FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4463
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MARCY NICOLE OVERSTREET,
Appellant,
v.
DWAYNE STANLEY OVERSTREET,
Appellee.
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On appeal from the Circuit Court for Duval County.
John I. Guy, Judge.
April 25, 2018
KELSEY, J.
In this case of first impression, the mother challenges the trial
court’s interpretation of section 61.13002(2), Florida Statutes
(2016), which allows a military servicemember to designate a
family member to exercise that parent’s time-sharing while the
servicemember is under temporary assignment orders to relocate
away from the child. The mother also challenges the facial
constitutionality of the statute. We reverse because we conclude
that this section does not apply. We need not reach the
constitutional challenge, and decline to do so.
Section 61.13002(2)
Section 61.13002(2) provides as follows:
If a parent is activated, deployed, or temporarily
assigned to military service on orders in excess of 90 days
and the parent’s ability to comply with time-sharing is
materially affected as a result, the parent may designate
a person or persons to exercise time-sharing with the
child on the parent’s behalf. The designation shall be
limited to a family member, a stepparent, or a relative of
the child by marriage. The designation shall be made in
writing and provided to the other parent at least 10
working days before the court-ordered period of time-
sharing commences. The other parent may only object to
the appointment of the designee on the basis that the
designee’s time-sharing visitation is not in the best
interests of the child. When unable to reach agreement
on the delegation, either parent may request an
expedited court hearing for a determination on the
designation.
Subsection (7) of the statute provides that “[t]his section does
not apply to permanent change of station moves by military
personnel, which shall be governed by s. 61.13001.” § 61.13002(7),
Fla. Stat. In turn, section 61.13001, although entitled “Parental
relocation with a child” (emphasis added), defines “relocation” as
“a change in the location of the principal residence of a parent or
other person,” which must be “at least 50 miles from” the previous
principal residence and “for at least 60 consecutive days.”
§ 61.13001(1)(e), Fla. Stat.
The 2018 Florida Legislature repealed section 61.13002(2),
effective as of July 1, 2018. Ch. 18-69, § 2, Laws of Fla. In its place,
the Legislature unanimously created a new part IV of Chapter 61
of the Florida Statutes, entitled “Uniform Deployed Parents
Custody and Visitation Act” (UDPCVA). Ch. 18-69, § 1, Laws of
Fla. (creating new sections 61.703-773 of the Florida Statutes). As
its title indicates, the new statute is a uniform act that fourteen
2
states have adopted. 1 The new uniform act contains a designation
provision somewhat similar to that of section 61.13002(2), as
follows:
Upon the motion of a deploying parent and in accordance
with general law, if it is in the best interest of the child, a
court may grant temporary caretaking authority to a
nonparent who is an adult family member of the child or
an adult who is not a family member with whom the child
has a close and substantial relationship. In the case of an
adult who is not a family member with whom the child
has a close and substantial relationship, the best interest
of the child must be established by clear and convincing
evidence.
Ch. 18-69, § 1, Laws of Fla. (creating new section 61.739(1)).
It does not appear that any reported decision addresses
whether the designation provision of section 61.13002(2) is
constitutional in light of the Florida Supreme Court’s decision in
Beagle v. Beagle,
678 So. 2d 1271 (Fla. 1996), and its progeny. 2
Beagle holds that the state cannot grant visitation rights to
grandparents in an intact family if one of the child’s parents
objects, without demonstrating a compelling state interest.
Id. at
1276–77. Later cases expanded the Beagle holding to preclude
grandparent visitation absent a showing of actual harm to the
child in families that are non-intact by reason of death, dissolution,
1 Legislative Fact Sheet – Deployed Parents Custody and
Visitation Act, National Conference of Commissioners on Uniform
State Laws, http://www.uniformlaws.org/Act.aspx?title=Deployed
%20Parents%20Custody%20and%20Visitation%20Act (last
visited Apr. 10, 2018) (listing the states that have adopted the Act).
2 Likewise, it does not appear that any court has addressed
the constitutionality of the similar “temporary caretaking
authority” provision of the UDPCVA. But see Ledoux-Nottingham
v. Downs,
210 So. 3d 1217, 1222-23 (Fla. 2017) (enforcing Colorado
order mandating grandparent visitation that would violate Florida
law, because under the Supremacy Clause, federal Parental
Kidnapping Prevention Act prevails over contrary Florida law).
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and illegitimacy. See Sullivan v. Sapp,
866 So. 2d 28, 35-37 (Fla.
2004) (detailing post-Beagle holdings declaring portions of the
grandparent visitation statute unconstitutional). The supreme
court’s consistent rule is that the state can show the requisite
compelling interest only by showing that the child will endure
actual harm as a result of the lack of grandparent visitation.
Id. at
36-37. As the court held in Sullivan, “Clearly, this Court has
consistently held all statutes that have attempted to compel
visitation or custody with a grandparent based solely on the best
interest of the child standard, without the required showing of
harm to the child, to be unconstitutional.”
Id. at 37.
The law requires us to refrain from reaching constitutional
questions if we can resolve the case on other grounds. In re Holder,
945 So. 2d 1130, 1133 (Fla. 2006). Because we can resolve this case
without passing upon the statute’s constitutionality, we decline to
address the mother’s constitutional challenge to section
61.13002(2).
Facts
The parties have an ongoing dissolution proceeding. They also
have a daughter who is just over a year old. The father is an active
member of the United States Navy, who was stationed in
Pensacola when the parties got married. Before the baby was born,
the Navy asked the father to indicate his top five picks of where he
would like to be stationed next. The parties agreed that they would
like to live in Guam, and the Navy assigned the father to Guam for
three years. As part of the move, the Navy offered the father an
Overseas Housing Allowance and to ship his car to Guam. The
parties planned to move to Guam together with the baby. However,
the father filed for dissolution before the baby was born. The
parties could not agree on timesharing plans. The father went to
Guam alone in July 2017.
Pursuant to section 61.13002(2), the father designated his
parents, the child’s paternal grandparents, to exercise his
timesharing while he is stationed in Guam. The mother objected
to the designation, expressing concerns about the suitability of the
paternal grandparents, which the trial court rejected. The mother
also argued that section 61.13002(2) did not apply because the
assignment to Guam was a permanent change of station as defined
4
by the Navy, and not a temporary assignment as would be required
to invoke section 61.13002(2). The trial court found that the
legislature did not define “temporarily assigned,” and adopted the
father’s reasoning that any assignment of a definite duration in
excess of ninety days is temporary. The order on appeal finds the
assignment to be temporary, and thus finds section 61.13002(2)
applicable. 3
The order finds it in the child’s best interests to allow the
paternal grandparents to exercise the father’s timesharing with
the child for so long as the father is stationed in Guam. The best
interests articulated in the order are that the child will live with
the father in the paternal grandparents’ home when the father
comes back to the States, and thus the child’s reunification with
the father will be easier if the child has been in that home and with
the other adults who live there. The trial court also found it in the
child’s best interests to develop a relationship with her paternal
extended family as well as with the mother and her family. The
trial court made no findings as to whether these goals could be
achieved through other means.
Permanent Change of Station
We agree with the mother that the father’s three-year
assignment to Guam was a permanent change of station within the
meaning of section 61.13002(7), rendering section 61.13002
inapplicable. See § 61.13002(7), Fla. Stat. (“This section does not
apply to permanent change of station moves by military personnel,
which shall be governed by s. 61.13001.”). We therefore reverse
this provision of the order and remand for further proceedings
under section 61.13001.
3 The order on appeal resolves numerous other issues between
the parties, stopping short of dissolving the marriage; but the only
presently appealable provision that the mother challenges is the
designation for timesharing. See Fla. R. App. P. 9.130(a)(3)(C)(iii)
(authorizing interlocutory appeals of non-final orders that
determine “in family law matters . . . the rights or obligations of a
party regarding child custody or time-sharing under a parenting
plan”).
5
When asked to interpret a statute, the court’s guiding
principle is legislative intent. Diamond Aircraft Indus., Inc. v.
Horowitch,
107 So. 3d 362, 367 (Fla. 2013). To determine
legislative intent, we look first to the plain meaning of the statute’s
text, which we may discern from a dictionary. Green v. State,
604
So. 2d 471, 473 (Fla. 1992). We should use the plain and ordinary
meanings of words unless they lead to an unreasonable result.
State v. Burris,
875 So. 2d 408, 414 (Fla. 2004). However, the court
should prefer the technical sense of a word over the ordinary sense
if the text of the statute suggests that the words are used in a
technical sense. Lewis v. Leon Cty.,
73 So. 3d 151, 153 (Fla. 2011).
Finally, “if a part of a statute appears to have a clear meaning if
considered alone but when given that meaning is inconsistent with
other parts of the same statute . . . , the Court will examine the
entire act . . . in order to ascertain the overall legislative intent.”
E.A.R. v. State,
4 So. 3d 614, 629 (Fla. 2009) (quoting Fla. Dep’t of
Envtl. Prot. v. ContractPoint Fla. Parks, LLC,
986 So. 2d 1260,
1265–66 (Fla. 2008)). We review questions of statutory
construction de novo.
Green, 604 So. 2d at 473;
Lewis, 73 So. 3d at
153.
We hold that the trial court misinterpreted the phrase
“temporarily assigned to military service” for two reasons. First,
the context demands that we apply technical definitions of the
different types of military service rather than the ordinary
dictionary definitions. Second, the lower court’s construction of
subsection (2) is inconsistent with subsection (7).
First, the context of the statute impels us to use the military’s
technical definitions for “temporarily assigned” and “permanent
change of station.” The title of this section clearly states that it
relates to members of the armed forces. See § 61.13002
(“Temporary time-sharing modification and child support
modification due to military service” (emphasis added)). In
particular, the statute relates to types of military service
assignments, and the military provides technical definitions for
these terms. U.S. Dep’t of Defense, Dictionary of Military and
Associated Terms 7, 68, 86 (March 2018) (defining “deployment”
and “activation”). Because the statute’s applicability is based on
the type of military service assignment the parent is given, it is
logical to conclude that the legislature intended to use the same
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definitions the military uses. Those definitions support the
mother’s arguments.
The Navy provides specific definitions for Permanent Change
of Station (PCS) and Temporary Duty (TEMDU). A PCS is “the
assignment . . . of a member . . . to a different [permanent duty
station] under a competent travel order that does not specify the
duty as temporary, provide for further assignment to a new PDS,
or direct return to the old PDS.” Naval Military Personnel Manual
1320-300, at 3 (2014 ed.). 4 When moving a servicemember to a new
permanent duty station overseas, the government will pay to ship
a servicemember’s personal automobile. U.S. Dep’t of Defense, The
Joint Travel Regulations 5E-2 (Apr. 1, 2018). 5 The government
also provides an Overseas Housing Allowance to servicemembers
stationed overseas. U.S. Dep’t of Defense, Overseas Housing
Allowance (Feb. 2, 2018). 6 Finally, the military allows for the
servicemember’s family to accompany him or her to most
permanent duty stations. See The Joint Travel Regulations 5B-6.
In contrast, the Navy defines TEMDU as “duty at one or more
locations, other than the permanent duty station (PDS), under
orders which do not provide, at least initially, for return to the
starting point.”
Id. 1320-200, at 1. 7 TEMDU cannot be in excess of
180 days unless specially approved, and members on TEMDU
resume regular duty upon completion of that assignment.
Id. 1320-
300, at 5.
The second reason for favoring the use of the military’s
definitions of “temporarily assigned” and “permanent change of
station” is that it makes sense of the statute read as a whole. The
http://www.public.navy.mil/bupers-npc/reference/
4
milpersman/1000/1300Assignment/Documents/1320-300.pdf.
5 http://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf.
6 http://www.defensetravel.dod.mil/Docs/Fact_Sheet_OHA.
pdf.
http://www.public.navy.mil/bupers-npc/reference/
7
milpersman/1000/1300Assignment/Documents/1320-200.pdf.
7
statute applies to three types of short duration military service, at
the end of which the service member will normally return to his or
her original location; but the statute does not apply to longer
duration assignments where there is no guarantee that the service
member will return to his or her original location. The legislature
intended that the statute be applied to situations where the
interruption in the service member’s ability to exercise his or her
timesharing would resume upon completion of the assignment.
This intent is not clear until one reads through to subsection (7),
where the statute clearly states that its provisions do not apply
when a parent is relocating due to a permanent change in station.
The father’s interpretation does not make sense of the entire
section. If “temporarily assigned” meant merely assigned for some
definite period of time, the statute could allow one parent to
unilaterally effect a permanent change to the timesharing plan. If
the Navy issued the father orders that set the length of his stay in
Guam to twenty years, the statute as the father interprets it would
allow him to designate his family members to exercise his
timesharing rights for his daughter’s entire childhood. This
interpretation also makes little sense of subsection (7). We reject
this interpretation as unreasonable and contrary to the
Legislature’s intent as expressed in the plain language of the
statute.
We find that the legislature used the term “temporarily
assigned” to mean a duty assignment of up to six months away
from the member’s permanent duty station that provides for the
member’s next duty assignment, whether that be resuming duty
at the former PDS, beginning duty at a new PDS, or further
temporary duty. See The Joint Travel Regulations, App. A, at 34.
The father’s assignment satisfies the military definition of a
“permanent change of station” as used in section 61.13002(7),
making section 61.13001 controlling. We therefore reverse this
provision of the trial court’s order and remand for application of
the correct law.
REVERSED and REMANDED.
WOLF and BILBREY, 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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William S. Graessle and Jonathan W. Graessle of William S.
Graessle, P.A., Jacksonville, for Appellant.
Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs,
for Appellee.
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