Bonnie E. Daniels v. Justin Caparello , 249 So. 3d 760 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2718
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BONNIE E. DANIELS,
Appellant,
v.
JUSTIN CAPARELLO,
Appellee.
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On appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.
June 18, 2018
ON MOTION FOR CLARIFICATION, FOR REHEARING,
FOR REHEARING EN BANC, AND FOR CERTIFICATION
WETHERELL, J.
Appellant’s motions for rehearing, rehearing en banc, and
certification are denied, but her motion for clarification is granted
in part. The opinion issued on April 20, 2018, is withdrawn and
the following opinion is substituted in its place.
Appellant, the mother, seeks review of a nonfinal order
establishing the timesharing schedule for the parties’ child. We
affirm for the reasons that follow.
In 2015, the parties entered into a mediated settlement
agreement to resolve the paternity action filed by Appellee, the
father, concerning the parties’ then two-year-old child. The
agreement—which was “ratified, confirmed, and approved” in the
final judgment entered by the court in the paternity action—
provided for shared parental responsibility and established a
timesharing schedule for the father that gradually increased to
“50-50/equal time sharing . . . beginning June 1, 2017, and
thereafter.” The agreement did not specify how the 50-50
timesharing would be structured, but rather provided that the
parties would mediate that issue in early 2017 if they were
unable to agree on a schedule.
In May 2017, after an unsuccessful mediation, the father
filed a motion to enforce the 50-50 timesharing requirement in
the mediated settlement agreement and to establish a schedule
for the 50-50 timesharing. At the hearing on the motion, the
judge stated his intent to order a “default week-on, week-off”
timesharing schedule, but before that ruling was memorialized in
a written order, the parties stipulated to a different schedule.
The order entered by the trial court adopted the schedule
stipulated to by the parties.
In seeking to reverse the trial court’s order, the mother
essentially raises three arguments. We find each argument to be
without merit.
First, we summarily reject the mother’s argument that the
trial court erred in ordering 50-50 timesharing effective June 1,
2017, because as the trial court found, the clear and
unambiguous language of the mediated settlement agreement
provides for 50-50 timesharing from that date forward. By its
terms, the only issue the agreement left open for subsequent
litigation was “how that 50-50 parenting time schedule should be
structured.”
Second, with respect to the specific timesharing schedule
established by the trial court, we agree with the father that the
mother invited any error and cannot challenge that schedule on
appeal because she stipulated to it. See Mohammad v.
Mohammad, 371 So. 2d 1070, 1071 (Fla. 1st DCA 1979); Duffy v.
2
Duffy, 247 So. 2d 493, 493 (Fla. 2d DCA 1971); Shenk v. Shenk,
126 So. 2d 286 (Fla. 3d DCA 1961).
Finally, we reject the mother’s argument that the trial court
erred by not expressly finding that the stipulated-to timesharing
schedule was in the child’s best interest. This argument was not
preserved for appellate review because the mother never
presented it to the trial court for a ruling. See Hentze v. Denys,
88 So. 3d 307, 311 (Fla. 1st DCA 2012); LaCoste v. LaCoste, 58
So. 3d 404, 405 (Fla. 1st DCA 2011); Owens v. Owens, 973 So. 2d
1169 (Fla. 1st DCA 2007). We recognize that the mother argued
at the hearing that “[t]here’s a plethora of potential 50/50
schedules out there [a]nd the Court has to determine which of
those schedules is in the best interest of the child.” However,
after the trial court entered the order adopting the timesharing
schedule stipulated to by the parties post-hearing, the mother did
not file a motion for reconsideration or otherwise apprise the trial
court that it still needed to find the stipulated-to schedule to be in
the child’s best interest. Moreover, because the mother does not
argue on appeal that the specific schedule established by the trial
court (which she agreed to) is not in the child’s best interest, 1 we
decline to hold that the trial court’s failure to make a best
interest finding is fundamental error in this case.
Accordingly, we affirm the order establishing the 50-50
timesharing schedule for the parties’ child.
AFFIRMED.
WOLF and ROBERTS, JJ., concur.
1 We did not overlook the mother’s argument that 50-50
timesharing in general is not in the child’s best interest, but that
argument is foreclosed in this proceeding by the finding in the
final judgment in the paternity action that the mediated
settlement agreement requiring 50-50 timesharing effective June
1, 2017, “promotes the minor child’s best interests.” Thus, any
challenge to the 50-50 timesharing established by the mediated
settlement agreement and implemented in the order affirmed in
this appeal will need to be pursued in a separate modification
proceeding.
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Jerry L. Rumph, Jr. of Sweeting & Rumph, P.A., Tallahassee, for
Appellant.
Robert A. McNeely of Messer Caparello, P.A., Tallahassee, for
Appellee.
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