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explaining that appellate court could not determine whether appellant objected below to relief not requested where transcript of proceeding was unavailable
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Case No. 5D20-578
02-12-2021
Yuriem POSSO, Appellant, v. George SIERRA, Appellee.
Erin E. Morse and Gabriela A. Bonilla, of The Law Office of Erin Morse, Orlando, for Appellant. Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, for Appellee.
Erin E. Morse and Gabriela A. Bonilla, of The Law Office of Erin Morse, Orlando, for Appellant.
Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, for Appellee.
COHEN, J. Yuriem Posso and George Sierra are the natural parents of J.S. A final judgment of paternity was entered establishing shared parental responsibility, timesharing, financial support, and related issues. Posso appeals that judgment, contending that the trial court lacked jurisdiction to enter the order because the proceeding had been referred to a general magistrate. Posso further asserts that the trial court erred in computing child support; superseding an order from the Department of Revenue; apportioning health care costs; effectively setting aside a parenting plan entered into during mediation; in the establishment of a timesharing plan; and in ordering the parties to return to mediation when J.S. enters middle school and high school.
J.S. was born out of wedlock in 2013. Two years later, Sierra petitioned to determine paternity and sought approximately equal timesharing. He also requested the trial court to prohibit Posso from relocating out of state with the child. Posso counter-petitioned and sought to relocate with J.S. to North Carolina. The case was referred to a general magistrate.
In 2017, the parties entered into a mediated settlement agreement and parenting plan. The agreement called for shared parental responsibility and outlined two different timesharing schedules, depending on whether Posso would be allowed to relocate out of state.
Several months later, Posso filed a motion for entry of final judgment and for the agreement to be incorporated therein. In response, Sierra objected to entry of a final judgment and requested setting the case for trial, noting Posso's noncompliance with the mediated settlement agreement and the fact that the agreement had yet to be accepted by the trial court. Posso objected to proceeding to trial on the basis that there had not been a substantial change in circumstances and that a hearing was pending before the trial court for the purpose of entering a final judgment in accordance with the mediated settlement agreement.
The court minutes from the hearing reflect that the trial court, Judge Heather P. Rodriguez, found that it did not have jurisdiction to hear Posso's motion for entry of final judgment because the entire case had been transferred to a general magistrate.
Nothing occurred for the next eight months. Eventually, Judge Diana M. Tennis, sua sponte, set a case management conference, which resulted in the case being set for trial before Judge Alan S. Apte. Neither side objected and both filed pre-trial memorandums.
Prior to trial, Posso amended her relocation petition. The parties proceeded to another case management conference, where the court minutes reflect that both parties announced they were ready for trial and that Posso withdrew her motion for relocation. Trial occurred in November 2019, and final judgment was entered two months later. As will become critical to our analysis, we have no transcripts from any of these proceedings, including the trial.
On rehearing, Posso argued for the first time that the trial court did not have jurisdiction to conduct the trial because the case had been referred to a general magistrate. She raised additional objections to the findings, or lack thereof, in the final judgment and took issue with the timesharing schedule because it conflicted with that of J.S.’s half-sibling. The motion for rehearing was denied, and this appeal followed. Jurisdiction of the Court
Posso argues that because the case had been referred to a general magistrate, it was error for the trial court to conduct a trial and enter a final judgment. She cites to Judge Rodriguez's order in support of her position.
We recognize that once a matter has been heard by a magistrate and evidence taken, a judge is not allowed to substitute his or her judgment for that of the magistrate. See Davis v. Maloch, 287 So. 3d 689, 692–93 (Fla. 5th DCA 2019) ; see also Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d DCA 2006). However, that does not divest the circuit court of jurisdiction, nor is this a case where the trial court substituted its judgment for that of a magistrate who had heard the evidence. Cf. Davis, 287 So. 3d at 692–94. There had been no evidentiary proceedings and findings entered by a magistrate in this case.
While it is true that Judge Rodriguez refused to hear the case because it had been referred to a magistrate, Judge Rodriguez's denial was in response to Posso's motion for final judgment and entry of the mediated timesharing agreement. After Judge Rodriquez declined to hear the case, Posso continued to litigate in the trial court, filing numerous motions and attending multiple case management conferences and trial, all without objection. After fully participating in the trial, Posso cannot, after what she perceived as an unfavorable result, then raise a procedural objection in a motion for rehearing. See Portales v. Another Beautiful Corp., 121 So. 3d 562, 563 (Fla. 3d DCA 2012) ("By the appellant's failure to timely object to the procedure she now contends to be irregular, she is deemed to have waived the objection by acquiescence." (citations omitted)); see also Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) (noting that contemporaneous objection is typically required to preserve error for appeal). As noted, the referral to a magistrate does not divest the circuit court of jurisdiction.
Child Support
Posso argues that a final judgment of paternity must have a child support guidelines worksheet attached, and because the trial court failed to do so, there are insufficient findings as to how the trial court made its pertinent determinations. She asserts that the trial court's imputation of income lacks sufficient factual findings, as only one financial affidavit had been filed by each party, but the amount imputed to each party did not match the affidavits.
Sierra concedes, and we agree, that the trial court erred in failing to set out findings in the final judgment to support its ruling. The trial court's order on appeal sets forth imputed gross income of both parties and requires Posso to pay Sierra $33.48 per month in child support, finding that she had the ability to make that monthly payment. However, the judgment does not explain the basis for the imputed income or why it did not utilize the parties’ net income. Nor does the record include the child support guidelines worksheet or the parties’ financial affidavits. As a result, there is simply no explanation in the record as to how the trial court arrived at the parties’ respective incomes, or how it determined child support. See Clements v. Clements, 254 So. 3d 635, 636 (Fla. 5th DCA 2018) (finding that trial court erred in failing to explain in final order how it calculated appellee's income); Aguirre v. Aguirre, 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008) ("A final judgment is facially erroneous, requiring remand, where it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed.").
In his brief, Sierra suggests that attachment of the child support guidelines worksheet will resolve the lack of factual findings. The court minutes suggest that the parties stipulated to income, but the minutes do not contain specific amounts. It appears that at trial, Sierra's counsel was ordered to prepare a child support guidelines worksheet "utilizing the stipulated income," yet it is not in the record.
Due to the lack of findings in the final judgment, this Court cannot conduct a meaningful review of the child support award. See Mathieu v. Mathieu, 877 So. 2d 740, 741 n.1 (Fla. 5th DCA 2004). Given the concession of error, we remand for the required additional findings.
The Department of Revenue/Retroactive Child Support
Posso argues that the trial court erred in superseding an administrative child support order without proper notice to her, as such relief was not requested by the pleadings, nor was the issue noticed for trial. Additionally, she claims that the final order contains error in that it did not address the retroactive amount of child support that was owed by Sierra.
Initially, we note that Sierra had filed a motion to supersede the administrative child support order entered by the Florida Department of Revenue and referenced such motion in his pre-trial memorandum. To the extent that Posso now asserts that such relief was required to be within Sierra's petition, we are unable to determine whether she objected below because there is no transcript. See Lightsey v. Davis, 267 So. 3d 12, 14 n.1 (Fla. 4th DCA 2019). Posso also failed to raise the issue in her motion for rehearing.
Sierra concedes that the trial court erred in failing to address the issue of retroactive child support. We agree and remand for determination of retroactive child support amounts due and owing. See § 409.2563(10)(c), Fla. Stat. (2015).
Health Insurance
Posso argues that the trial court erred in apportioning J.S.’s uncovered medical expenses 40% to her and 60% to Sierra, claiming that the trial court should have split the incurred expenses by the parties’ pro-rata share of general financial responsibility for J.S. Sierra concedes error and explains that the attachment of a child support guidelines worksheet is the proper remedy. Had counsel prepared a child support worksheet as requested by the trial court, this issue could have been alleviated.
It appears the trial court's apportionment of uncovered medical expenses roughly matched the ratio of the parties’ gross income imputed in the final order. Nevertheless, as both parties recognize, there are insufficient findings related to the parties’ income, as the trial court did not provide its calculation as to how it reached those numbers and why it used the parties’ gross income rather than net. See Mathieu, 877 So. 2d at 741 n.1 ; see also Clements, 254 So. 3d at 636 ; Aguirre, 985 So. 2d at 1207. We remand for the court to make the required findings.
Additionally, Posso argues that it was reversible error for the trial court to obligate her current husband to pay for J.S.’s health insurance when her husband does not have any responsibility for him. As with certain other issues raised, Posso's argument is not supported by the language of the final judgment. The trial court did not order Posso's current husband to provide health insurance; it merely recognized that J.S. was on her husband's health insurance at the time of the order.
Parenting Plan
Posso argues that the trial court erred in giving Sierra the ultimate decision-making authority over J.S. without making the required findings that such preference was in the best interest of J.S. and that shared parenting would be detrimental to him. Posso adds that it was erroneous to grant Sierra ultimate decision-making authority when he failed to plead for such relief.
A trial court's order establishing a parenting plan is reviewed for an abuse of discretion. J.N.S. v. A.M.A., 194 So. 3d 559, 560 (Fla. 5th DCA 2016). "The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." § 61.13(2)(c)2., Fla. Stat. (2015). "In ordering shared parental responsibility, the court ... may grant to one party the ultimate responsibility over specific aspects of the child's welfare ... based on the best interests of the child." § 61.13(2)(c)2.a., Fla. Stat. "Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family." Id. Although that statute outlines factors the trial court must consider in determining the best interests of the child, the trial court is not required to list out each factor in the final judgment. Hindle v. Fuith, 33 So. 3d 782, 785 (Fla. 5th DCA 2010). A trial court's statement that its findings are in the best interest of the child is adequate, so long as there is sufficient evidence. See id.
The relevant written findings of the trial court in the instant case were:
The decision of the Court is based on what is in the best interest of the children [sic]. The Court having heard the testimony at trial and considering all the factors delineated in Florida Statutes 61.13(3) makes the following findings and makes the following rulings in regard to Parental Responsibility Parenting Plan and Time Sharing:
Over time, Mother/Respondent has moved further and further [sic] away from where the parties lived together. This has strained the relationship and timesharing.
Father/Petitioner will foster a better relationship with regard to Mother/Respondent.
....
It is in the best interest of the child that the parents confer and jointly make all major decisions affecting the welfare of the child. Major decisions include, but are not limited to, decisions about the child's education, healthcare, and other responsibilities unique to this family. Should the parents be unable to reach an agreement, Petitioner/Father, GEORGE SIERRA, shall have the ultimate decision-making authority.
....
Unless otherwise specified in this plan, each parent shall make decisions regarding day-to-day care and control of each child [sic] while the child is with that parent. Regardless of the allocation of decision making in the parenting plan, either parent may make emergency decisions affecting the health or safety of the child when the child is residing with that parent. A parent that makes an emergency decision shall share the decision with the other parent as soon as reasonably possible.
There was only one child born of the relationship.
There was only one child born of the relationship.
It is apparent from the findings in the final judgment that there were significant conflicts regarding parenting. Posso made numerous attempts to relocate out of state, and the trial court found that even when staying within Florida, she continued to move farther away from Sierra's residence. Additionally, the trial court made a specific finding that as between the two parents, Sierra would be more likely to foster a better relationship with the other parent. The trial court did what was required; it considered the statutory factors and found that the parenting plan was in the best interest of J.S. See Murphy v. Murphy, 621 So. 2d 455, 456, 458–59 (Fla. 4th DCA 1993). Because there is no transcript of the trial, Posso cannot demonstrate a lack of evidence with respect to the trial court's determination that it was in the best interest of J.S. for Sierra to have the ultimate decision-making authority. See e.g., Fortune v. Pantin, 851 So. 2d 274 (Fla. 5th DCA 2003) ("In the absence of a transcript, this court is unable to evaluate the sufficiency of the evidence considered by the trial court in support of its factual findings, and instead presumes such findings to be correct." (citing Hirsch v. Hirsch, 642 So. 2d 20, 21 (Fla. 5th DCA 1994) ; Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979) )).
While the determination to allow one parent ultimate decision-making should be based upon a finding that to do otherwise would be detrimental to the best interests of the child, see Cranney v. Cranney, 206 So. 3d 162, 165 (Fla. 2d DCA 2016), such a finding can be made either during the course of the trial or within the final judgment. See Lightsey, 267 So. 3d at 14. As noted in Lightsey, "[t]he failure to include a finding of detriment does not render the judgment fundamentally erroneous." 267 So. 3d at 14–15. In the absence of a transcript, we are unable to ascertain whether the trial court made such a finding of detriment during the course of the trial. See id. at 15. However, such a determination is consistent with many of the findings made in the final judgment.
Likewise, Posso cannot demonstrate that it was erroneous for the trial court to grant Sierra the ultimate decision-making authority although he did not plead for such relief. The same argument was made and rejected in Lightsey based on the absence of a trial transcript. 267 So. 3d at 14 n.1.
Domestic Violence
Posso alleges the trial court reversibly erred in failing to consider evidence of domestic violence, contrary to the mandate of section 61.13(2)(c) 2. Relying on Ford v. Ford, 700 So. 2d 191 (Fla. 4th DCA 1997), she posits that it is an abuse of discretion when the final judgment "is absent a meaningful analysis of the evidence of domestic violence when it was otherwise presented to the court." However, unlike the instant case, Ford contained a transcript of the trial, which reflected that domestic violence was a central issue in the case and that significant evidence on the issue had been presented.
In the instant case, the final judgment reflects that the trial judge considered Posso's allegations of domestic violence, and we have no reason to believe that the trial court did not comply with the statutory dictate that domestic violence shall be considered evidence of detriment. While the phrasing in the final judgment was less than artful, the trial court did not believe under the circumstances of this case that those allegations, which occurred over six years before trial and where the parties resided together for many years afterwards, merited a different disposition. On this record, Posso has not demonstrated an abuse of discretion.
Half-Sibling
Posso contends that the trial court failed to acknowledge the interests of J.S.’s half-sibling in determining timesharing, citing Munson v. Munson, 702 So. 2d 583 (Fla. 2d DCA 1997). However, her reliance on Munson is misplaced. In that case, the court found no abuse of discretion in the trial court's decision to separate the children from their half-sibling. Munson, 702 So. 2d at 583. In doing so, the court recognized that Florida law prefers to keep siblings together. Id. Nonetheless, the Munson court affirmed because the trial court considered the best interest factors of the children. Id. (stating that bonding between half-siblings was "other factor" as recognized in best interest factors).
The lack of a transcript again is determinative. All we have is the final judgment, in which the trial court stated that it had considered all the best interest factors in determining timesharing. We must presume that there was sufficient evidence to support that determination. Fortune, 851 So. 2d at 274. As a result, Posso cannot meet her burden of establishing an abuse of discretion by the trial court in ordering the timesharing as it did.
Mediation Agreement
Posso asserts that the trial court erred because it "unequivocally failed" to address the meditated settlement agreement between her and Sierra. While our record is scant, we have reviewed it in its entirety. The agreement was entered into during the beginning stages of the case and was never approved, incorporated, or otherwise adopted by the trial court. The mediation agreement was not listed as an exhibit entered into evidence during the trial, and Posso's motion for rehearing makes no mention of the trial court's "unequivocal" failure to address the agreement. Consequently, Posso has failed to establish that this issue was preserved for appeal. See Aills, 29 So. 3d at 1108.
Requirement to Attend Mediation in the Future
Posso argues that the trial court erred in ordering the parties to return to mediation when J.S. enters middle school and high school, respectively. While the parties do not agree on the rationale, Sierra concedes error, and thus, both request we strike that provision.
The trial court's order was entered with the best of intentions. As children grow up, they develop their own interests and schedules which require even intact families to adjust. As they age, most children establish a certain independence; it is a natural and healthy transition to adulthood, albeit sometimes a frustrating and painful period for parents. Under the best of circumstances, accommodations are necessary, and these parties do not present the best of circumstances. That said, the trial court was without authority to have entered such an order because neither party requested such relief. See Moore v. Wilson, 16 So. 3d 222, 224 (Fla. 5th DCA 2009) (finding error to order rotating custody where neither party requested such relief).
Unlike the other issues where we rejected the argument that such relief was not requested in the pleadings, Sierra concedes error on this issue.
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Conclusion
We find the trial court erred in determining the parties’ income and failing to attach a child support guidelines worksheet. The trial court also erred in failing to address retroactive child support and in ordering future mediation. In all other respects, we affirm the final judgment.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
EVANDER, C.J. and WALLIS, J., concur.