Lane v. Lane ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed July 11, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2538
Lower Tribunal No. 13-10649
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Susan Lane,
Appellant,
vs.
Keith Lane,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Spencer Eig, Judge.
Abramowitz and Associates, and Jordan B. Abramowitz, for appellant.
Kircher Law, P.A., and Peter H. Kircher, for appellee.
Before LAGOA, FERNANDEZ, and LINDSEY, JJ.
LAGOA, J.
Susan Lane (the “mother”) appeals from the trial court’s “Order on Father’s
Amended Motion to Authorize Children’s Enrollment at Westminster Christian
School Etc.,” which (1) authorizes Keith Lane (the “father”) to file applications for
admission of the parties’ children to Westminster Christian School
(“Westminster”) for the 2018-2019 academic year and to enroll the children if they
are accepted, and (2) denies the mother’s Verified Motion for Contempt and to
Compel Father to Comply with Shared Parental Responsibility. We find that the
trial court did not abuse its discretion and affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The mother and father were divorced by Final Judgment of Dissolution of
Marriage on October 13, 2015, and have two minor children, P.L., born in 2006,
and M.L., born in 2007. Pursuant to the Final Judgment of Dissolution of
Marriage, the parties have shared parental responsibility for their minor children.
For the 2017-2018 academic year, the children attended the public schools serving
the district in which the mother lived. Specifically, P.L. attended sixth grade at
Palmetto Middle School, and M.L. attended fifth grade at Palmetto Elementary
School. The parties disagree over where the children should attend middle school
for the 2018-2019 academic year. The mother would like both children to attend
Palmetto Middle School,1 while the father would like them to attend Westminster,
1 It was established below that the mother was moving from Palmetto Bay to South
Miami and would no longer be residing in the Palmetto Middle School district for
the 2018-2019 academic year.
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a private school. The father is willing to be solely responsible for the costs
associated with attending Westminster.
On March 20, 2017, the mother filed a Verified Motion for Contempt and to
Compel Father to Comply with Shared Parental Responsibility (the “Motion for
Contempt”), arguing that the father violated shared parental responsibility when he
took the parties’ son to Westminster, without the mother’s knowledge or consent,
to have him tested to determine eligibility for entrance to the school. On
September 14, 2017, the father filed his Amended Motion to Authorize Children’s
Enrollment at Westminster Christian School at Father’s Sole Cost (the “Motion to
Authorize Enrollment”). The father alleged that the mother refused to engage in
discussions regarding the children’s potential enrollment at Westminster. The
father argued that Westminster was an excellent fit and well-suited to the talents
and activities of the children, that Westminster “outpaces” Palmetto Middle
School, and that he agreed to be solely responsible for the cost of attending
Westminster. On October 11, 2017, the trial court held a hearing on the mother’s
Motion for Contempt and the Father’s Motion to Authorize Enrollment. Both the
mother and father testified at the hearing.
On October 18, 2017, the trial court entered its “Order on Father’s Amended
Motion to Authorize Children’s Enrollment at Westminster Christian School Etc.”
(the “Order”). In its Order, the trial court granted the father’s Motion to Authorize
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Enrollment, finding that it would be in each child’s best interest to enroll at
Westminster. The Order authorized the father to file applications for admission to
Westminster for the 2018-2019 academic year and to enroll the children if the
applications were accepted. The Order further authorized the father to apply for
early admission with the understanding that the applications must be submitted
before November 1, 2017, and provided that the father shall be solely responsible
for the costs charged by Westminster should the children be accepted. The Order
also stated that the mother “shall cooperate with and fully support the children’s
applications to Westminster Christian School and their subsequent enrollment, if
accepted.” Finally, the Order denied the mother’s Motion for Contempt.
The wife’s appeal from the Order ensued. The father represented in a May
7, 2018, filing with this Court that the children have been accepted to Westminster
for the 2018-2019 academic year and that the first day of school is in August 2018.
II. STANDARD OF REVIEW
A trial court’s determination regarding the best interests of a child is
reviewed for an abuse of discretion. See Young v. Hector, 740 So. 2d 1153, 1158-
59 (Fla. 3d DCA 1999) (en banc). A trial court’s denial of a motion for contempt
is also reviewed for an abuse of discretion. See Dufour v. Damiani, 231 So. 3d
486, 488 (Fla. 4th DCA 2017); see also Milton v. Milton, 113 So. 3d 1040, 1040
(Fla. 1st DCA 2013) (“There is nothing that requires a trial court to hold a person
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in contempt; the court’s determination in this regard is reviewed for abuse of
discretion.”) (emphasis in original).
III. ANALYSIS
Where, like here, the parents share parental responsibility but cannot reach
agreement on a major decision affecting the welfare of their child, such as one
concerning education, the dispute should be presented to the trial court for
resolution. Dickson v. Dickson, 169 So. 3d 287, 289 (Fla. 5th DCA 2015). The
trial court must resolve the impasse by determining the best interest of the child.
Id. at 290; Gerencser v. Mills, 4 So. 3d 22, 23-24 (Fla. 5th DCA 2009); Sotnick v.
Sotnick, 650 So. 2d 157, 159-60 (Fla. 3d DCA 1995).
On appeal, the wife argues that the trial court erred by engaging in a
prospective best interest analysis where the hearing occurred in October 2017 for
an academic year starting in August 2018. The wife relies upon Eisele v. Eisele,
91 So. 3d 873 (Fla. 2d DCA 2012), in support of her argument. In Eisele, a final
judgment of dissolution was entered on January 18, 2011, when the parties’ child
was four years old. Id. at 874. On appeal, the former husband argued that the trial
court erred in finding that the child could not be home schooled by either party
because the child would not reach kindergarten age until approximately twenty
months after the date of the final judgment. Id. The Second District found that “it
was error for the trial court in this case to determine that it would be in the best
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interest of the child to not be home schooled by either of her parents twenty
months from the date of the final order,” and remanded for the trial court to hold a
hearing to determine whether it was in the best interest of the child, who was now
almost six, to not be home schooled.2 Id. at 875. We find that Eisele is factually
distinguishable from the case at hand. Specifically, the trial court’s determination
of whether Westminster or Palmetto Middle School was in the children’s best
interest occurred only ten months out from the start of the subsequent school year,
and importantly, only three weeks out from the November 1, 2017, deadline for
applications for early admission to Westminster. Given that this ten-month time
frame is half that of the twenty-month time frame at issue in Eisele and that the
instant case entails an application process rather than a situation addressing home
schooling that can be implemented without an application and enrollment process,
we find Eisele inapposite.
2 In reaching its conclusion, the Second District Court of Appeal in Eisele, 910 So.
3d at 875, cited to Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). In Arthur, the trial
court authorized the wife to permanently relocate with the parties’ child
approximately twenty months after the final hearing. Id. at 455. The Florida
Supreme Court held “that a best interests determination in petitions for relocation
must be made at the time of the final hearing and must be supported by competent,
substantial evidence.” Id. at 459. The Court reasoned that such a “prospective-
based” analysis is unsound because section 61.13001(7), Florida Statutes (2006),
which sets forth the various factors a trial court must consider in reaching a
determination on a parent’s request for permanent relocation, “could change within
the extended time period given by the court before relocation.” Id. In contrast to
Arthur, this case does not concern the statutory factors at issue where one parent
seeks to permanently relocate with a child, but rather, only where P.L. and M.L.
should go to school in the next academic year.
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Next, the wife argues that the trial court erred when it determined that there
was sufficient competent evidence that the father had the financial resources to
place the children in Westminster in August 2018. Specifically, the wife argues
that, pursuant to Herman v. Herman, 170 So. 3d 833, 833 (Fla. 3d DCA 2015), the
trial court must be presented with financial information before it can make the
requisite findings to support an obligation to pay for private school. We find the
wife’s argument on this point without merit. Herman and Musser v. Watkins, 752
So. 2d 141, 142 (Fla. 2d DCA 2000), upon which Herman relies, stand for the
proposition that a court cannot order a parent to contribute to private school
expenses unless it finds, among other things, that the party has the ability to pay.
Here, the trial court is not imposing a private school expense obligation; rather, the
father is volunteering to pay the tuition and expenses for Westminster. Regardless,
the father testified as to his ability to pay the private school expenses by obtaining
a loan from a friend, stating that once his support obligations are eliminated, he
will be able to pay for the school without a loan. This evidence was unrebutted,
and it was within the province of the trial court to determine the father’s credibility
on this point. The trial court’s finding that “the Father/Former Husband has made
the necessary arrangements and has the financial wherewithal to satisfy this
obligation” was based upon competent, substantial evidence, and we find no error
in the trial court’s finding.
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The mother also asserts that the trial court’s order interferes with her
religious beliefs and orders her to enforce the religious beliefs of the husband. It is
true that a trial court may not preclude a parent from practicing his or her religion
or from influencing the religious training of a child inconsistent with that of the
other parent. Steinman v. Steinman, 191 So. 3d 954, 956 (Fla. 4th DCA 2016); see
also Abbo v. Briskin, 660 So. 2d 1157, 1161 (Fla. 4th DCA 1995) (“Section 61.13
commands parents to confer on all major decisions affecting the welfare of their
child and to reach an agreement as to any required decision. When the matter
involves the religious training and beliefs of the child, we do not agree that the
court may make a decision in favor of a specific religion over the objection of the
other parent.”); Mendez v. Mendez, 527 So. 2d 820, 820 (Fla. 3d DCA 1987)
(affirming a trial court’s custody determination when, in ruling, the trial court
“conscientiously avoided any interference with the right of the non-custodial
parent to practice her religion and avoided the imposition on her of an obligation to
enforce the religious beliefs of the father”).
The mother’s testimony below, however, shows that her principal objection
to Westminster was on an educational basis and that she was not completely
opposed to a Christian-based school for the children. The mother testified on
direct examination that she objected to Westminster because, “It is a Christian-
based education system and I don’t believe that’s important for the children’s
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education.” On cross-examination, the wife reiterated, “I do not think it is
necessary for them to attend Bible study every day as one of their classes.” On
further cross examination, when asked if she would “object to any church
associated or religion based school,” the mother responded, “Not necessarily.”
Further, when asked the question of “What we are talking about is whether they
study the Bible?” the mother responded, “What we are really talking about is their
education.” Thus, the mother’s testimony establishes that her objection to
Westminster was not over its religious affiliation or any conflict with her religious
beliefs but instead the children’s overall education. Additionally, the statement in
the Order that requires the mother to “cooperate with and fully support the
children’s applications to Westminster Christian School and their subsequent
enrollment, if accepted,” when read in context, is a direction to cooperate in the
application and enrollment process and is in no way a directive that the mother
enforce the father’s religious beliefs over her own when the children are with her.
We therefore find that the trial court did not abuse its discretion.
Finally, the mother argues that the trial court erred in denying her Motion
for Contempt, in which she asserted that the husband violated the shared parental
responsibility provision in the Final Judgment of Dissolution of Marriage when he
took the parties’ son to Westminster, without the mother’s knowledge or consent,
to have him tested to determine eligibility for entrance to the school. The mother
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fails to cite to any case law standing for the proposition that it is a violation of
shared parental responsibility to take a child for academic testing. Moreover, the
father did not withdraw P.L. from his school and admit him to another; he simply
took P.L. for an admission assessment test. Cf. Sabatini v. Wigh, 98 So. 3d 245-
244 (Fla. 1st DCA 2012) (affirming trial court’s finding that mother was in
contempt of shared parental responsibility provision in final judgment where two
days prior to start of the school year mother unilaterally enrolled child in a school
seventy miles from father’s home). “Under Florida law, ‘[t]here is nothing that
requires a trial court to hold a person in contempt’” and we therefore find that the
trial court did not abuse its discretion in denying the mother’s motion for
contempt. Brooks v. Brooks, 164 So. 3d 162, 163 (Fla. 2d DCA 2015) (emphasis
in original) (quoting Milton, 113 So. 3d at 1040).
Accordingly, for the foregoing reasons, we affirm the trial court’s Order.
This opinion shall take effect immediately notwithstanding the filing of any
post-opinion motions.
Affirmed.
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