Melissa Jean Thomas v. Henrithson Joseph ( 2019 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D19-0102
    _____________________________
    MELISSA JEAN THOMAS,
    Appellant,
    v.
    HENRITHSON JOSEPH,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Columbia County.
    Paul S. Bryan, Judge.
    September 18, 2019
    BILBREY, J.
    Melissa Jean Thomas, the former wife, appeals the amended
    order on the supplemental petition to modify parenting plan filed
    by Henrithson Joseph, the former husband. The issue presented
    on appeal is whether shared parental responsibility and
    timesharing between the parties as established by a final
    judgment of dissolution of marriage may thereafter be modified
    without findings that the modification is in the best interests of
    the child. Although the former wife is not the child’s biological
    mother, we hold that under the circumstances of this case, the
    amended order is erroneous on its face, and it must be reversed
    and remanded for further proceedings.
    Background
    In 2008, during the marriage of Ms. Thomas and Mr. Joseph,
    they adopted I.J.     Also during the marriage, Mr. Joseph
    purportedly fathered Z.J. Unlike I.J., no record evidence was
    presented during the dissolution or the modification that Z.J. was
    adopted by Ms. Thomas. It was established during the dissolution
    that Z.J.’s biological mother was a relative of Ms. Thomas and that
    shortly after Z.J.’s birth, the birth mother voluntarily gave Z.J. to
    Ms. Thomas and Mr. Joseph to raise as their own. Z.J.’s birth
    certificate listed no father but listed the child’s surname as
    “Joseph.”
    The marriage of Ms. Thomas and Mr. Joseph was dissolved by
    the final judgment of dissolution entered December 26, 2012. In
    the final judgment, the trial court found that the parties agreed
    that Z.J. “is the biological child of the Husband, but is not the
    biological child of the Wife.” The court recognized the parties’
    agreement “that the children should remain together and that the
    parties will have shared parental responsibility [of both I.J. and
    Z.J.], with the Wife having majority timesharing with both
    children and the Husband having timesharing with them every
    other weekend.”
    The court provided Mr. Joseph “timesharing with the children
    every other weekend” and as the parties agreed for holidays. The
    final judgment specified how exchanges of the children would take
    place and provided that more specific orders regarding
    timesharing could be sought by either party. 1 Finally, the court
    ordered that “[t]he parties may modify as they mutually agree” but
    if they could not agree, “the timesharing arrangement ordered
    herein shall control.” No appeal was taken from the final judgment
    of dissolution of marriage.
    In May 2018, Mr. Joseph filed his supplemental petition to
    modify parental responsibility. He alleged certain changes in
    circumstances since the entry of the final judgment of dissolution,
    including his superior ability to provide a stable and comfortable
    home for the children and his concern about the living conditions
    and care Ms. Thomas provided. Based on these allegations of
    1  The final judgment also denied any authority over the
    children for an unrelated third party, Mr. Joseph’s girlfriend. This
    person was not a party to the dissolution action, the modification
    proceeding, or this appeal.
    2
    changed circumstances, Mr. Joseph sought sole parental authority
    and timesharing of Z.J., and at least equal timesharing with I.J.
    In her response, Ms. Thomas denied Mr. Joseph’s allegations
    and specifically denied that she failed to properly care for the
    children. In that response Ms. Thomas also “affirmatively asserts
    that the Former Husband is not the biological father of the minor
    child [Z.J.].” 2
    The court heard Mr. Joseph’s supplemental petition to modify
    in October 2018. The hearing was not transcribed, but a
    stipulation of the evidence was prepared and approved for this
    appeal. See Fla. R. App. P. 9.200(b)(5). The approved stipulated
    evidence included Z.J.’s date of birth; that his “biological mother”
    was related to Ms. Thomas “in some way” but was now deceased;
    that Z.J.’s birth certificate lists his surname as “Joseph;” and that
    Z.J. lived with Ms. Thomas and Mr. Joseph beginning shortly after
    the birth in 2008, and resided primarily with Ms. Thomas after the
    final judgment of dissolution was entered in 2012. The stipulated
    testimony included Mr. Joseph’s acknowledgment that he had
    denied he was Z.J.’s biological father in two court filings
    subsequent to the final judgment (in child support proceedings)
    and that he is not actually Z.J.’s biological father. However, he
    “accepts the determination that he is the biological father.”
    In its amended order on the supplemental petition to modify
    the parenting plan, the trial court found “an unforeseen
    substantial change in circumstances has been shown” but did not
    elaborate. See § 61.13(2)(c), Fla. Stat. (2018). The court also found
    that the final judgment “clearly shows” that Ms. Thomas is not a
    “parent” of Z.J. and, while there was no DNA evidence of
    parenthood, “no one other than [Mr. Joseph] has established any
    legal/court-ordered right to the child.” The court ordered that Mr.
    Joseph was Z.J.’s “only living legal parent” and thus “may exercise
    all parental authority regarding [Z.J.], including where he resides
    and with whom.” Accordingly, the amended order eliminated any
    parental status, parental responsibility, and timesharing for Ms.
    2Prior to the hearing on Mr. Joseph’s supplemental petition
    to modify, Ms. Thomas filed a motion for paternity testing. The
    motion was never addressed by the trial court.
    3
    Thomas which had previously been established in the final
    judgment of dissolution of marriage. The court did not find or set
    out in its amended order any determination that it was in the
    child’s best interests to modify the parental responsibility and
    timesharing provisions in this manner six years after entry of the
    final judgment. 3 See § 61.13(3), Fla. Stat. (2018).
    Ms. Thomas filed a timely motion for rehearing on grounds
    that the court had failed to acknowledge her court-ordered shared
    parental responsibility and majority parenting time with both
    children, as provided in the final judgment of dissolution. She also
    asserted that the court failed to apply the presumption of
    legitimacy for children born during a marriage. Finally, she
    argued that the trial court failed to determine and make findings
    that modification was in the best interests of Z.J. See § 61.13(2)(c),
    Fla. Stat. Rehearing was denied and this appeal followed.
    Analysis
    Ms. Thomas claims that the trial court failed to recognize her
    parental status under the final judgment of dissolution and
    modified the terms of the final judgment without a determination
    that the modification is in the best interests of the child. She also
    argues that she was deprived of equal protection of law when the
    court, on modification, did not apply the presumption that would
    apply if Z.J. had been her biological child born during the
    marriage. See Department of Health & Rehab. Services v. Privette,
    
    617 So. 2d 305
    (Fla. 1993) (holding if a child is born during a
    marriage, the law presumes that the husband of the wife and
    mother is the child’s father). Because we are compelled to reverse
    on the first issue, we need not address the constitutional issue. 4
    3 In fact, the amended order expressed concern that Z.J. and
    I.J. would not reside together and stated that the children
    remaining together would be in their best interest.
    4 We do note that “paternity and legitimacy are related, but
    nevertheless separate and distinct concepts.” Daniel v. Daniel, 
    695 So. 2d 1253
    , 1254 (Fla. 1997).
    4
    “Generally, the failure to provide a transcript or a proper
    substitute precludes consideration of the merits of a challenge to a
    circuit court’s decision to modify” parenting responsibilities.
    Kilgore v. Kilgore, 
    729 So. 2d 402
    , 405 (Fla. 1st DCA 1998).
    “However, even in the absence of a transcript, an appellate court
    can reverse in those instances when the trial court makes an error
    of law on the face of the judgment.” Smith v. Wallace, 
    249 So. 3d 670
    , 671 (Fla. 2d DCA 2017).
    The face of the amended order on the supplemental petition
    to modify does state the court’s finding that “an unforeseen
    substantial change in circumstances has been shown,” and the
    absence of a transcript precludes appellate review of this finding
    of fact. However, the amended order contains no mention of Z.J.’s
    welfare, best interests, and circumstances of the family. No
    reference to section 61.13 or the statutory factors listed in section
    61.13(3)(a) – (t) appears in the order. Ms. Thomas’ motion for
    rehearing asserted that the final judgment of dissolution was
    never appealed or otherwise set aside, that it established her
    “rights as a parent,” that it established her majority timesharing,
    and that the court had failed to analyze whether modification
    served the best interests of Z.J. Accordingly, the issue on appeal
    was preserved. See Owens v. Owens, 
    973 So. 2d 1169
    (Fla. 1st DCA
    2007) (affirming where appellate challenge to adequacy of trial
    court’s findings in final judgment not preserved by motion for
    rehearing below).
    The trial court’s findings in its amended order — that no
    person other than Mr. Joseph had any “legal/court-ordered” rights
    regarding Z.J. and that the final judgment of dissolution “clearly
    shows that [Ms. Thomas] is not the parent” of Z.J. — are in direct
    conflict with the terms of the final judgment. The final judgment
    established that Mr. Joseph and Ms. Thomas “shall have shared
    parental responsibility for the minor children” and Ms. Thomas
    had “majority timesharing with the children.”
    By using these terms in the final judgment, Ms. Thomas was
    established as a parent for the purpose of the final judgment. See
    § 61.046(17), Fla. Stat. (2012) (defining “shared parental
    responsibility” to mean “a court-ordered relationship in which both
    parents retain full parental rights and responsibilities with
    5
    respect to their child and in which both parents confer with each
    other so that major decisions affecting the welfare of the child will
    be determined jointly”); § 61.046(17) (defining “time-sharing
    schedule” as the time “that a minor child will spend with each
    parent”). There are various ways non-parents can have “custody”
    of a child. See, e.g., § 39.402, Fla. Stat. (2019) (allowing a child
    believed to be dependent to be sheltered in the custody of a non-
    parent); § 751.05, Fla. Stat. (2019) (allowing a non-parent to be
    awarded temporary custody of child). But under its statutory
    definition, only a parent can have “shared parental responsibility”
    or “time sharing” as the final judgment granted Ms. Thomas with
    Z.J. 5
    It may well have been error for the final judgment, in
    effectuating the agreement of the parties, to deem Ms. Thomas a
    parent of Z.J. But the final judgment was never appealed and
    there is no indication in the record that any party ever challenged
    its validity until Mr. Joseph’s petition for modification was filed
    five and a half years later. As stated in Wade v. Hirschman, 
    903 So. 2d 928
    , 932-33 (Fla. 2005), “After the trial court enters the
    original final judgment decree, it is res judicata of the facts and
    circumstances at the time the judgment became final.” Even a
    potentially erroneous judgment is entitled to res judicata effect.
    See Fahey v. Fahey, 
    213 So. 3d 999
    (Fla. 1st DCA 2016).
    Ms. Thomas correctly relies on the final judgment of
    dissolution as the status quo for these parties’ parental
    responsibilities and timesharing with Z.J. until properly modified.
    Because it is res judicata of the rights and obligations of the parties
    as of the time it became final, the final judgment is equally
    effective to establish Mr. Joseph’s status as Z.J.’s father and Ms.
    Thomas’ parental status with shared parental responsibility and
    majority timesharing.         Any modification of the parental
    responsibilities and time-sharing schedule in the judgment of
    dissolution must comply with the requirements of section 61.13(3),
    Florida Statutes (2018).
    5   As between parents, consideration of “custody” was
    eliminated from Florida statutes in 2008. See Ch. 2008-61, Laws
    of Florida.
    6
    Because the order on appeal disregarded the res judicata
    effect of the final judgment and modified the parental
    responsibilities and parenting plan/timesharing established in the
    final judgment without any findings on the factors set out in
    section 61.13(3)(a) – (t), the order must be reversed and remanded
    for further proceedings. See D.M.J. v. A.J.T., 
    190 So. 3d 1129
    (Fla.
    2d DCA 2016); Holland v. Holland, 
    140 So. 3d 1155
    (Fla. 1st DCA
    2014). On remand, we note the “discretion afforded to trial courts
    in modification is narrower than in initial time-sharing
    determinations.” Ness v. Martinez, 
    249 So. 3d 754
    , 757 (Fla. 1st
    DCA 2018).
    REVERSED and REMANDED.
    ROBERTS and WINOKUR, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Jeffrey A. Conner of Three Rivers Legal Services, Inc., Lake City,
    for Appellant.
    R. Pierce Kelley, Jr., Fort White, for Appellee.
    7