Opinion
No. 1D20-1379
01-12-2022
Lindsey Nicole HARRELL, Mother, Appellant, v. Michael COOK, Father, Appellee.
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant. Nicole Kessler Ferry of Ferry & Ferry, P.A., Pensacola, for Appellee.
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.
Nicole Kessler Ferry of Ferry & Ferry, P.A., Pensacola, for Appellee.
B.L. Thomas, J. Appellant raises two issues challenging the lower court's timesharing determination in the final judgment establishing paternity and parenting plan. We address only one issue, because Appellant failed to preserve for appellate review her argument that the trial court erred in its custody determination under section 61.13, Florida Statutes. See Owens v. Owens , 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007) (holding appellant fails to preserve the issue of sufficient findings of fact for appellate review, when she fails to move for rehearing or otherwise raise the issue before the lower court).
Appellant lives in Pensacola, and Appellee lives in Houston, Texas. Under a temporary order, Appellee was entitled to timesharing twice a month from Thursday afternoon to Tuesday. The lower court entered a parenting plan, which included the following paragraph concerning weekend time-sharing:
Until the minor child begins Kindergarten, the Mother shall have timesharing every other weekend from Friday at 4:00 pm until Sunday evening at 6:00 pm. Mother's weekends with the child shall rotate in coordination with the child's sister, so that both children are with the Mother at the same time.
Appellant argues the lower court engaged in a prohibited prospective-based analysis when it made its time-sharing plan. We agree. See Preudhomme v. Preudhomme , 245 So. 3d 989 (Fla. 1st DCA 2018) (holding that lower court engaged in prohibited prospective-based analysis when it ruled it was in the best interest of the child for the parties to continue to rotate weekly timesharing until the child entered kindergarten); see also Hughes v. Binney , 285 So. 3d 996 (Fla. 1st DCA 2019) (holding that lower court erred by engaging in prohibited prospective-based analysis when it attempted to anticipate what the future best interests of the child would be when modifying a time-sharing schedule); see also Robbins v. Kerns , 308 So. 3d 255 (Fla. 1st DCA 2020) (holding that lower court engaged in prohibited prospective-based analysis by ruling that time-sharing schedule would change to 50/50 automatically when the child entered kindergarten approximately two years in the future). On remand, the lower court shall delete the portion of its order addressing time-sharing and custody matters related to future events. See Preudhomme , 245 So. 3d at 990.
AFFIRMED in part, REVERSED in part, and REMANDED .
Lewis, J., concurs; Bilbrey, J., concurs with opinion.
Bilbrey, J. concurring.
I continue to believe that the trial judges of Florida should be permitted to make rulings on parenting that "involve reasonable, evidence-based anticipation or prospective determination of likely future events." Horton v. Horton , 257 So. 3d 1197, 1201 (Fla. 1st DCA 2018) (Bilbrey, J., concurring). Allowing trial judges to do so would conserve judicial resources. It would also save parents the expense of litigating over future events which, at the time of the initial ruling, will almost certainly occur. But I agree with the majority that Arthur v. Arthur , 54 So. 3d 454 (Fla. 2010), and various cases from this court following Arthur preclude such prospective-based rulings from the trial courts. As a result, I agree that here we must reverse to strike the prospective-based ruling in the parenting plan.