Opinion
No. 2D20-2978
10-01-2021
Megan LONSDALE, Appellant, v. Mario Hany ELBANNA, Appellee.
Paul H. Bowen, of Paul H, Bowen, P.A., Palm Harbor (withdrew after briefing), for Appellant. O. George Bamis, of Macfarlane, Ferguson & McMullen, Clearwater, for Appellee.
Paul H. Bowen, of Paul H, Bowen, P.A., Palm Harbor (withdrew after briefing), for Appellant.
O. George Bamis, of Macfarlane, Ferguson & McMullen, Clearwater, for Appellee.
LUCAS, Judge.
Megan Lonsdale appeals a circuit court order temporarily modifying Mario Elbanna's timesharing with the couple's minor daughter. Not long before the modification order, a five-year domestic violence injunction order had been entered against Mr. Elbanna, which, in pertinent part, had limited Mr. Elbanna's timesharing with the daughter to supervised visitations. The modification order would have provided unsupervised timesharing for Mr. Elbanna once he completed certain requirements.
A related criminal case was pending against Mr. Elbanna at the time the appeal was filed.
Because the modification order, on its face, failed to state that any substantial, material, and unanticipated change in circumstances had occurred after the entry of the injunction order or that modifying the injunction order would be in the daughter's best interests, we must reverse the modification order. See § 61.13(3), Fla. Stat. (2020) ("[A] time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."); J.G.J. v. J.H. , 318 So. 3d 632, 634 (Fla. 2d DCA 2021) ("We also agree with the mother the trial court erred in modifying the timesharing without a finding of a substantial change in circumstances, in addition to the best interest of the child."); Romeo v. Romeo , 310 So. 3d 1064, 1065 (Fla. 2d DCA 2020) (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) )); Hollis v. Hollis , 276 So. 3d 77, 79-80 (Fla. 2d DCA 2019) (reversing modification order and quoting section 61.13(3) ).
This error is apparent on the face of the order; so the fact that the appellant only provided the transcript for the second day of the two-day evidentiary hearing does not preclude appellate relief in this case. However, our holding is limited to this facial error. We find no merit in any of Ms. Lonsdale's remaining arguments in this appeal.
Reversed and remanded.
BLACK and ATKINSON, JJ., Concur.