Opinion
No. 1D19-2784
04-23-2020
Anna M. BELL, Appellant, v. William D. BELL III, Appellee.
Daniel Phillips of Phillips Law Firm, P.A., Tallahassee, for Appellant. John C. Kenny of Law Offices of John C. Kenny, Tallahassee, for Appellee.
Daniel Phillips of Phillips Law Firm, P.A., Tallahassee, for Appellant.
John C. Kenny of Law Offices of John C. Kenny, Tallahassee, for Appellee.
Osterhaus, J.
Anna M. Bell appeals two orders related to the parties’ timesharing and support responsibilities for their three children. She argues that the court improperly granted the father's petition for modification as there was no substantial change in circumstances. She also argues that the court improperly denied her motion for enforcement seeking certain childcare expenses owed by the father. We reverse and remand.
I.
The parties divorced in 2014, leaving three minor children from their marriage. The original timesharing schedule provided that the mother would get the children Monday through Friday and every other weekend, while the father would have them every other weekend. For the 2015–16 school year, the parties informally agreed to add Thursday evenings and Monday mornings to the father's every-other-weekend schedule. But this arrangement later reverted to the original schedule.
The father then sought to modify the timesharing schedule, asking for an increase of his time. He asserted that a substantial change in circumstances had occurred because of his successful completion of mental health counseling over a two-year period and because of helpful, prescribed medication he had been taking. At a hearing, the father conceded that his issues with anger, depression, and mood swings had contributed to the divorce. The mother testified that there had been abusive conduct as well. The father's therapist confirmed at the hearing that the father had now become stronger emotionally and that family time with the children had become much easier for him to handle. The therapist expressed no further concerns about the father's behavior. The trial court ultimately accepted the father's case for modification after denying the mother's summary judgment motion. The court concluded that the father's mental health-related progress amounted to a substantial and material change warranting modification of the parenting plan. The court's order on timesharing reduced the mother's time by about 20 percent during the school year, with the parties splitting major holidays and summers 50/50.
The court did not consider the mother's pending motion for enforcement at the hearing. She had sought contribution from the father for certain child-related expenses. Having run out of time to address it at the hearing, the trial court's omnibus order on June 6, 2019, considered the motion for enforcement to be moot or abandoned and denied it without passing on its merits.
II.
"Appellate courts review orders modifying time-sharing for an abuse of discretion." Ness v. Martinez , 249 So. 3d 754, 757 (Fla. 1st DCA 2018). Modification proceedings are "entirely different" than those for initial custody determinations, Cooper v. Gress , 854 So. 2d 262, 267 (Fla. 1st DCA 2003), and courts have considerably less discretion in them. Ragle v. Ragle , 82 So. 3d 109, 111 (Fla. 1st DCA 2011). "A party seeking to modify a parenting plan ‘must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody.’ " Garcia v. Guiles , 254 So. 3d 637, 640 (Fla. 1st DCA 2018) (quoting Reed v. Reed , 182 So. 3d 837, 840 (Fla. 4th DCA 2016) ); see also § 61.13(3), Fla. Stat. "This required proof imposes an ‘extraordinary burden’ on the party seeking modification." Hutchinson v. Hutchinson , 287 So. 3d 695, 696 (Fla. 1st DCA 2019) (quoting Ragle , 82 So. 3d at 111 ). To determine whether the trial court abused its discretion, we look to the record for competent substantial evidence to support the trial court's decision. See Jannotta v. Hess , 959 So. 2d 373, 374 (Fla. 1st DCA 2007).
Here, the court ruled that improvements in the father's mental health after counseling and medication constituted a substantial change in circumstances that allowed for the modification of timesharing. It is true that the evidence showed that the father's mental health had improved substantially since implementation of the original parenting plan. The father said he was a completely different person, and his therapist had no concerns about his behavior.
But we have recognized that improved life circumstances do not constitute a substantial change in circumstances sufficient to allow for a modification of timesharing arrangements. In Jannotta , for example, a former wife had overcome alcohol abuse, remarried, and was better able to provide a stable home for her four children than even the former husband. Id. at 374. We concluded, however, that this evidence was insufficient to constitute a substantial and material change in circumstances. Id. We reached a similar conclusion in Kilgore v. Kilgore , 729 So. 2d 402, 406 (Fla. 1st DCA 1998), where we cited "numerous opinions" for the proposition that improved life circumstances aren't enough to allow for a custody modification. Accordingly, here, while recognizing the evidence of the father's improved mental health, life circumstances, and prospects for having a stable family life, this evidence isn't sufficient to grant his petition to modify timesharing.
As to the second issue, the mother argues that the court improperly denied her motion for enforcement as abandoned or moot. Her motion asked the court to compel the father to pay $4,136 for his half of certain expenses pursuant to the parenting plan and marital settlement agreement. The trial court's omnibus order denied the motion after deeming it "either moot or abandoned at this time." Although the court's reference to "at this time" could be read to suggest that it was reserving judgment, it ultimately "denied" the motion and ended judicial labor on the issue. See Fort v. Fort , 951 So. 2d 1020, 1021 n.1 (Fla. 1st DCA 2007) (finding an order appealable because it was clear that judicial labor was at an end). We reverse because the record bears out the mother's argument that she hadn't abandoned her motion, nor was her enforcement issue moot. Rather, there simply was not enough time to address it at the hearing (as the father's brief acknowledges).
III.
Accordingly, the orders are REVERSED and the case is REMANDED for further proceedings consistent with this opinion.
Jay and Tanenbaum, JJ., concur.