DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RAHUL SCUDDER,
Appellant,
v.
FREEDA MARY SCUDDER,
Appellee.
No. 4D19-2288
[May 6, 2020]
Appeal of nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Maxine Cheesman, Judge; L.T. Case
No. 502018DR003667.
Stacy N. Beaulieu-Fawcett of Beaulieu-Fawcett Law Group, P.A., Delray
Beach, for appellant.
Herman H. Tarnow of Tarnow & Associates Family Lawyers, PLLC,
Naples, for appellee.
MAY, J.
The former husband appeals a final judgment that set timesharing,
gave the former wife primary custody, granted her request to relocate the
children to New York, and addressed other issues. The former husband
argues the circuit court erred by:
(1) exceeding the scope of an order transferring the case from
the Twentieth Judicial Circuit to the Fifteenth Judicial
Circuit;
(2) changing the children’s primary residence and providing
for unequal timesharing;
(3) failing to strike the social investigator’s testimony or allow
the former husband to secure an expert;
(4) refusing to allow the former husband rebuttal time at trial;
(5) reserving jurisdiction to address financial issues
concerning the children;
(6) failing to address all section 61.13 factors;
(7) allocating all travel expenses to the former husband; and
(8) dictating the method of communication between the former
husband and children.
The former wife admits the judgment contains some minor errors and
omissions, but suggests the whole judgment need not be reversed. We
agree with the former wife. We affirm on issues 1-5; we reverse and
remand on issues 6-8, and to correct a scrivener’s error on issue 2.
The parties were married in India in 2001 and have three children.
While living in the United Arab Emirates (“UAE”), the former husband and
wife reached a marital settlement agreement (“MSA”) that included child
support, some financial issues related to the children, and a parenting
plan that gave most of the timesharing to the former husband. The former
husband later filed for dissolution of the marriage in the Twentieth Judicial
Circuit (Collier County). The circuit court entered a final judgment
dissolving the marriage and approving the MSA and parenting plan.
The former wife appealed. The Second District reversed and remanded
the case, deciding the Twentieth Judicial Circuit failed to afford the parties
an evidentiary hearing on jurisdiction. Scudder v. Scudder,
228 So. 3d
703 (Fla. 2d DCA 2017). The parties then stipulated to some issues. In
March 2018, the circuit court entered the Agreed Final Order on Former
Wife’s Motion to Vacate the Final Judgment of Dissolution of Marriage and
Final Order on Parenting Plan After Remand by the Second District Court
of Appeal and Order Changing Venue to Palm Beach County, Florida
(“agreed order”).
The circuit court determined it had jurisdiction over the dissolution of
marriage and approved the MSA, but concluded it did not have jurisdiction
over the minor children, who had been residing with the former husband
in Palm Beach County since December 2016. The court vacated provisions
of the final judgment addressing the parenting plan and transferred the
case to the Fifteenth Judicial Circuit.
The former husband filed a Petition to Determine Parenting Plan and
Child Support in the Fifteenth Judicial Circuit. He asked the court to
adopt the May 2016 Parenting Plan executed in the UAE, and to add a
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provision to prevent removal of the children from the U.S. without consent
of the other parent. Alternatively, he asked the court to create a parenting
plan in the best interest of the children. He specifically asked the court to
consider the former wife’s removal of the children from the UAE in violation
of the parenting plan and requested child support.
The former wife filed an answer and counter-petition. She asked the
circuit court to determine custody, a parenting plan, child support, and to
permit relocation of the children to New York. She argued the agreed order
from the Twentieth Judicial Circuit vacated the existing parenting plan
and provided for further proceedings to be considered as an initial
proceeding. She alleged the children suffered emotional abuse due to the
former husband’s conduct. She contended the MSA was coerced and
involuntary because she did not have counsel in the UAE, and the former
husband pressured her with threats about the UAE’s penalty for
adultery—death.
She alleged the former husband failed to provide her with information
about the children’s schools, extra-curricular activities, and medical care.
He occasionally refused her visitation. She claimed the former husband
hit the oldest child and accused her of abusing him and being a threat to
her brothers.
The parties agreed to the appointment of a child custody investigator to
conduct a social investigation of the parents and children. The social
investigator filed his report and recommendation.
On the third day of trial, the former wife called the social investigator
as a witness. The former husband attempted to impeach the investigator
with his deposition testimony, but the investigator had not reviewed and
signed his deposition before trial. The court sustained the former wife’s
objection.
The day after the trial concluded, the former husband moved to reopen
the case for additional evidence or to proffer that based upon his inability
to fully cross-examine the social investigator. The former wife agreed to
admit the deposition into evidence. The circuit court reopened the case to
allow the former husband to cross-examine the investigator.
Before the trial resumed, the former husband moved to strike the
investigator’s testimony or to remove or disqualify him. Alternatively, he
requested to call his own rebuttal expert. He argued the investigator’s
evaluation was not impartial as required by professional standards. The
circuit court denied those motions.
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The circuit court entered a “Final Judgment on Petition for Parenting
Plan and Child Custody and on Counter-petition for Initial Custody,
Parenting Plan, Child Support and Relocation.” The court awarded the
former wife 70.5% of the timesharing and granted her request to relocate
to New York. The court reserved jurisdiction to address child support and
other financial issues related to the children.
The former husband now appeals. He raises eight issues. We affirm
five of them, three without further comment. We reverse the three
remaining issues, which require a remand for further proceedings.
• Whether the Fifteenth Judicial Circuit exceeded its authority
based on the agreed order? No.
In his first issue, the former husband argues the agreed order
transferring the case limited the scope of the proceedings to child custody
and timesharing issues. The former wife responds that the order permitted
the Fifteenth Judicial Circuit to determine all issues related to the children
in an original proceeding. The agreed order states in part:
Any further proceedings regarding the minor children and on
the issue of whether the Parenting Plan executed by the
Parties on May 11, 2016, shall be considered an initial
proceeding rather than a modification proceeding. However,
based upon the Stipulation of Settlement, this Court shall
adopt the Parties’ Parenting Plan dated May 11, 2016, without
prejudice to the Former Wife asserting claims that the
Parenting Plan should be vacated on any grounds she would
assert, other than subject matter jurisdiction. Therefore, the
Parenting Plan shall be in full force and effect, until the Court
in Palm Beach County, Florida either adopts, vacates, or
modifies the Parenting Plan.
***
Any further proceeding addressing timesharing, a Parenting
Plan, and all other issues properly addressed under the
UCCJEA shall be brought in Palm Beach County, Florida.
While not perfectly worded, the order states the children’s issues would
be considered as an initial proceeding rather than a modification
proceeding. The Fifteenth Circuit Court interpreted the order precisely
this way. And we see no error in it doing so. In fact, the Twentieth Judicial
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Circuit had no jurisdiction to decide the children’s issues. The Fifteenth
Circuit correctly started from a clean slate.
The circuit court used a model schedule for parents living in separate
states in determining the time-sharing. The evidence supported the
court’s decision. However, as the former wife concedes, the judgment
includes a typographical error. The judgment gives 108 overnights to the
former husband and 157 to the former wife. The court apparently meant
257 overnights to the former wife as it awarded 70.5% of the time to her.
Upon remand, the court can correct this scrivener’s error.
• Whether the circuit court erred in reserving jurisdiction to
address child support and other child-related financial
issues? No.
Because some of these issues were addressed in the MSA, the former
husband argues the circuit court erred in reserving jurisdiction. The MSA
provided in part: “The appropriate party shall pay child support pursuant
to Florida Child Support Statute.” It also stated that the former husband
would provide the children’s health insurance and the parties would share
uncovered medical expenses.
The former wife argues that all child-related issues were vacated by the
circuit court for the Twentieth Judicial Circuit. Therefore, the Fifteenth
Judicial Circuit correctly reserved jurisdiction to address the child-related
financial issues. The former husband replies that only child custody
issues remained for the Fifteenth Judicial Circuit to determine. We agree
with the former wife.
The circuit court properly reserved jurisdiction because the change in
custody and time-sharing necessarily requires a review of child support
and other child-related financial issues. This does not however prevent
the former husband from arguing that the MSA applies or the former wife
from arguing she entered the MSA under duress.
• Whether the parenting plan fails to address all the
requirements of section 61.13, Florida Statutes? Yes.
Both parties agree that the parenting plan fails to address all of the
requirements of section 61.13(2)(b), Florida Statutes. A parenting plan
that does not meet these requirements is legally insufficient. Ford v. Ford,
153 So. 3d 315, 320 (Fla. 4th DCA 2014). We must therefore reverse and
remand the case to the circuit court to complete the parenting plan.
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We disagree with the former husband however that Magdziak v.
Sullivan,
185 So. 3d 1292 (Fla. 5th DCA 2016), and Munroe v. Olibrice,
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So. 3d 985 (Fla. 4th DCA 2012), control. In both of those cases, the circuit
court failed to provide any parenting plan. As argued by the former wife,
we find our decision in Schoonmaker v. Schoonmaker,
718 So. 2d 867 (Fla.
4th DCA 1998), instructive. There, we remanded the case to allow the
court to clarify whether it intended shared parental responsibility and to
determine which parent had ultimate responsibility over specific aspects
of the children’s welfare.
Id. at 868-69. We reach the same conclusion
here.
The circuit court addressed a number of section 61.13(b)(2) issues. For
example, it ordered the parties to maintain a phone line in each home for
the children to communicate privately with the other parent. While the
mother’s residence will determine school boundaries, the parenting plan
neither addressed school registration nor other details of the children’s
education. The judgment also failed to address responsibility for
extracurricular activities and details about health care decisions and
costs. The court needs to address these issues. We therefore reverse and
remand the case to the circuit court to address these aspects of the
parenting plan.
• Whether the circuit court needs to address responsibility for
travel expenses? Yes.
Next, the former husband claims the circuit court failed to properly
consider the parties’ financial positions in addressing travel expenses. The
court did not specify how the parents will share the travel costs. The
judgment essentially burdens the former husband with the expenses for
travel of less than four days’ duration.
The circuit court found that both parties have good salaries and should
be able to manage travel expenses. The former husband argues the former
wife should share in the travel expenses. The former wife responds that
only the children’s travel expenses are a childrearing expense, and the
child support guidelines provide the framework for equitably sharing these
expenses. Christ v. Christ,
854 So. 2d 244, 248 (Fla. 1st DCA 2003).
The circuit court’s finding that the parties each have the financial
ability to share the children’s travel expenses is based on the social
investigator’s report. The court did not receive any other testimony on the
parties’ current financial positions. Indeed, the court reserved jurisdiction
to do just that. To the extent the parties need to know precisely how the
travel expenses will be shared, the former wife agrees the case should be
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remanded for clarification on this issue. We therefore reverse and remand
on this issue.
• Whether the circuit court erred in restricting the parties to an
unrequested communication platform? Yes.
The judgment directs the parties to communicate with each other
through Talking Parents, Family Wizard, or a similar app. The former
husband argues the circuit court did not have authority to restrict how
they communicate because neither party requested that relief. The parties
previously agreed they could communicate by email and text messages as
they had under the 2016 Parenting Plan.
The former wife agrees that neither party requested the circuit court to
decide on the form of communication. She claims the issue is moot
however because the parties agreed to use Our Family Wizard. The former
husband replies the issue is not moot because he only complied with the
judgment after he was denied a stay.
Section 61.13(2)(b) requires the court to “describe in adequate detail
the methods and technologies that the parents will use to communicate
with the child[ren].” It does not however dictate the methods and
technologies that can be used when the parents communicate with each
other, and neither parent requested a specific means of communication.
Because this detail was not requested by either party, the provision
limiting communication to Talking Parents, Family Wizard, or a similar
app should be stricken. Escobar v. Escobar,
76 So. 3d 958 (Fla. 4th DCA
2011).
• Summary
The circuit court did not exceed its authority in addressing all the child-
related issues and did not err in reserving jurisdiction to decide child-
related financial issues. We affirm the judgment on issues 1-5, but reverse
and remand the case to the circuit court to:
• correct the scrivener’s error regarding the number of
timesharing days awarded to the former wife;
• address the additional requirements for a parenting plan
pursuant to 61.13(2)(b);
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• determine how the parties should share travel expenses in
consideration of their present financial circumstances; and
• strike the specified means of communication between the
parties.
Affirmed in part; Reversed in part and Remanded for proceedings
consistent with this opinion.
WARNER and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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