Edgar v. Firuta , 2015 Fla. App. LEXIS 7558 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed May 20, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1019
Lower Tribunal Nos. 09-2093K, 10-1425K
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Patricia Edgar,
Appellant,
vs.
Edward Firuta,
Appellee.
An Appeal from the Circuit Court for Monroe County, Luis M. Garcia,
Judge.
Patricia Edgar, in proper person.
Edward Firuta, in proper person.
Before WELLS, EMAS and LOGUE, JJ.
WELLS, Judge.
Patricia Edgar appeals from a parenting plan and an order awarding her
former husband, Edward Firuta over $87,000 in fees and costs associated
therewith, on remand from this court’s decision in Edgar v. Firuta, 100 So. 3d 255(Fla. 3d DCA 2012). We reverse both orders and remand for an expedited hearing
to set a parenting plan for the parties’ minor daughter and to make express findings
of fact not only with regard to any parenting plan ordered but also as to any fee and
cost award.
For the most part, the facts pertinent to this appeal are set forth in this
court’s prior decision. There, we reversed a final order that (1) as a sanction
determined it was in the best interests of the parties’ children that all four of them
reside with their father in Key West rather than with their mother in North
Carolina; (2) nullified a substantial amount of unpaid and vested child support
arrearages; and (3) ordered the mother to pay child support to the father without a
determination of need and ability to pay:
Section 61.13001(3)(e), Florida Statutes, expressly provides that a
parent’s relocation of a minor child without complying with the
statute “may be taken into account” by the court in considering a
petition for modification or relocation. But in this case, it seems clear
that the trial court’s ruling on modification and on the parenting plan
were based on the Mother’s contumacious removal of the children to
North Carolina rather than on an evidence-based assessment of the
twenty “best interests of the child” factors enumerated in section
61.13(a)-(t). Here, as in Landingham v. Landingham, 685 So. 2d 946(Fla. 1st DCA 1996), “vindication of the trial court’s authority is
subordinate to the child’s welfare.” Id. at 950 (reversing a change of
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custody after custodial mother moved from Florida to Colorado with
the child in violation of an injunction).
Punishment of the Mother for violation of a court order may affect,
but does not conclude, the inquiry regarding the trial court’s
assessment of the “best interests of the child” for purposes of sections
61.13 and 61.13001. The final judgment also lacks evidentiary
findings regarding the other requirement for a modification, that “a
substantial change of circumstances occurred since entry of the
previous custody order that was not reasonably contemplated when
the previous order was entered.” Clark v. Clark, 35 So. 3d 989, 991
(Fla. 5th DCA 2010).
The Mother’s argument on this point is well taken. The final
judgment modifying the prior order on parental responsibility,
visitation, and timesharing is reversed and remanded for further
proceedings.
....
The final judgment awarded the Father child support and
terminated his existing child support obligation (including an
arrearage of approximately $10,000). The arrearage was vested and
not subject to termination or retroactive modification. Kranz v. Kranz,
661 So. 2d 876, 877 (Fla. 3d DCA 1995). We reverse that portion of
the final judgment.
The award of attorney’s fees and costs to the Father may have been
warranted in part as a sanction, but the findings of fact and record are
insufficient to sustain the award. There was no proof regarding the
Father’s need and the Mother’s ability to pay. We therefore reverse
the final judgment on this point as well.
III. Conclusion
The Mother invited swift and firm judicial action when she violated
the Florida court’s order in the relocation case and simply took the
youngest child to North Carolina. Nevertheless, the guiding principle
in the aftermath must continue to be the best interests of the children,
a statutory mandate. We affirm those provisions of the final judgment
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sanctioning the Mother for her precipitous actions, but we reverse the
final judgment insofar as it: (a) summarily granted sole parental
responsibility of, and exclusive timesharing with, the youngest child,
to the Father (with limited and supervised time with the Mother); (b)
determined that Florida, rather than North Carolina, is the appropriate
and best residential setting for the minor children; (c) terminated the
prior child support order and arrearage payable to the Mother; and (d)
entered a new child support obligation payable to the Father and
awarded attorney’s fees and costs to the Father, in each case without
determining his need and the Mother’s ability to pay. We remand this
difficult case, in which the children have been shuttled between the
two states several times, to the trial court for further proceedings.
Edgar, 100 So. 3d at 260, 261-62.
On remand, the mother, unemployed, having received no support for herself
or for the parties’ four children for many years, and residing in North Carolina
where the parties were divorced, asked the trial court to allow her to appear by
telephone for the final hearing to determine where the parties’ children were to
reside. The motion was denied because the trial court, relying on Florida Rule of
Judicial Administration 2.5301 and a number of cases2 predating the effective date
1 Florida Rule of Judicial Administration 2.530, addressing communication
provides in part:
...
(d) Testimony.
(1)Generally. A county or circuit court judge, general magistrate,
special magistrate, or hearing officer may allow testimony to be taken
through communication equipment if all parties consent or if
permitted by another applicable rule of procedure.
2 M.S. v. Department of Children and Families, 6 So. 3d 102, 104-05 (Fla. 4th
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of Florida Rule of Civil Procedure 1.451, concluded that it had no discretion to
allow her to so appear because the father objected. The hearing went forward
without the mother or her witnesses following which the parties’ daughter was
ordered to reside with the father and the mother was ordered to pay over $87,000
in fees and costs to the father.
We reverse both the court ordered parenting plan and the final order
awarding fees and costs to the father because the court below erred in determining
that it had no discretion to allow the mother to testify telephonically in light of the
father’s objection. On January 1, 2014, almost two months before the mother’s
motion to appear telephonically was denied, Rule 1.4513 took effect.4, 5 That Rule
DCA 2009), and S.A. v. Department of Children & Family Services, 961 So. 2d
1066, 1067 (Fla. 3d DCA 2007), relied on below, clearly were both decided before
the effective date of Rule 1.451.
3 Florida Rule of Civil Procedure 1.451 provides in part:
(a) Testimony at Hearing or Trial. When testifying at a hearing or
trial, a witness must be physically present unless otherwise provided
by law or rule of procedure.
(b) Communication Equipment. The court may permit a witness to
testify at a hearing or trial by contemporaneous audio or video
communication equipment (1) by agreement of the parties or (2) for
good cause shown upon written request of a party upon reasonable
notice to all other parties. The request and notice must contain the
substance of the proposed testimony and an estimate of the length of
the proposed testimony. In considering sufficient good cause, the
court shall weigh and address in its order the reasons stated for
testimony by communication equipment against the potential for
prejudice to the objecting party.
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allows a trial court to permit a witness to testify at a hearing or trial by
(Emphasis added).
4 In re Amendments to Florida Rules of Civil Procedure, 131 So. 3d 643, 644
(Fla. 2013), added November 14, 2013, explains:
New rule 1.451 (Taking Testimony), which we adopt as proposed,
authorizes a court to permit testimony at a civil hearing or trial by
audio or video communication equipment by agreement of the parties
or for good cause shown on written request of a party and reasonable
notice to all other parties. The Committee proposed the new civil
procedure rule in response to Florida Rule of Judicial Administration
2.530 (Communication Equipment), which permits a court to allow
testimony to be taken through communication equipment if all the
parties consent or if permitted by another applicable rule of procedure.
In 2011, at the urging of the Rules of Judicial Administration
Committee, the Court amended rule 2.530 to allow testimony to be
taken by communication equipment without the parties’ consent “if
permitted by another applicable rule of procedure.” See In re Amend.
Fla. Rules of Jud. Admin., 73 So. 3d 210, 211 (Fla. 2011). That
amendment was intended to “allow the various Florida Bar rules
committees to consider whether their bodies of rules should be
amended to allow for the use of communication equipment without
the parties’ consent.” Id. According to the report in this case, when
drafting new rule 1.451, the Committee was mindful of the need for
consistency with rule 2.530. The Committee also addressed the need
to provide guidance to the court by adding a committee note to the
rule that offers factors the court may consider in determining whether
good cause exists to permit testimony by audio or video equipment
over objection.
5 The Committee Note to Rule 1.451 provides:
This rule allows the parties to agree, or one or more parties to request,
that the court authorize presentation of witness testimony by
contemporaneous video or audio communications equipment. A party
seeking to present such testimony over the objection of another party
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contemporaneous audio or video communication equipment either by agreement of
the parties or “for good cause shown upon written request of a party upon
reasonable notice to all other parties.” Fla. R. Civ. P. 1.451 (Emphasis added).
The court below was not, therefore, barred from considering the mother’s request
to testify by telephone simply because the father objected but could have allowed
the testimony for good cause shown. For this reason alone, we reverse both orders
on appeal and remand on an expedited basis for a new trial to determine a
parenting plan for the parties’ youngest child. On remand, the court below shall
consider whether good cause exists to allow the mother and her witnesses to appear
by telephone.6 Any parenting plan entered by the court below shall address not
must still satisfy the good-cause standard. In determining whether
good cause exists, the trial court may consider such factors as the type
and stage of proceeding, the presence or absence of constitutionally
protected rights, the importance of the testimony to the resolution of
the case, the amount in controversy in the case, the relative cost or
inconvenience of requiring the presence of the witness in court, the
ability of counsel to use necessary exhibits or demonstrative aids, the
limitations (if any) placed on the opportunity for opposing counsel
and the finder of fact to observe the witness’s demeanor, the potential
for unfair surprise, the witness’s affiliation with one or more parties,
and any other factors the court reasonably deems material to weighing
the justification the requesting party has offered in support of the
request to allow a witness to testify by communications equipment
against the potential for prejudice to the objecting party. With the
advance of technology, the cost and availability of contemporaneous
video testimony may be considered by the court in determining
whether good cause is established for audio testimony.
6 While we do not mandate this result, we would be remiss were we not to note the
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only section 61.130017 of the Florida Statutes but also shall be supported by
detailed findings of fact and conclusions of law as to each of the factors
enumerated in section 61.13(3)(a)-(t) of the Florida Statutes.8 Furthermore, any fee
or cost award shall address the parties’ need and ability to pay and detail the
importance of such testimony which was addressed in Rose v. Ford, 861 So. 2d
490, 493 (Fla. 4th DCA 2003) (quoting Andrews v. Andrews, 624 So. 2d 391, 392
(Fla. 2d DCA 1993), where the court observed:
Decisions affecting child custody require a careful
consideration of the best interests of the child. § 61.13,
Fla. Stat. (1991). This court has previously discouraged
trial courts from using default as a sanction when dealing
with the sensitive issue of child custody. Chase v. Chase,
519 So. 2d 637 (Fla. 2d DCA 1987). In such cases, the
testimony of a child’s natural mother will almost always
aid the court in fairly determining the child’s best
interests. See Doane v. Doane, 279 So. 2d 46 (Fla. 4th
DCA 1973).
624 So. 2d at 392; see also McEwen [v.Rodriguez], 766 So. 2d
[316] at 317 [Fla. 4th DCA 2000].
7 Section 61.13001 of the Florida Statutes addresses parental relocation with a
child.
8 See Velazquez v. Millan, 963 So. 2d 852, 855 (Fla. 3d DCA 2007) (“[W]e
reverse the custody award and remand this matter for entry of a custody award
addressing all of the factors mandated by section 61.13 of the Florida Statutes.”);
see also Decker v. Lyle, 848 So. 2d 501, 503 (Fla. 2d DCA 2003) (confirming
either “the record or the final judgment must reflect that the custody determination
was made in the best interests of the child” and concluding as “neither the
transcript of the trial court’s oral pronouncement of its ruling nor the temporary
custody order (which merely incorporated by reference the trial court’s oral
pronouncement) addresses the best interests of the child. . . we must reverse and
remand the case for a further hearing”).
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amount of time, the service provided, and the hourly rate being awarded. Moya v.
Moya, 118 So. 3d 916, 918-19 (Fla. 3d DCA 2013) (quoting Rosen v. Rosen, 696
So. 2d 697, 700 (Fla. 1997), outlines the appropriate analysis in this regard:
Section 61.16 constitutes a broad grant of discretion, the operative
phrase being “from time to time.” The provision simply says that a
trial court may from time to time, i.e., depending on the circumstances
surrounding each particular case, award a reasonable attorney’s fee
after considering the financial resources of both parties. Under this
scheme, the financial resources of the parties are the primary factor
to be considered. However, other relevant circumstances to be
considered include factors such as the scope and history of the
litigation; the duration of the litigation; the merits of the respective
positions; whether the litigation is brought or maintained primarily to
harass (or whether a defense is raised mainly to frustrate or stall);
and the existence and course of prior or pending litigation.
Accord Dybalski v. Dybalski, 108 So. 3d 736, 738 (Fla. 5th DCA
2013).
Moya proceeds to clarify:
Additionally, Tullos v. Tullos, 37 So.3d 355, 357 (Fla. 2d DCA
2010), citing Rowe, explains:
[I]n computing an attorney fee, the trial judge should (1)
determine the number of hours reasonably expended on
the litigation; (2) determine the reasonable hourly rate for
this type of litigation; (3) multiply the result of (1) and
(2) [“the lodestar amount”]; and, when appropriate, (4)
adjust the fee on the basis of the contingent nature of the
litigation or the failure to prevail on a claim or claims.
Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145,
1151–52 (Fla.1985); Lanham v. Lanham, 528 So. 2d 80,
80 (Fla. 2d DCA 1988). Further, in dissolution actions
under section 61.16, Florida Statutes (2008), the trial
court must exercise its discretion “to provide justice and
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ensure equity between the parties.” Rosen v. Rosen, 696
So. 2d 697, 700 (Fla. 1997).
After determining the lodestar amount, the trial court
must consider the parties’ respective financial resources
and then assess other relevant circumstances including
the scope and history of the litigation, its duration, the
merits of the respective positions, whether the parties
bring or maintain the litigation primarily to harass or
present a defense mainly to frustrate or stall, and the
existence and course of prior or pending litigation. Id.Accord Campbell v. Campbell, 46 So. 3d 1221, 1222–23 (Fla. 4th
DCA 2010) (“The law is ‘well established that the trial court must set
forth specific findings concerning the hourly rate, the number of hours
reasonably expended and the appropriateness of reduction or
enhancement factors.’ Hoffay v. Hoffay, 555 So. 2d 1309, 1310 (Fla.
1st DCA 1990) ... Where there is nothing in the trial court’s order that
allows the appellate court to discern whether any of the above factors
were considered in determining a reasonable attorney's fee, a fee
award simply taking the amount charged by the attorney and
determining it to be reasonable is improper and an abuse of
discretion.”).
Moya, 118 So. 3d at 918-19.
The orders on review are, therefore, reversed and remanded for an expedited
hearing in accordance with the analysis outlined above.
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