JEFFREY L. LIGHTSEY v. ANGELICA M. DAVIS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEFFREY L. LIGHTSEY,
Appellant,
v.
ANGELICA M. DAVIS,
Appellee.
No. 4D18-2848
[March 6, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Michael C. Heisey, Judge; L.T. Case No.
472017DR000107.
Karen O'Brien Steger and Lori I. Steger of Steger Law, Stuart, for
appellant.
No brief filed for appellee.
WARNER, J.
A father appeals a final judgment of paternity and challenges the court’s
rulings on parental responsibility and timesharing. He contends that the
court erred: (1) in awarding the mother sole parental responsibility without
a finding of detriment to the child in shared responsibility; (2) in awarding
him only supervised timesharing with the child without setting forth the
steps that he must take to obtain unsupervised timesharing; and (3) in
providing time sharing at the sole discretion of the mother. There is no
transcript in the record, so the errors must appear on the face of the final
judgment to warrant reversal. See Dorsett v. Dorsett, 902 So. 2d 947, 950
(Fla. 4th DCA 2005). The lack of a transcript prevents review of the failure
to make a finding of detriment to the child. We reverse as to the failure to
provide steps to secure unsupervised timesharing and the grant of
supervised timesharing at the sole discretion of the mother, as the court
must provide a means for the father to obtain unsupervised visitation and
cannot delegate to a third party the determination of timesharing.
We need not detail all of the findings in the final judgment. It suffices
to state that the trial court found that the father was not engaged with his
child. The court concluded that based on the factors of section 61.13,
Florida Statutes (2018), the father had not demonstrated the capacity to
facilitate a close and continuous parent-child relationship. He put his own
needs before those of his child, who has resided with the mother in a
stable, satisfactory environment. Furthermore, the father has shown no
interest in maintaining continuous contact with the child or in being
informed about the child’s medical needs or daily activities. He “only
inquires of the child as a means of getting back together with Mother.”
Finally, he has not shown “the capacity or disposition to provide any
routine for the child or to communicate with Mother with regard to the
child’s welfare or to provide the child with an environment which is free
from substance abuse.”
The trial court awarded the mother sole parental responsibility of the
child. It ruled that the “Father’s contact with the child shall be supervised
by the Mother at Mother’s discretion until he has demonstrated the ability
to properly parent a child, at which” point he could petition to modify his
timesharing. The father appeals. 1
Section 61.13(2)(c)2., Florida Statutes (2018), provides that “[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.” Although we have held that such a
finding is necessary, see Aranda v. Padilla, 216 So. 3d 652, 653 (Fla. 4th
DCA 2017), it may be made either on the record or in the final judgment.
See Coyne v. Coyne, 895 So. 2d 469, 472 (Fla. 2d DCA 2005). “[T]here is
no statutory requirement that the trial court make specific written findings
in a custody decision.” Adair v. Adair, 720 So 2d 316, 317 (Fla. 4th DCA
1998). The failure to include a finding of detriment does not render the
judgment fundamentally erroneous. Without a transcript, we cannot
ascertain whether the trial court made a finding of detriment to the child
at the trial. Therefore, based upon Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150 (Fla. 1979), we cannot reverse on this
ground.
1
The father also claims that the court awarded relief not requested in the
pleadings; however, without a transcript of proceedings this issue cannot be
decided because it cannot be determined whether issues were tried by implied
consent. See Lannon v. Foley, 914 So. 2d 518, 518 (Fla. 4th DCA 2005) (noting
unpled issues may be tried by implied consent).
2
The final judgment did not set forth a timesharing schedule, but it
authorized supervised time sharing within the sole discretion of the
mother until such time the father has demonstrated that he is able to
properly parent. Yet the court did not provide what steps the father should
complete to demonstrate that ability. In Whissell v. Whissell, 222 So. 3d
594, 595 (Fla. 4th DCA 2017), we held that even if the trial court’s decision
not to award unsupervised timesharing is supported by competent
substantial evidence, the court must provide the parent who is denied
timesharing “with specific steps to obtain unsupervised timesharing.” A
trial court’s failure to set forth any specific requirements or standards with
which the parent must comply in order to reduce the timesharing
restrictions — whether those restrictions constitute a total prevention of
timesharing altogether or are only a limitation of timesharing—is error. Id.“While the trial court need not ‘set out every minute detail of the steps to
reestablish unsupervised timesharing,’ the parent must leave the
courtroom ‘knowing that if [they] satisfactorily accomplish[ ] relatively
specific tasks, [they] will be able to reestablish unsupervised timesharing.’”
Id. (quoting Witt-Bahls v. Bahls, 193 So. 3d 35, 38 (Fla. 4th DCA 2016)).
The trial court must provide the father with that path.
Similarly, the trial court directed that the father’s timesharing with the
child would be at the sole discretion of the mother. A court may not
delegate its responsibility to determine timesharing to a third party.
Larocka v. Larocka, 43 So. 3d 911, 912-13 (Fla. 5th DCA 2010) (finding
error on face of the judgment, where the trial court delegated its duty to
establish contact and visitation between the mother and the child to a
counselor; recognizing that trial courts may not delegate such authority to
third parties). “[I]t 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.’” Grigsby v. Grigsby, 39 So. 3d 453, 457 (Fla. 2d DCA 2010)
(quoting McAlister v. Shaver, 633 So. 2d 494, 496 (Fla. 5th DCA 1994)). To
prevent this abdication, “a reasonable timesharing 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.” Id. (emphasis in original)
(citing Letourneau v. Letourneau, 564 So. 2d 270, 270 (Fla. 4th DCA 1990)).
Because the court improperly delegated its authority to establish a
timesharing schedule to the mother, the judgment was fundamentally
erroneous.
We thus reverse the final judgment for the trial court to create a
timesharing plan and for it to establish tasks for the father to complete in
order to secure unsupervised timesharing with the child. In its discretion,
3
the court may take further evidence on these issues. In all other respects,
we affirm the final judgment.
DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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