Herman v. Herman , 2015 Fla. App. LEXIS 9232 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed June 17, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-296
Lower Tribunal No. 12-14778
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Dawn M. Herman,
Appellant,
vs.
Brad Herman,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mindy S.
Glazer, Judge.
Abramowitz and Associates and Evan L. Abramowitz, for appellant.
Greene Smith and Cynthia L. Greene, for appellee.
Before SUAREZ, LAGOA and EMAS, JJ.
EMAS, J.
Appellant/Mother Dawn Herman (“Mother”) appeals from a Supplemental
Final Judgment (the “Supplemental Judgment”) contending that the trial court
abused its discretion on the issues of timesharing schedule, parental responsibility
and private education. We affirm in all respects, save for two modifications to the
Supplemental Judgment, one as agreed to by Appellee and a second to correct a
scrivener’s error.
Mother and Appellee/Father Brad Herman (“Father”) were married in 2005
and had a son in 2008 (“the Child”). After the parties had been married for
approximately six years, dissolution proceedings commenced. On April 4, 2013,
less than a year after the case began, the parties entered into a Mediated Settlement
Agreement (“MSA”) resolving all issues between them other than those dealing
with parental responsibility and timesharing. On December 20, 2013, the trial
court entered a Final Judgment of Dissolution of Marriage ratifying the MSA and
reserving jurisdiction on the remaining issues. On January 5, 2015, the parties
appeared before the court for the final hearing pertaining to the parenting plan,
timesharing and related issues.
Following the hearing, the trial court entered a Supplemental Judgment,
adopting the equal timesharing schedule suggested by Father, awarding the parties
shared parental responsibility, and denying Mother’s request for ultimate decision-
making authority. The court also ordered that the Child attend public school
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commencing the 2015-16 school year, unless Mother and Father could mutually
agree to enroll the Child in private school. Finally, though the Supplemental
Judgment specifically states that the parties have equal timesharing with the Child,
under the “Designation for Other Legal Purposes” section, the Supplemental
Judgment provides that the Child is scheduled to reside the majority of the time
with the Father.
We find no error in the trial court’s awarding shared parental responsibility
to Mother and Father. Section 61.13(2)(C)(2), Florida Statutes (2015), states “[t]he
court shall order that the parental responsibility for a minor child be shared by both
parents unless the court finds that shared parental responsibility would be
detrimental to the child.” The trial court, as fact finder, evaluated the evidence
presented and concluded that both Mother and Father are equally capable of
providing for the Child and that both love the Child and consider his needs before
their own. The court articulated its findings in the Supplemental Judgment, which
were supported by competent substantial evidence. We find no abuse of discretion
in ordering that parental responsibility be shared. We also affirm, without further
discussion, the timesharing schedule established by the trial court in the
Supplemental Judgment.
With respect to the Child’s education, the Supplemental Judgment ordered
that the Child attend public school beginning in the 20151 school year “unless the
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Mother and Father mutually agree to enroll the child in private school.” The MSA
specifically stated:
As and for child support commencing May 1, 2013 and terminating on
the child’s attaining majority, the Husband shall pay the sum of
$2,900 per month on the first of every month. Failure to timely pay
shall result in the entry of an income deduction order.
(b) Husband shall further pay for the following for the child:
...
(e) Montessori School tuition and registration for 2013 and 2014 and
75% of such tuition for 2015, the Wife to pay the balance of 25%....
(g) The Husband shall provide the sum of $100,000 and the Wife the
sum of $50,000 to be deposited into an account to be created in the
name of the parties jointly for the benefit of the child’s educational
costs from middle school through high school. This account shall be
funded no later than May 15, 2013. Any unused funds shall be paid to
the child at his age 25. If any shortage, neither party shall have any
obligation for additional funding.
Mother acknowledges that the MSA was silent with respect to private school
following the completion of the 2015-16 school year, but interprets this silence to
mean that the Child should continue in private school for the remainder of the
Child’s elementary education.2 We disagree. By the terms of the MSA, the parties
agreed only that the Child would attend private school through the 2015-16 school
1 As discussed infra, this was a scrivener’s error; consistent with the MSA, the
Supplemental Judgment should have provided that the Child would attend
Montessori School through the 2015-16 school year and attend public school
beginning in the 2016 school year.
2 The Child will have completed first grade by the end of the 2015-16 school year.
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year. There was no agreement that the Child would attend private school
thereafter. While it is true that the MSA requires Mother and Father to jointly fund
an account (totaling $150,000) “for the benefit of the child’s educational costs
from middle school through high school,” this provision contains no specific
agreement or understanding that the Child would attend private school during the
middle and high school years, fails to address schooling for the rest of the Child’s
elementary school years (i.e., after the 2015-16 school year, when the Child will
have completed the first grade), and fails to express that the monies placed in the
joint account would be used for the sole purpose of private education for the Child.
This provision stands in stark contrast to the immediately preceding paragraph
which stated, plainly and unambiguously, that the Child would attend Montessori
School for the 2013, 2014, and 2015 school years. The MSA’s silence regarding
private schooling following the end of the 2015-16 school year can only
reasonably be construed to mean that the parties did not resolve the issue of
whether the Child would attend public or private school at the end of the 2015-16
school year.
Further, no financial information was presented to the Court or relied upon
by either party, and the court therefore could not make the requisite findings
necessary to support an extension of the private school expense obligation. See
Musser v. Watkins, 752 So. 2d 141, 142 (Fla. 2d DCA 2000). In light of this, and
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given that the trial court’s determination was supported by competent, substantial
evidence, there was no abuse of discretion in ordering that the Child attend public
school during that period of time not agreed upon under the terms of the MSA.
However, and as Father has properly conceded, the Supplemental Judgment
contains a scrivener’s error. The Supplemental Judgment directs that the Child
“shall attend public school commencing the 2015-16 school year. . . .” However,
the terms of the MSA expressly contemplate that the Child will continue to attend
Montessori school during that time. The Supplemental Judgment must therefore
be corrected to reflect that the Child “shall attend public school commencing the
2016-17 school year. . . .”3
Mother also contends that the Parenting Plan, incorporated into the
Supplemental Judgment, contains an improper and inaccurate designation that the
Child will reside with Father for a majority of the time. The challenged language
provides:
X. DESIGNATION FOR OTHER LEGAL PURPOSES
The child named in this Parenting Plan is scheduled to reside the
majority of the time with the Father. This majority designation is
SOLELY for purposes of all other state and federal laws that require
such a designation. This designation does not affect either parent’s
rights and responsibilities under this Parenting Plan.
(Underscore emphasis added; bold emphasis in original.)
3The Parenting Plan, incorporated into the Supplemental Judgment, should also be
amended to reflect this correction.
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The provision itself explicitly provides that it does not affect the parties’
rights under the Supplemental Judgment. Father asserts that this provision was
included in the Parenting Plan because Florida no longer recognizes the concept of
“custody,” and the designation of a majority residential or custodial parent is made
for the sole purpose of satisfying certain laws whose enforcement requires such a
designation. See, e.g., 28 U.S.C. § 1738A (2015) (Parental Kidnaping Prevention
Act). Given the limiting language contained in this paragraph, it is difficult to
conceive how this designation is inconsistent with the judgment itself, results in
prejudice to Mother, or is otherwise erroneous. Nonetheless, and indicative of the
absence of prejudice from inclusion of this provision in the Parenting Plan, Father
has commendably agreed to amend the designation to reflect that the Child “is
scheduled to reside the majority of the time with the Mother.” We therefore
remand on this issue with instructions to the trial court to make this stipulated
modification to the Parenting Plan.
We affirm the Supplemental Judgment in all respects, but remand for the
limited purpose of (i) amending the Supplemental Judgment and Parenting Plan to
correctly reflect that the Child “shall attend public school commencing the 2016-17
school year. . . ;” and (ii) amending the “Designation for Other Legal Purposes”
section of the Parenting Plan to reflect that the Child “is scheduled to reside the
majority of the time with the Mother.”
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