FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2718
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BONNIE E. DANIELS,
Appellant,
v.
JUSTIN CAPARELLO,
Appellee.
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On appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.
April 20, 2018
WETHERELL, J.
Appellant, the mother, seeks review of a nonfinal order
establishing the timesharing schedule for the parties’ child. We
affirm for the reasons that follow.
In 2015, the parties entered into a mediated settlement
agreement to resolve the paternity action filed by Appellee, the
father, concerning the parties’ then two-year-old child. The
agreement provided for shared parental responsibility and
established a timesharing schedule for the father that gradually
increased to “50-50/equal time sharing . . . beginning June 1,
2017, and thereafter.” The agreement did not specify how the 50-
50 timesharing would be structured, but rather provided that the
parties would mediate that issue in early 2017 if they were
unable to agree on a schedule.
In May 2017, after an unsuccessful mediation, the father
petitioned the trial court to establish the schedule for the parties’
50-50 timesharing. At the hearing on the petition, the judge
stated his intent to order a “default week-on, week-off” schedule,
but before that ruling was memorialized in a written order, the
parties stipulated to a different schedule. The order entered by
the trial court adopted the schedule stipulated to by the parties.
In seeking to reverse the trial court’s order, the mother
essentially raises three arguments. We find each argument to be
without merit.
First, we summarily reject the mother’s argument that the
trial court erred in ordering 50-50 timesharing effective June 1,
2017, because as the trial court found, the clear and
unambiguous language of the marital settlement agreement
provides for 50-50 timesharing from that date forward. The only
issue the agreement left open for subsequent litigation was “how
that 50-50 parenting time schedule should be structured.”
Second, with respect to the specific timesharing schedule
established by the trial court, we agree with the father that the
mother invited any error and cannot challenge that schedule on
appeal because she stipulated to it. See Mohammad v.
Mohammad,
371 So. 2d 1070, 1071 (Fla. 1st DCA 1979); Duffy v.
Duffy,
247 So. 2d 493, 493 (Fla. 2d DCA 1971); Shenk v. Shenk,
126 So. 2d 286 (Fla. 3d DCA 1961).
Finally, we reject the mother’s argument that the trial court
erred by not expressly finding that the stipulated-to timesharing
schedule was in the child’s best interest. This argument was not
preserved for appellate review because the mother never
presented it to the trial court for a ruling. See Hentze v. Denys,
88 So. 3d 307, 311 (Fla. 1st DCA 2012); LaCoste v. LaCoste,
58
So. 3d 404, 405 (Fla. 1st DCA 2011); Owens v. Owens,
973 So. 2d
1169 (Fla. 1st DCA 2007). We recognize that the mother argued
at the hearing that “[t]here’s a plethora of potential 50/50
schedules out there [a]nd the Court has to determine which of
those schedules is in the best interest of the child.” However,
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after the trial court entered the order adopting the timesharing
schedule stipulated to by the parties post-hearing, the mother did
not file a motion for reconsideration or otherwise apprise the trial
court that it still needed to find this schedule to be in the child’s
best interest. Moreover, because the mother does not argue on
appeal that the schedule established by the trial court (which she
agreed to) is not in the child’s best interest, we decline to hold
that the trial court’s failure to make a best interest finding is
fundamental error in this case.
Accordingly, we affirm the order establishing the 50-50
timesharing schedule for the parties’ child.
AFFIRMED.
WOLF and ROBERTS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jerry L. Rumph, Jr. of Jennifer L. Sweeting, P.A., Tallahassee,
for Appellant.
Robert A. McNeely and Melanie R. Leitman of Messer Caparello,
P.A., Tallahassee, for Appellee.
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