Betty Caitlin Nicole Smith v. Zachary Taylor Daniel , 246 So. 3d 1279 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4240
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BETTY CAITLIN NICOLE SMITH,
Appellant,
v.
ZACHARY TAYLOR DANIEL,
Appellee.
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On appeal from the Circuit Court for Madison County.
E. Bailey Browning, III, Judge.
June 4, 2018
PER CURIAM.
Appellant, the mother, appeals that portion of the “Final
Judgment of Dissolution of Marriage with Dependent or Minor
Child” ordering shared parental responsibility and granting
supervised parenting time between the parties’ minor child and
Appellee, the father. Because those provisions of the final
judgment ignore an unexpired Kentucky Domestic Violence Order
of Protection entered against the father, and for additional reasons
discussed below, we reverse.
A trial court has “broad discretion” in determining time-
sharing matters and parenting plans, and its decision will not be
disturbed on appeal absent an abuse of discretion. J.N.S. v.
A.M.A., 194 So. 3d 559, 560 (Fla. 5th DCA 2016); Miller v. Miller,
842 So. 2d 168, 169 (Fla. 1st DCA 2003). In the present case,
however, we hold the trial court did abuse its discretion by failing
to accord full faith and credit due the Kentucky Domestic Violence
Order of Protection under 18 U.S.C. § 2265(a) 1 and section
741.315(2), Florida Statutes (2016). 2 See also § 61.526(1), Fla. Stat.
(2016). 3 Significantly, the Order of Protection prohibits the father
from coming within 500 feet of the minor child. By granting the
father “parenting time,” even though supervised, the final order
directly contravenes the explicit terms of the Order of Protection.
Furthermore, the Order of Protection was direct and
unrefuted evidence of domestic violence against the mother and
the minor child by the father. Although the trial court did find that
domestic violence occurred during the marriage because the father
118 U.S.C. § 2265(a) states in pertinent part: “Any protection
order that is consistent with subsection (b) of this section by the
court of one State . . . shall be accorded full faith and credit by the
court of another State . . . and enforced by the court . . . of the other
State . . . .” Subsection (b) requires that the issuing state shall have
had jurisdiction over the parties and given reasonable notice and
an opportunity to be heard to the party against whom the order is
sought. Here, the Order of Protection recites that the court had
jurisdiction and Appellee (“Respondent” per the order) “was
provided with reasonable notice and opportunity to be heard.”
Appellee has not challenged the order in any way.
2 Section 741.315(2), Fla. Stat., states:
Pursuant to 18 U.S.C. s. 2265, an injunction for
protection against domestic violence issued by a court of
a foreign state must be accorded full faith and credit by
the courts of this state and enforced by a law enforcement
agency as if it were the order of a Florida court . . . .
3 Section 61.526(1), Fla. Stat.—appearing in Florida’s
Uniform Child Custody Jurisdiction and Enforcement Act—
requires a Florida court to “recognize and enforce a child custody
determination of a court of another state . . . .” The Kentucky
Domestic Violence Order of Protection grants temporary custody
of the minor child to Appellant.
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did not refute the mother’s allegations of the violence, there is
nothing in the final order suggesting that the trial court seriously
considered this finding in carrying out its duty to determine the
best interests of the child according to the provisions of sections
61.13(2)(c)2. 4 and 61.13(3)(m), 5 Florida Statutes (2016). Nor can
the court’s pronouncement that the father should enjoy shared
parental responsibility and visitation with the minor child be
reconciled to its crediting of the mother’s testimony that the
domestic violence “did substantial emotional damage to the Child”
and “that the Child’s conditions and [medical] status require
special consideration and attention by the Court.”
In addition, apart from giving a passing mention to domestic
violence, which, as previously noted, is a factor to be considered
under section 61.13(3)(m), the final order is otherwise devoid of
any suggestion that the trial court considered the remaining
factors in section 61.13(3)(a)-(t), Florida Statutes (2016), in order
to determine the best interests of the child. See Bainbridge v. Pratt,
68 So. 3d 310, 313 (Fla. 1st DCA 2011) (concluding that while
“there is no statutory requirement that a trial court engage in a
discussion as to each of the factors [in section 61.13(3)], a
discussion of the relevant factors can be helpful in determining
whether the trial court’s judgment is supported by competent,
substantial evidence”). For this reason, we conclude that the trial
court’s award of shared parental responsibility and parenting time
is not based on competent, substantial evidence.
Thus, we reverse that portion of the “Final Judgment of
Dissolution of Marriage with Dependent or Minor Child” relating
to shared parental responsibility and parenting time. We remand
the case to the trial court with instructions for it to reconsider, and
if necessary, to take additional evidence on and make findings
4 Section 61.13(2)(c)2., Florida Statutes, provides that when
considering whether to order shared parental responsibility and
time-sharing, “the court shall consider evidence of domestic
violence . . . as evidence of detriment to the child.”
5 Section 61.13(3)(m), Florida Statutes, states that one of the
factors to be evaluated in determining the best interests of the
child is “[e]vidence of domestic violence . . . .”
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concerning, the Kentucky Domestic Violence Protection Order and
the best interests of the child, as those factors directly affect the
issues of shared parental responsibility and parenting time.
AFFIRMED, in part, REVERSED, in part, and REMANDED for
further proceedings.
LEWIS, ROBERTS, and JAY, 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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Betty Smith, pro se, Appellant.
Zachary Daniel, pro se, Appellee.
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