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recognizing that under the facts presented, the conditions at issue were not "reasonably and objectively certain to occur at an identifiable time in the future" (quoting Rivera, 252 So. 3d at 286)
Summary of this case from N.B. v. R.V.Opinion
Case No. 2D20-513
03-26-2021
Tiffany NATALI, Appellant, v. Lawrence M. NATALI, Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant. No appearance for Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
No appearance for Appellee.
KHOUZAM, Chief Judge.
Tiffany Natali, the Mother, appeals the final judgment of dissolution of her marriage to Lawrence Natali, the Father. She challenges only the parenting plan crafted by the trial court. Because the timesharing plan therein applies an impermissible prospective-based best interest analysis, we reverse it in part.
The final judgment of dissolution includes a phased timesharing plan. Although under Phase 1 the Father may exercise only supervised visitation, Phase 2 allows him unsupervised visits. The Father may graduate from Phase 1 to Phase 2 by satisfying two predetermined conditions. First, he "must regularly exercise supervised timesharing for at least three (3) months." And second, he must "file proof with the Court of his completion of" a coparenting class. Under the terms of the timesharing plan, no court participation is required for the transition from Phase 1 to Phase 2; instead, the Father may immediately begin exercising unsupervised visitation upon satisfying both conditions. In Arthur v. Arthur, 54 So. 3d 454, 459-60 (Fla. 2010), the Florida Supreme Court vacated the part of a dissolution judgment that permitted the wife to relocate the parties' child twenty months after the final hearing. It held that the best interest determination was required to be made at the time of the final hearing and that a contrary " 'prospective-based' analysis is unsound." Id. at 459.
"Since Arthur was decided, Florida's district courts have wrestled with its application." Rivera v. Purtell, 252 So. 3d 283, 285 (Fla. 5th DCA 2018). As the Fifth District explains, the Fourth District "interpreted Arthur narrowly, appearing to conclude that the prohibition on prospective-based determinations does not apply outside of the context of a petition for relocation of the child." Id. (citing Krift v. Obenour, 152 So. 3d 645, 649 (Fla. 4th DCA 2014) ). By contrast, the First District has taken "a broader view of Arthur, and applied the prospective-based prohibition to a timesharing determination." Id. (citing J.P. v. D.P., 196 So. 3d 1274, 1275 (Fla. 1st DCA 2016) ). Upon considering these divergent interpretations, the Fifth District reconciled them by concluding "that Arthur does not prohibit a timesharing plan which ... applies the child's best interests as determined at the time of the final hearing to an event that is reasonably and objectively certain to occur at an identifiable time in the future." Id. at 286.
Like the First and Fifth Districts, this court's precedent has applied Arthur's prohibition beyond relocation provisions. In Eisele v. Eisele, 91 So. 3d 873, 874-75 (Fla. 2d DCA 2012), we held the trial court reversibly erred by determining that neither parent could home school the child, when the child would not reach schooling age until approximately twenty months after the date of the final judgment. Citing the reasoning from Arthur that "a trial court is not equipped with a 'crystal ball' that enables it to prophetically determine whether future relocation is in the best interests of a child," this court reversed the trial court's prospective determination and remanded for the trial court to hold a hearing to consider the current best interests of the child. Id. at 875 (quoting Arthur, 54 So. 3d at 459 ); see also Mallick v. Mallick, 311 So.3d 243, 245-46 (Fla. 2d DCA Oct. 16, 2020) (citing Arthur as establishing that "[t]he best interests of children must be assessed under the circumstances at the time of the modification proceeding; they cannot be determined prospectively based on either the satisfaction of predetermined benchmarks or the failure to achieve them").
Here, the parenting plan on its face presents the same "crystal ball" problem we addressed in Eisele. The parenting plan presents a multi-phased timesharing arrangement that automatically progresses based on the satisfaction of multiple predetermined but contingent future events. In particular, the Father begins with only supervised visitation, but may graduate to unsupervised visitation after he (1) exercises regular supervised timesharing for at least three months, and (2) files with the court proof of completing a specified parenting course.
As the Mother correctly identifies, this plan does not contemplate any court intervention or decision-making in order for the Father to advance to Phase 2; it permits him to do so automatically and immediately upon completing three months of supervised timesharing and filing the required documentation. Although the trial court determined that it was not in the child's best interest for the Father to exercise unsupervised visitation as of the date of the judgment, it apparently concluded that the best interest determination would flip upon the completion of these two conditions. But given the framing of the benchmarks, they could take many months or even years to occur, by which time the circumstances bearing upon the best interest analysis may have changed significantly.
This automatically graduated timesharing arrangement is thus contrary to the reasoning in Arthur disapproving a prospective-based best interest analysis on the basis that the factors "could change within the extended time period given by the court." 54 So. 3d at 459. It also is contrary to precedent from this court and the First District applying that same reasoning to best interest determinations beyond just relocation petitions. See Eisele, 91 So. 3d at 874-75 ; J.P., 196 So. 3d at 1275 ; see also Mallick, 311 So.3d at 245-46. And, because the Father's satisfaction of these conditions is not "reasonably and objectively certain to occur at an identifiable time in the future," the parenting plan also violates the Fifth District's interpretation of Arthur. Rivera, 252 So. 3d at 286.
Accordingly, we reverse the portion of the parenting plan that prospectively allows the Father to automatically graduate to unsupervised timesharing upon the satisfaction of predetermined conditions. The Father shall retain the right to petition the court for a modification, but any best interest determination must not be "prospective-based." Eisele, 91 So. 3d at 875 (quoting Arthur, 54 So. 3d at 459 ); see also Mallick, 311 So.3d at 245-46 (citing Arthur, 54 So. 3d at 459, as "holding that 'prospective-based' analysis of child's best interest is unsound; the analysis must be 'present-based' ").
Reversed in part; affirmed in part.
ROTHSTEIN-YOUAKIM, J., Concurs.
LUCAS, J., Concurs with separate opinion.
LUCAS, Judge, Concurring separately.
I concur with the court's decision and much of its analysis but write separately to broach a concern I have. The issue of whether and to what degree a family court should weigh and consider prospective events when fashioning an appropriate parenting plan is inherently challenging. Indeed, that question seems to have left our court without a majority opinion when we last touched upon it as a sixteen-judge en banc court. See Mallick, 311 So.3d at 245. On the one hand, it is well settled that family law judges cannot—and therefore should not—attempt to divine the future when creating a parenting plan. See generally Arthur, 54 So. 3d at 459 ; Eisele, 91 So. 3d at 874-75. They can only rely on the evidence and its reasonable inferences. See Harrison v. Harrison, 165 So. 2d 235, 236 (Fla. 2d DCA 1964) ("The power rests in the lower court to determine from all the evidence adduced before him which of the parents ... should have the custody of these young children."); Pena v. Rodriguez, 273 So. 3d 237, 239-40 (Fla. 3d DCA 2019) ("An abuse of discretion [in a child custody matter] appears when the record reveals a lack of competent, substantial evidence to sustain the findings of the trial court." (quoting Richardson v. Richardson, 442 So. 2d 1005, 1005 (Fla. 3d DCA 1983) )).
On the other hand, determining "the best interests of the child" necessarily entails an element of prediction. The whole point of the parenting plan is to govern future conduct. When creating a parenting plan, the family judge considers evidence of prior events adduced at trial, but his or her judgment is never confined to the singular moment that the matter was presented in court. Rather, a considerable part of the family judge's job is to weigh the evidence of past events and then predict how that evidence is going to be indicative of what will transpire in the child's future. Cf. Martinez v. Lebron, 284 So. 3d 1146, 1149 & n.4 (Fla. 5th DCA 2019) (affirming timesharing schedule ordered by trial court and noting that "the trial court detailed the actions Mother took to impede Father's efforts to maintain a relationship with Child, including preventing Father from contacting Child and going through 'breathtaking' lengths to anger Father and 'bait him to action[ ]' [as well as] that Mother attempted to thwart timesharing by failing to meet Father with Child for prearranged visits when Father flew from Florida to New York to see Child"); Rivera, 252 So. 3d at 287 (concluding that it "was entirely proper" for the trial court to adjust timesharing as of the time the child starts kindergarten because "[t]here was nothing speculative or uncertain about the child in this case starting kindergarten" and "[s]uch an event is by definition a reasonably and objectively anticipated change in circumstances that will occur at a time certain"); Kasdorf v. Kasdorf, 931 So. 2d 257, 258 (Fla. 4th DCA 2006) (affirming family court's finding that the wife, if awarded primary residential custody, would attempt to sabotage the husband's visitation with their children). Indeed, Florida Statute section 61.13(3)'s nonexhaustive list of matters to be considered when establishing or modifying a parenting plan includes factors that call for prediction. See, e.g., § 61.13(3)(b), Fla. Stat. (2019) ("The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties."); § 61.13(3)(e) ("The geographic viability of the parenting plan ... and the amount of time to be spent traveling to effectuate the parenting plan."); § 61.13(3)(t) ("Any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule.").
It seems to me, then, as long as a family judge has dutifully considered the statutory factors and can apply those factors to events that are "reasonably and objectively certain to occur at an identifiable time in the future," Rivera, 252 So. 3d at 286, based on the competent, substantial evidence presented, it may be an appropriate exercise of discretion, in certain cases, for the family law judge to fashion a "staged" parenting plan that includes limited changes or alterations over the course of time based upon the occurrence of those future events. That is not what happened in the case before us, and so I concur with the court's decision. But I believe we, as a reviewing court, ought to keep a nuanced and deferential view of the temporal challenges our colleagues in the family courts face when crafting a parenting plan in the best interests of a child.