and that assessment must be done "by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of the family." § 61.13(3), Fla. Stat. The statute enumerates several of those factors. Id.
We mentioned already, however, that we are here to review a temporary order, not the final order provided for in section 61.13(3). Indeed, nothing in chapters 61, 741, or 742 of the Florida Statutes expressly provides for a temporary time-sharing schedule or parenting plan like those contained in the order on review here. But cf. § 61.13001(6), Fla. Stat. (providing for a "temporary order" in child-relocation context); § 61.503(3), Fla. Stat. (defining "child custody determination," as used in the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), to mean a court order "providing for the legal custody, physical custody, residential care, or visitation with respect to a child," and to include "a permanent, temporary, initial, and modification order"). Section 61.13(3) contemplates just a final order making this determination, with a modification allowed only where there has been "a substantial, material, and unanticipated change in circumstances." Id. At the same time, the circuit court still has the authority to render a temporary order in this space. See Martinez v. Martinez, 573 So.2d 37, 40 (Fla. 1st DCA 1990) ("Orders providing for temporary custody or temporary primary residential care are appropriate to enter while the case is pending before the entry of final judgment.").
This is so because these proceedings are in equity. See § 61.011, Fla. Stat. (characterizing proceedings under chapter 61 as being "in chancery"); see also § 742.011, Fla. Stat. (characterizing paternity proceedings as being "in chancery"). The circuit court in such proceedings has the inherent power "to provide relief if the law does not clearly provide a remedy." Slay v. Dep't of Revenue, 317 So.2d 744, 746 (Fla. 1975). This principle derives from the much older equitable proposition stating, "When a court of equity assumes jurisdiction for one purpose, it will grant full relief." John Ringling Estates v. White, 141 So. 884, 885 (Fla. 1932); see Oyama v. Oyama, 189 So. 418, 421 (Fla. 1939) (noting how it is well settled that "where a court of equity takes jurisdiction of a case for one purpose it will proceed with the determination of all the matters properly presented and will grant full relief"); Donnelly v. Mann, 68 So.2d 584, 587 (Fla. 1953) ("And equity having acquired jurisdiction for one purpose will retain it for all." (internal quotation and citations omitted)).
Along these lines, Florida law treats the establishment of a parenting plan, (which of course includes a time-sharing schedule) as being equivalent to a custody determination. See § 61.046(14)(c), Fla. Stat. (defining "parenting plan" and stating that an "order incorporating a parenting plan under this part is a child custody determination under part II of this chapter," the UCCJEA). "The subject matter involved in the question of custody of minor children is the children themselves ...." Dorman v. Friendly, 1 So.2d 734, 736 (Fla. 1941). Once the circuit court acquires jurisdiction over the child in a dispute over custody issues, then, the child "is the ward of the court," and the court's "first consideration to be observed is the welfare of the child." Id. The circuit court undoubtedly had jurisdiction over both C.S. and the petition filed by Miller. See § 61.514(1)-(2), Fla. Stat. (outlining, as part of the UCCJEA, the exclusive means by which a circuit court can establish "jurisdiction to make an initial child custody determination," based on the child's home state); see also § 61.503(4), (7), (8), Fla. Stat. (defining "child custody proceeding," "home state," and "initial determination").
All of this is to say there is no gainsaying the circuit court's authority in equity to craft an interim parenting plan and timesharing schedule. As we already noted, such a temporary order is not rendered pursuant to section 61.13(3), so contrary to Miller's main contention, how closely the circuit court hewed to the many factors listed there is not the relevant question. The brief survey we provided above of the circuit court's inherent equitable power, in turn, supports the Fourth District's assessment of these interim orders-one we join-as follows:
Contested temporary relief hearings are not and should not be as lengthy as contested final hearings. The parties need to obtain temporary relief expeditiously. Shorter hearings are required to accomplish that goal. Therefore, we hold it is not reversible error for a trial court to fail to address any of the factors set forth in section 61.13(3), Florida Statutes or to fail to make a rote statement that its decision is in the best interests of the child in temporary relief proceedings.Hoff v. Hoff, 100 So.3d 1164, 1168 (Fla. 4th DCA 2012). There also is ample support for the Fourth District's observation about the "appellate truism that temporary relief awards are among the areas where trial judges have the broadest discretion, which we are quite loathe to interfere with, save in the most compelling circumstances." Robbie v. Robbie, 591 So.2d 1006, 1008 (Fla. 4th DCA 1991).
Legion, in fact, are the decisions that address the amount of deference owed here. See Culpepper v. Osteen, 13 So.2d 911, 911 (Fla. 1943) (noting that "[t]here was a sharp conflict in the testimony on one of the vital issues involved, the determination of which depended upon the credibility of the testimony of the witnesses for and against the respective parties, including their demeanor when upon the witness stand and the manner in which they gave their testimony," such that the trial judge "was in a much better position to determine these matters than we are" and the judge's "decisions on conflicting testimony should not be disturbed by this court, where the record, as in this case, contains sufficient testimony, which, if believed by him to be true, support his conclusions and judgment"); id. at 911-912 ("There is perhaps no other class of cases that give our courts such serious concern as those which deal with the awarding of the custody of children. While we have often said that the pole-star which should guide the courts in deciding such cases is the welfare and best interests of the child, we have also said that the claims of the natural parent or parents should not lightly be disregarded."); Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980) (defining judicial discretion as the "power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court"); id. ("Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relation proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial."); see also Waterman v. Higgins, 10 So. 97, 102 (Fla. 1891) ("A decree solely on questions of fact will not be disturbed unless the evidence clearly shows that it was erroneous."); Sarasota Ice, Fish &Power Co. v. Lyle &Co., 50 So. 993, 994 (Fla. 1909) ("In other words, in equity, as well as at law, every presumption is in favor of the correctness of the ruling of the trial judge and a decree based largely or solely upon questions of fact will not be reversed, unless the evidence clearly shows that it was erroneous."); id. ("We are unable to say in the instant case that the preponderance of the evidence is against the findings of fact made by the chancellor."); Baggott v. Otis, 62 So. 362, 363 (Fla. 1913) ("In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed, unless the evidence clearly shows that it was erroneous."); Cramer v. Eichelberger, 118 So. 737, 737 (Fla. 1928) ("The case is clearly within the established rule that on questions of fact specific findings of the chancellor will not be reversed, unless it clearly appears that there is error in his conclusions."); Columbus Hotel Corp. v. Hotel Mgmt. Co., 156 So. 893, 903 (Fla. 1934) ("The rule universally applied here on appeal from such a decree is that a final decree on the facts of an equitable controversy will be upheld by this court, unless the findings of the chancellor appear to be clearly wrong in the light of the whole evidence.").
We hew to the following test that the supreme court set out for reviewing a judge's discretionary power:
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.Canakaris, 382 So.2d at 1203.
In the exercise of its discretion, the circuit court did, in fact, evaluate several of the best-interest factors listed in section 61.13(3), and it clearly determined, based on the evidence in front of it, what the child's best interests demanded under the circumstances, at least on a temporary basis. Presently, the mother has an established routine for the child, has an adaptive work schedule around the child's needs, and has been in the process of obtaining numerous medical evaluations with the child in New Hampshire. She also has been the primary caretaker of the child. The circuit court's conclusion that the child should remain with the mother under the temporary time-sharing schedule established is well within the range of reasonable options available. We are in no position to second-guess that determination, and we refuse to do so.
The father also claims that the time-sharing plan established by the trial court violates his due process rights. He asserts that because the mother did not file her own petition requesting timesharing, and only responded with an answer denying the father's claims, neither party pleaded the relief granted; and the relief granted by the circuit court is outside of the pleadings and a violation of due process. We need not reach this issue raised by the father. Without an entitlement via statute for time-sharing rights, the father cannot claim a violation of due process. See State ex rel Gore v. Chillingworth, 171 So. 649, 654 (Fla. 1936) ("Due process of law guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights."); see also S. Fla. Tr. Co. v. Miami Coliseum Corp., 133 So. 334, 337 (Fla. 1931) ("The Supreme Court of the United States has also said that the words 'due process of law,' when applied to judicial proceedings, 'mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights."' (quoting Pennoyer v. Neff, 95 U.S. 714, 733 (1877)). At all events, our disposition would still be the same, because both the father and mother were on notice of all issues pleaded, for when the father filed his petition with the trial court, he did not possess time-sharing rights to the child.
At bottom, the circuit court heard hours of live testimony, including from Miller and Gordon. It clearly assessed the credibility of the parties and other witnesses, and for the purpose of the interim order, relied primarily on its assessment that Gordon "has been the child's primary caretaker and is more sensitive to the child's needs." This assessment led the circuit court to determine that Gordon was more able to be informed of C.S.'s special circumstances, including his health care needs and daily activities. Because Gordon has been the primary caretaker, the circuit court also was swayed to conclude she had a better capacity to give C.S. a consistent routine. The circuit court, on an interim basis, gave Gordon majority time-sharing. But the court gave Miller the ability "to exercise timesharing for any weekend he is in New Hampshire," with proper notice and certain limitations. The court also gave Miller two months in the summer, the week of Thanksgiving, three weeks spanning Christmas, and spring break. The parents were given shared responsibility for C.S. Based on our review of the transcript from the evidentiary hearing, we see nothing that is clearly erroneous in the circuit court's determination.
ROBERTS and WINOKUR, JJ, concur
[*] Because Miller appears on the child's birth certificate and the mother does not challenge Miller's status as the father, a paternity hearing was neither required nor permitted. See § 742.10(1), Fla. Stat. (providing for "establishment of paternity" by a "voluntary acknowledgement of paternity" as allowed for birth certificates under section 382.013, Florida Statutes); see also id. (5) (providing that a judicial proceeding is neither required nor permitted "to ratify an unchallenged acknowledgement of paternity"); § 742.011, Fla. Stat. (authorizing a proceeding "in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise" (emphasis supplied)). We assume, without deciding, that even in the absence of an authorized paternity proceeding (because paternity already was established), there is a sufficient statutory crosswalk to chapter 61 to allow an unwed father to seek a parenting plan from the circuit court. See § 742.031(1), Fla. Stat. ("The court may also make a determination of an appropriate parenting plan, including a time-sharing schedule, in accordance with chapter 61.").