Opinion
Case No. 2D20-454
03-12-2021
R.S., Appellant, v. S.K., Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant. Scott K. Spivack of Spivack Law, P.A. Lakeland, for Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
Scott K. Spivack of Spivack Law, P.A. Lakeland, for Appellee.
NORTHCUTT, Judge.
The trial court rejected R.S.'s petition to alter the schedule governing the parties' time-sharing with their children, positing that the evidence failed to establish the elements legally necessary to permit such a modification. This was error, and therefore we reverse.
The parties' 2014 paternity judgment awarded majority time-sharing with the parties' two children to their mother, S.K. In 2019, R.S. petitioned the court to award majority time sharing to him and to order supervision of the children's visits with S.K. The basis for the petition was the sexual abuse of the parties' oldest daughter over a significant period by S.K.'s husband. The abuse was not contested at the evidentiary hearing, which focused primarily on whether the child had informed S.K. of it. After taking evidence, the trial court granted a "directed verdict" in favor of S.K. In its final order, the court stated that
after examining all the competent evidence in this case and if we look at the long term effects of the abuse on the child, M.L.S., we cannot say those are permanent. ... The court cannot say that this is a situation where the child is traumatized for life, or will be depressed and suicidal for life.
The court observed that S.K.'s husband was in jail awaiting trial, that he was facing a life sentence, and that even if he were to be acquitted, S.K. had begun proceedings to divorce him and had stipulated to an order prohibiting any contact between the parties' children and S.K.'s husband or his family. Thus, the court found, "at this point in time, there is no permanent change in circumstances as the change is that [S.K.'s husband] abused the child." It further found: "The parties can argue that there has been a substantial, unanticipated, and material change. However, it is not permanent in that the threat has been removed."
An order granting or denying a petition to modify child custody is presumed correct and generally will not be disturbed on appeal absent a showing of an abuse of discretion. Wade v. Hirschman, 903 So. 2d 928, 935 (Fla. 2005). However, questions of law are reviewed de novo. Id. at 932. In this case the trial court committed legal error when it rejected the modification petition because it concluded that the sexual abuse of the child did not pose a permanent threat of harm to the children. Florida's child custody statute provides that a judgment establishing parental responsibility, a parenting plan, or a time-sharing schedule may be modified upon "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." § 61.13(3), Fla. Stat. (2019). As the Wade court held,
[a final judgment] providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree.
Wade, 903 So. 2d at 932. "The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character." Id. at 933 (citing Bennett v. Bennett, 73 So. 2d 274, 278 (Fla. 1954) ). Once the trial court determines that there has been a substantial and material change in circumstances since the prior judgment on time-sharing, it must then apply the best-interests-of-the-child test pursuant to section 61.13(3). See id. at 935. Wade expressly rejected longstanding caselaw holding that modifying a custody decree required evidence that the change in circumstances resulted in substantial or permanent harm to the affected child. "Requiring proof of detriment is ... not an element of the substantial change test necessary to modify a child custody award." Id. at 934.
The sexual abuse of the parties' daughter by S.K.'s husband was a substantial, material, and unanticipated change in circumstances within the contemplation of section 61.13. See, e.g., Lewandowski v. Langston, 969 So. 2d 1165, 1169 (Fla. 5th DCA 2007) (holding that "the former wife's actions, which exposed the child to a registered sex offender on a regular basis, constituted a material change of circumstances affecting the physical and emotional health, safety, and well-being of the child"). But owing to the above-described error in the trial court's legal analysis, it did not appreciate that R.S. had satisfied that element of the modification standard, and therefore it did not proceed to consider the best interests of the children pursuant to section 61.13(3)(a)-(t). Accordingly, we reverse and remand for further proceedings, which may include the taking of additional testimony.
Reversed and remanded for further proceedings.
LaROSE and SMITH, JJ., Concur.