Munoz v. Munoz , 2017 Fla. App. LEXIS 1300 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
AIROL MUNOZ, )
)
Appellant, )
)
v. ) Case No. 2D16-1604
)
PAULINA MUNOZ, )
)
Appellee. )
)
Opinion filed February 3, 2017.
Appeal from the Circuit Court for
Hillsborough County, Nick Nazaretian,
Judge.
Lawrence J. Hodz of Cortes Hodz Family
Law & Mediation, P.A., Tampa,
for Appellant.
Jessica C. Tien of Tien Law Group,
Tampa, for Appellee.
LUCAS, Judge.
Airol Munoz, the former husband, appeals the circuit court's orders
modifying timesharing and establishing child support and arrears concerning his minor
children, A.M. and C.M. Mr. Munoz came before the circuit court on his supplemental
petition to modify a default final judgment entered on January 8, 2008, which had
awarded Paulina Munoz, his former wife, sole parental responsibility and timesharing
with A.M. and C.M.1 In response to the modification petition, Ms. Munoz filed a petition
to establish child support and retroactive child support against Mr. Munoz. A trial was
held on both petitions before the circuit court on February 5, 2016. The court entered its
orders on March 2, 2016, and Mr. Munoz timely appealed.
Although the absence of a transcript from the trial prevents us from
addressing many of the issues Mr. Munoz raises on appeal, because there are errors
that are plain on the face of the order modifying timesharing, we are compelled to
reverse those portions of the circuit court's order. See Ivanovich v. Valladarez, 190 So.
3d 1144, 1147 (Fla. 2d DCA 2016) (citing Soto v. Soto), 974 So. 2d 403, 404 (Fla. 2d
DCA 2007). The progressive, three-phase daytime timesharing schedule the circuit
court fashioned to reintegrate Mr. Munoz in his daughters' lives improperly vests the
decision-making authority as to when Mr. Munoz can proceed into the second and third
phases solely with a therapist. The order also gives Ms. Munoz sole discretion, at any
time, to choose to replace this therapist, which was also an improper delegation of the
court's authority. Third, and perhaps most troubling, the order fails to resolve whether
Mr. Munoz will ever be entitled to overnight, unrestricted timesharing with his minor
children, if or when he completes the third phase of this schedule. Taken together,
these errors, which are clear from the face of the order, constituted reversible error.
As we explained in Grigsby v. Grigsby, 39 So. 3d 453, 456-57 (Fla. 2d
DCA 2010):
"Although termination of visitation rights is disfavored, . . .
the trial court has discretion to restrict or deny visitation
when necessary to protect the welfare of the children."
1
Mr. Munoz's motion to set aside that default judgment has not been heard
by the circuit court. Accordingly, we express no opinion as to its merits.
-2-
Hunter v. Hunter, 540 So. 2d 235, 238 (Fla. 3d DCA 1989).
However, when the court exercises this discretion, it must
clearly set forth the steps the parent must take in order to
reestablish time-sharing with the children. Id.; see also Ross
v. Botha, 867 So. 2d 567, 571 (Fla. 4th DCA 2004).
Essentially, the court must give the parent the key to
reconnecting with his or her children. An order that does not
set forth the specific steps a parent must take to reestablish
time-sharing, thus depriving the parent of that key, is
deficient because it prevents the parent from knowing what
is expected and prevents any successor judge from
monitoring the parent's progress. See Ross, 867 So. 2d at
571.
....
"Moreover, it is the trial court's responsibility to ensure that
an appropriate relationship is maintained between a parent
and his or her children, and that responsibility cannot be
abdicated to any parent or expert." McAllister v. Shaver, 633
So. 2d 494, 496 (Fla. 5th DCA 1994); see also Letourneau v.
Letourneau, 564 So. 2d 270, 270 (Fla. 4th DCA 1990).
Thus, a reasonable time-sharing schedule based on the
parent's individual circumstances must be created based on
the exercise of the court's discretion, not the other parent's.
Letourneau, 564 So. 2d at 270.
Here, the order modifying timesharing violated the strictures of Grigsby, 39 So. 3d at
456-457; see also Perez v. Fay, 160 So. 3d 459, 466 (Fla. 2d DCA 2015).
Accordingly, we reverse those portions of the order modifying timesharing
that delegated decision-making to a therapist of Ms. Munoz's sole approval, and that
failed to describe what, if any, timesharing Mr. Munoz would be entitled to upon
completion of the third phase. On remand, the court shall render an order on Mr.
Munoz's petition consistent with this opinion and that sets forth requisite findings and
rulings concerning what, if any, timesharing Mr. Munoz will have with A.M. and C.M.
upon completion of any reunification schedule the court may fashion. In all other
respects, we affirm the orders below.
-3-
Affirmed in part; reversed in part; and remanded.
NORTHCUTT and KHOUZAM, JJ., Concur.
-4-