Opinion
Case No. 2D19-4530
01-15-2021
Evena Charles GLEVIS, Appellant, v. Jean Ronald GLEVIS, Appellee.
Hilda Cenecharles of Cenecharles Law Offices, Ave Maria, for Appellant. Jason K. Castro of Lucarelli Law Firm, Naples, for Appellee.
Hilda Cenecharles of Cenecharles Law Offices, Ave Maria, for Appellant.
Jason K. Castro of Lucarelli Law Firm, Naples, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
On this appeal of a final judgment of dissolution of marriage, Evena Charles Glevis, the Former Wife, challenges on various grounds the trial court's adoption of the magistrate's report and recommendation. We reject without discussion the Former Wife's arguments that competent substantial evidence did not support the magistrate's factual findings under section 61.13(3), Florida Statutes (2018), and that the court abused its discretion in adopting the recommendation that the Former Wife be limited to supervised parenting time. We agree, however, that the court abused its discretion in adopting the recommendation that the parties share parental responsibility but that Jean Ronald Glevis, the Former Husband, be awarded ultimate decision-making authority and in failing to address holiday time-sharing. To that extent, therefore, we reverse.
The trial court did not enter a final judgment of dissolution expressly stating that the parties' marriage is dissolved. Rather, it entered an "Order Granting Final Judgment of Dissolution of Marriage" that "ratified and approved" the magistrate's report in pertinent part and, with one exception, "adopt[ed] each and every additional finding and recommendation contained in the Report of the General Magistrate as the Order of this Court as if fully set forth herein and made a part hereof." Because the magistrate's report included the recommendation that the marriage be dissolved, based on our decision in Norris v. Norris, 28 So. 3d 953, 955 (Fla. 2d DCA 2010), we construe the trial court's order as a final and appealable order of dissolution. And as in Norris, we do so with some reservation, again emphasizing, for multiple reasons, "that parties obtaining a dissolution of marriage—whether or not their cases are referred to a [magistrate]—should receive a final judgment signed by a circuit judge expressly stating that their marriage is dissolved." Id.
A limited recitation of the facts is warranted. The Former Husband and the Former Wife met in Haiti, where the Former Wife lived. They dated for a few years, and the Former Husband brought the Former Wife to the United States, where they married in July 2015. In October 2015, the Former Wife became pregnant, and the couple's relationship became rocky.
A month later, the Former Husband moved out of their shared apartment in Naples. When the lease expired in March 2016, the Former Husband moved their belongings into storage, but the Former Wife refused to vacate the apartment. Around that same time, the Former Wife unsuccessfully sought an injunction against the Former Husband.
Although the Former Husband had found work in Tampa and had put a down payment on an apartment there, the Former Wife refused to move to Tampa and instead moved into a women's shelter in Naples. The Former Husband testified that the Former Wife refused to respond to his attempts to contact her and only reached out to him a few days before she gave birth. The Former Wife testified that the Former Husband never tried to contact her until a few days before the baby was due.
After the baby was born, the Former Wife briefly lived with a nurse whom she and the Former Husband had met at the hospital. The Former Husband found and signed a one-year lease on an apartment in Bonita Springs, and he, the Former Wife, and the baby lived there for a few months, with him commuting to and from Tampa.
In February 2017, however, after an argument in which the Former Wife threatened to call police and falsely claim that the Former Husband had pulled a gun on her, the Former Husband moved out of the apartment. Facing increasing debt, he did not renew the lease when it expired, and the Former Wife again was evicted after refusing to move out.
After the Former Wife was evicted, the Former Husband rented her and the baby an efficiency motel room for a month and then signed a six-month lease on an apartment for her and the baby. The Former Husband again did not renew the lease, however, which expired while he was out of the country, and the Former Wife was again evicted. The Former Husband testified that he spoke to the Former Wife on the phone and told her that he would pay for them to get another motel room. Instead, the Former Wife called the police, who took her and the baby to a shelter, where they lived for three months.
The Former Husband testified that when he had returned to the United States, he had had no idea where the Former Wife and the baby were because she had again refused to respond to his attempts to contact her. The Former Wife testified that the Former Husband had never attempted to contact her while she and the baby were at this shelter.
While at the shelter, the Former Wife obtained her work authorization. At the dissolution hearing, she testified that she had since gotten a job and had been renting a room for her and the baby.
During the pendency of the dissolution proceedings, the trial court granted the Former Husband's motion to pick up the baby after the Former Wife absconded with him. The court awarded the Former Husband exclusive time-sharing; subsequently, the Former Wife was allowed supervised visitation.
A trial court must follow the magistrate's "factual findings unless they are not supported by competent, substantial evidence or are clearly erroneous." Carls v. Carls, 890 So. 2d 1135, 1138 (Fla. 2d DCA 2004) (citing Garcia v. Garcia, 743 So. 2d 1225, 1226 (Fla. 4th DCA 1999) ). We then "review a trial court's decision to accept or reject a magistrate's recommendations for an abuse of discretion." Mills v. Johnson, 147 So. 3d 1023, 1024 (Fla. 2d DCA 2014) (citing Carls, 890 So. 2d at 1138 ). "[I]f the errors in the magistrate's report are clear on its face, the trial court errs in adopting the report." Id. at 1025.
The Former Wife argues that the trial court abused its discretion by adopting the magistrate's recommendation that the parties share parental responsibility but that the Former Husband be awarded ultimate decision-making authority. The magistrate's recommendation, as adopted, provides:
b. The Court finds that it is in the minor child's best interest that the parties exercise Shared Parental Responsibility with the Father having ultimate decision-making authority for education and non-emergency health care. The Respondent has not kept the Petitioner informed of the child's whereabouts and cut off contact with the parties' minor child in February of 2018. It is in the best interests of the child that the Petitioner be granted Ultimate Decision-Making Authority concerning the major decisions concerning the child. This includes, but are not limited to, decisions about the child's education, healthcare, and other responsibilities unique to this family.
c. The Court finds that shared parental responsibility would be detrimental to the minor child because the Mother does not maintain a stable residence and is often impossible to contact. Accordingly, it would be difficult if not impossible to make timely decisions regarding the minor child's education and non-emergency health care.
Read together, the two paragraphs suggest that the magistrate determined that shared parental responsibility is in the best interest of the child except when it comes to education and non-emergency health care. Yet the first paragraph grants the Former Husband ultimate decision-making authority over "the major decisions concerning the child," which "includes, but are not limited to , decisions about the child's education, healthcare, and other responsibilities unique to this family."
The meaning of these paragraphs is not clear, but assuming that our interpretation is correct, such a broad grant of ultimate decision-making authority to the Former Husband would be inconsistent with the award of shared parental responsibility, which "contemplates that major decisions affecting the welfare of a child are to be made after both parents confer and reach an agreement." Walker v. Walker, 274 So. 3d 1156, 1163 (Fla. 2d DCA 2019) (citing Cranney v. Cranney, 206 So. 3d 162, 164 (Fla. 2d DCA 2016) ). "By awarding one parent ultimate decision-making authority on issues affecting the child[ ], the trial court essentially nullifies the award of shared parental responsibility." Id. (citing Cranney, 206 So. 3d at 164 ). Accordingly, we reverse and remand for the trial court to clarify—and, if necessary, to modify—the extent of shared parental responsibility and/or the award of ultimate decision-making authority.
The Former Wife next argues that the circuit court erred by adopting a recommended time-sharing schedule that did not include holiday time-sharing for the Former Wife. The Former Husband argues that the Former Wife is not entitled to holiday time-sharing because she did not request it at the dissolution hearing. In the proposed parenting plan that the Former Wife submitted a few weeks before the hearing, however, she specifically proposed a holiday time-sharing schedule. Moreover, at the hearing before the circuit court on her exceptions to the magistrate's recommendation, the Former Wife objected to the magistrate's failure to address holiday time-sharing, but the circuit court did not remedy that failure. "[W]here visitation is ordered, the non-custodial parent's right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision." Todd v. Guillaume-Todd, 972 So. 2d 1003, 1006 (Fla. 4th DCA 2008). Because the court effectively denied the Former Wife holiday time-sharing without the requisite findings, we reverse and remand for further consideration of that matter.
We therefore reverse the final judgment of dissolution with respect to shared parental responsibility and ultimate decision-making authority and with respect to holiday time-sharing, and we remand for further proceedings as indicated above. In all other respects, we affirm.
Affirmed in part; reversed in part; remanded for further proceedings.
CASANUEVA and LaROSE, JJ., Concur.