Opinion
No. 2D22-195.
01-18-2023
N.B., Appellant, v. R.V., Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant. Oxalis B. Garcia and Michael C. Berry of Oxalis & Berry Law Firm, P.A., Clearwater, for Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
Oxalis B. Garcia and Michael C. Berry of Oxalis & Berry Law Firm, P.A., Clearwater, for Appellee.
SILBERMAN, Judge.
N.B. (the Father) appeals the trial court's amended final judgment establishing parental responsibility, determining timesharing, and granting R.V. (the Mother) the right to relocate to Orlando from Hillsborough County with the parties' minor child. He argues that the trial court erred in allowing the Mother to relocate with the child and in implementing a parenting plan that provides for a change in timesharing when the child begins attending school. We affirm in all respects but write to explain why we reject the Father's challenge to the timesharing ordered by the trial court.
The amended final judgment and incorporated parenting plan provide that both parents shall have equal timesharing with the child until the child begins kindergarten or, if it becomes mandatory, prekindergarten. Once the child begins school, the parenting plan provides for the Mother to have majority timesharing during the school year and for the Father to have timesharing on alternating weekends and each long weekend as well as extended timesharing over school breaks.
The Father contends that the automatic modification of timesharing upon the child beginning school is prohibited under Florida law as an improper "prospective-based analysis." We affirm the trial court's decision because a prospective modification is permissible when based on the child's best interests as determined at the final hearing and in consideration of an event that is reasonably and objectively certain to occur.
Typically, a trial court must assess the best interests of a child "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." Mallick v. Mallick, 311 So.3d 243, 250 (Fla. 2d DCA 2020) (en banc) (first citing Arthur v. Arthur, 54 So.3d 454, 459 (Fla. 2010); and then citing Henderson v. Henderson, 905 So.2d 901, 904-05 (Fla. 2d DCA 2005)). This is because "a trial court is not equipped with a `crystal ball' that enables it to prophetically determine" a child's best interests regarding a future change in circumstance. Eisele v. Eisele, 91 So.3d 873, 875 (Fla. 2d DCA 2012) (quoting Arthur, 54 So. 3d at 459).
A parenting plan that "presents a multi-phased timesharing arrangement that automatically progresses based on the satisfaction of multiple predetermined but contingent future events" presents the same "crystal ball" problem that was addressed in Eisele. Natali v. Natali, 313 So.3d 958, 959 (Fla. 2d DCA 2021) (emphasis added). This is because the best interests of a child may change over an extended time period. Id. at 960. (citing Arthur, 54 So. 3d at 459).
Although automatic modification of timesharing is improper when based on predetermined but contingent future events, it is not improper when it "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." Rivera v. Purtell, 252 So.3d 283, 286 (Fla. 5th DCA 2018) (distinguishing Arthur); see also Natali, 313 So. 3d at 960 (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)). When an event is reasonably and objectively certain to occur in the future, a court's timesharing determination "is based upon the facts before it at the final hearing, and no crystal ball is required." Rivera, 252 So. 3d at 286.
The Father did not address Rivera in his initial brief, but he argues in his reply brief that Rivera is inconsistent with our decisions in Natali and Eisele. We disagree. Natali and Eisele involved circumstances that were contingent and uncertain whereas the circumstance here was reasonably and objectively certain to occur at an identifiable future time.
Natali involved a phased timesharing plan under which the father could only exercise supervised visitation in phase one, and he could automatically move to unsupervised visits in phase two upon satisfying two predetermined but contingent future events: (1) his exercising regular supervised timesharing for at least three months and (2) his filing proof of completion of a specified parenting course. 313 So. 3d at 958. This court determined that the father's satisfaction of those two conditions was not reasonably and objectively certain to occur at an identifiable future time but instead could take many months or years to occur. Id. at 960.
In Eisele, the trial court determined that the minor child, who would not reach kindergarten age until twenty months after the date of the final judgment, could not be home schooled by either party. 91 So. 3d at 874. The trial court's decision was based on concerns addressed in a social investigation report as well as the child's lack of socialization with children of the same age. Id. at 874-75.
On appeal, this court concluded that the trial court erred in determining that it would not be in the child's best interests to be home schooled by either parent twenty months in the future. Id. at 875. Instead, a hearing would be necessary to determine whether it was in the best interests of the child, who was then nearly six years old, to not be home schooled by either parent. Id. Based on the circumstances, it was not reasonably and objectively certain that the concerns addressed in the social investigation report and the child's lack of socialization were likely to be resolved by an identifiable future time. Thus, a future best interests determination was required.
Here, similar to Rivera, the modification of the parenting plan was based on a factor that was reasonably and objectively likely to occur and was not dependent on contingent future events that may or may not occur. In Rivera, following a trial determining paternity, the trial court entered a final judgment and set forth a timesharing schedule where both parents would have equal timesharing. 252 So. 3d at 284. Like the present case, the trial court determined that when the child began kindergarten, one parent would have majority timesharing during the school year. Id. The mother moved for a new trial, arguing that the court could not prospectively modify timesharing once the child began attending kindergarten. Id. The trial court granted the mother's motion, and the father appealed the order granting a new trial. Id.
The Fifth District determined that "Arthur does not prohibit a timesharing plan which, as here, 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. The appellate court concluded that starting school "is by definition a reasonably and objectively anticipated change in circumstances that will occur at a time certain" and that "it was entirely proper for the trial court to adjust timesharing as of the time the child starts kindergarten." Id. at 287. The trial court's determination to modify timesharing once the child began kindergarten was "based upon the facts before it at the final hearing, and no crystal ball is required." Id. at 286.
Like in Rivera, the trial court in this case applied the child's best interests as determined at the time of the final hearing when it implemented a parenting plan that modifies timesharing once the child begins kindergarten. We agree with the Fifth District that beginning kindergarten is a "reasonably and objectively anticipated change in circumstances that will occur at a time certain." Id. at 287. Thus, the parenting plan does not violate Arthur, and we affirm the amended final judgment.
Affirmed.
CASANUEVA and LaROSE, JJ., Concur.