Opinion
Case No. 2D19-225
04-21-2021
CHARLENE MARIE DURYEA, Appellant, v. KEITH ROBERT BONO, Appellee.
Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant. Andrea Black of Andrea Black, P.A., Orlando, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED Appeal from the Circuit Court for Sarasota County; Stephen M. Walker and Thomas Krug, Judges. Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant. Andrea Black of Andrea Black, P.A., Orlando, for Appellee. PER CURIAM.
Charlene Marie Duryea, the Mother, appeals a final judgment on relocation that denies her request to relocate to Oregon and directs that Keith Robert Bono, the Father, is awarded majority timesharing. We conclude that the trial court erred in denying the Mother's request to relocate because her request to relocate had been previously granted in a final order dated February 5, 2015. We affirm all other provisions of the final judgment without comment.
PROCEDURAL HISTORY
The parties to this appeal are the parents of a minor child born in September 2012. In case number 2013-DR-5400-NC, the Department of Revenue filed an action on behalf of the Mother to establish paternity and child support. In response, the Father filed an answer and counterpetition in which he asked the trial court to award parental responsibility of the child to both parents, and he requested temporary and permanent support for the child. On February 27, 2014, this action was resolved by a final judgment of paternity that adopted the recommendations of a hearing officer. The judgment noted that the parties stipulated to paternity and the child support guidelines for temporary support of the child.
Soon thereafter, in May 2014, the Mother commenced the process to relocate with the minor child from Sarasota County to Portland, Oregon. In case number 2014-DR-3861-SC, the Mother filed a pro se pleading entitled "Notice of Intent to Relocate with Child(ren)" to which the Father responded by filing a pro se objection. In his objection, the Father noted that in case number 2013-DR-5400-NC the counterpetition sought to establish timesharing with the child. The counterpetition specifically stated in paragraph one: "This is an action to determine paternity, establish a parenting plan, including a timesharing schedule, and child support."
On September 22, 2014, the trial court entered an order consolidating the paternity action in case number 2013-DR-5400-NC with the pending action in case number 2014-DR-3861-SC. Thereafter, the notice of intent to relocate was referred to a general magistrate for trial. On December 9, 2014, the general magistrate filed a report and recommendation. The general magistrate's report made several findings of fact pertaining to the parties' relationships with the child, and it granted the Mother's request to relocate. The general magistrate's report also retained jurisdiction to address a long-distance parenting plan for the child, and it directed each party to submit a proposed parenting plan within ten days. Neither party filed exceptions to the December 9 general magistrate's report and recommendation. On February 5, 2015, the circuit court approved and adopted the general magistrate's report and recommendation, and neither party appealed this order.
The general magistrate's report noted that the trial court was treating the Mother's pro se notice of intent to relocate with the child as a "Petition to Relocate with Minor Child."
After both parties filed a proposed parenting plan, on February 10, 2015, the general magistrate filed a report and thereafter an amended report adopting the Mother's long-distance parenting plan. This parenting plan gave the Mother sole parental responsibility, and it set forth a timesharing schedule which gave the Father no time with the child. The Father filed exceptions to the amended report and recommendations on February 23, 2015.
In August 2015, the trial court conducted a hearing on the Father's exceptions to the general magistrate's amended report and recommendation, and on March 11, 2016, the trial court entered a temporary order on the Father's exceptions. The trial court ordered that the parties would have shared parental responsibility and that the Father would have three seven-day timesharing visits with the child. The court denied the Father's exceptions as to the Mother's relocation and specifically ordered, "The relocation will stand." Neither party appealed this order.
Thereafter, the parties engaged in extensive litigation in the trial court and this appellate court. A final hearing in the case took place on September 11, 2018, on "all remaining issues," which resulted in the final judgment entered on December 21, 2018, that is the subject of this appeal. Both the trial court and the Father viewed the February 5, 2015, relocation order as a temporary order. As a result, the trial court evaluated the Mother's request to relocate anew and considered the evidence presented at the 2018 hearing in ruling that the request should be denied. We conclude that this was improper because the 2015 order was a final order and neither party had filed a petition to modify that order.
DISCUSSION
The trial court ruled that the 2015 relocation order was a temporary order based on its analysis of section 61.13001, Florida Statutes (2014). Section 61.13001(1)(e) defines relocation as "a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing." The trial court reasoned that, because all previous orders establishing timesharing were temporary, the relocation order was also temporary.
We commend the trial court for its emphasis to all involved that the best interest of the child is paramount and for the court's careful analysis of this case and its long, convoluted history.
The flaw in the trial court's reasoning is that section 61.13001(1)(e) does not require that a final timesharing order be filed before a parent can request to relocate. That section also defines relocation as "a change in the location of the principal residence of a parent . . . at the time of filing the pending action to establish . . . time-sharing." Id. Here, the Father had filed a counterpetition in the paternity action that sought shared parental responsibility and asked the court to "establish a parenting plan, including a timesharing schedule." Because there was a pending action to establish timesharing, the Mother could seek the court's permission to relocate from her then residence. Cf. A.F. v. R.P.B., 100 So. 3d 71, 71-72 (Fla. 2d DCA 2011) (holding that section 61.13001 did not apply because the father was already living in a different state when the parties filed competing petitions for parental responsibility and time-sharing); Rolison v. Rolison, 144 So. 3d 610, 612 (Fla. 1st DCA 2014) (concluding that section 61.13001 did not apply when the mother was living in Georgia when the father filed for dissolution of the marriage).
There is no language in either the December 9, 2014, general magistrate report and recommendation or in the February 5, 2015, trial court order approving such indicating that the ruling allowing the Mother to relocate was temporary. Therefore, the order granting the Mother's request to relocate was a final order, and the trial court improperly considered the Mother's request anew in 2018. We accordingly reverse that part of the final judgment denying the Mother's request to relocate. All of the remaining portions of the final judgment pertaining to the Mother's psychological evaluation and the Father's majority timesharing are affirmed.
Affirmed in part; reversed in part. CASANUEVA, ATKINSON, and SMITH, JJ., Concur.