Opinion
No. 2D21-2368.
11-30-2022
Sara ALLYN, Appellant, v. Christopher ALLYN, Appellee.
Destiney R. Smith of Law Office of Destiney R. Smith , Fort Myers, for Appellant. Christopher Allyn, Pro se.
Destiney R. Smith of Law Office of Destiney R. Smith , Fort Myers, for Appellant.
Christopher Allyn, Pro se.
LUCAS, Judge.
Sara Allyn (the Mother) appeals a supplemental final judgment modifying a prior approved parenting plan over her minor child. The child's father, Christopher Allyn, filed a supplemental petition alleging that a substantial, material, and permanent change in circumstances had occurred due to inappropriate sexual contact between the child and his half-sisters while in the Mother's care. He further alleged that it would be in the child's best interests to modify the parties' previously agreed upon parenting plan. The Mother filed a cross-petition to modify the parenting plan.
Following a trial on April 29, 2021, the court entered a supplemental final judgment that decidedly reduced the overall amount of timesharing with the Mother and completely eliminated her overnight timesharing. She now appeals that supplemental final judgment; she has not, however, provided us with a transcript of the trial that precipitated the judgment.
When presented with a judgment modifying a parenting plan, we review a circuit court's findings of fact and rulings based upon those findings for abuse of discretion. See Wade v. Hirschman, 903 So.2d 928, 935 (Fla. 2005); Malha v. Losciales, 306 So.3d 1111, 1113 (Fla. 3d DCA 2020). In the absence of a transcript, however, we are left with reviewing this supplemental final judgment for error on its face. See Ivanovich v. Valladarez, 190 So.3d 1144, 1147 (Fla. 2d DCA 2016) (quoting Soto v. Soto, 974 So.2d 403, 404 (Fla. 2d DCA 2007)).
We have no cause to disturb the circuit court's determination that a substantial and material change in circumstances had arisen and that it would be in the best interest of the parties' minor child to modify the parenting plan. See generally § 61.13(3), Fla. Stat. (2020); C.N. v. I.G.C., 316 So.3d 287, 288 (Fla. 2021); Wade, 903 So. 2d at 931 n.2. But there is one provision that flows from that ruling that amounts to a legal error on the face of the judgment and requires reversal.
In the supplemental final judgment, the court included the following directions to the parties concerning therapy with a licensed mental health therapist:
The court finds that the Mother has stability and supervision[] issues in her home that have negatively impacted the child's behavior. The Court orders the Mother to work with Mary Shorack to learn how to provide more stability and supervision.
The court orders the parties to continue to work with Mary Shorack and ... for the child to continue therapy with Mary Shorack.
The Court finds that the parties should work with Mary Shorack to expand the time sharing so that the child can transition to an equal time-sharing plan starting when school lets out for the
summer assuming it is in the best interest of the child. The parties will defer to Mary Shorack regarding the expansion of time sharing. Mary Shorack may file requests for judicial case management conferences if additional court oversight is needed.
(Emphasis added.)
As a matter of law, the circuit court could not delegate its authority to fashion timesharing to Ms. Shorak. See Lovell v. Lovell, 14 So.3d 1111, 1114 (Fla. 5th DCA 2009) ("There is no legal basis for allowing the children's therapist to make the final call on when the new wife can be allowed to be in the presence of the children. This determination is solely within the province of a court of law."); Shugar v. Shugar, 924 So.2d 941, 942 (Fla. 1st DCA 2006) ("Courts may not delegate their statutory authority to determine visitation to GALs, attorneys, or experts." (citing McAlister v. Shaver, 633 So.2d 494 (Fla. 5th DCA 1994); Wattles v. Wattles, 631 So.2d 349 (Fla. 5th DCA 1994); Roski v. Roski, 730 So.2d 413 (Fla. 2d DCA 1999); Scaringe v. Herrick, 711 So.2d 204 (Fla. 2d DCA 1998) (Blue, J., specially concurring))). Plainly, that is what the concluding provision of the supplemental final judgment did, and for that reason we must reverse the judgment on appeal.
The Mother's sole argument on appeal revolves around the improper delegation of the circuit court's judicial determination to a therapist. She does not challenge, and therefore we do not consider, whether the circuit court could permissibly order her or the minor child to participate in therapy in the underlying proceeding. See Ford v. Ford, 153 So.3d 315, 319 (Fla. 4th DCA 2014) ("The statute does give the court the authority to `make specific orders regarding the parenting plan and time-sharing schedule as such orders relate to the circumstances of the parties and the nature of the case and are equitable....' § 61.13(5), Fla. Stat. (2012). This provision, however, has never been interpreted to give authority to order the parents into therapy.").
Accordingly, we reverse the supplemental final judgment in part and remand the case for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; and remanded.
CASANUEVA and BLACK, JJ., Concur.