BENJAMIN A. MUSGRAVE v. LYNN M. MUSGRAVE

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BENJAMIN A. MUSGRAVE, )
)
Appellant, )
)
v. ) Case No. 2D18-2792
)
LYNN M. MUSGRAVE, )
)
Appellee. )
)
Opinion filed November 27, 2019.
Appeal pursuant to Fla. R. App. P.
9.130 from the Circuit Court for
Collier County; Mary Evans, Judge.
Lisa P. Kirby of Lisa P. Kirby, P.A., Naples,
for Appellant.
Scott Martin Roth of Smooth Transitions,
Inc., Naples, for Appellee.
SMITH, Judge
Benjamin A. Musgrave (Husband) appeals a final judgment dissolving his
marriage to Lynn M. Musgrave (Wife) raising numerous errors arising from the trial
court's "virtually verbatim" adoption of the Wife's proposed final judgment after a two-
day, nonjury trial. Because we find merit on the following issues: award of sole parental
responsibility to the Wife, entry of de facto domestic violence injunction against the
Husband, and requirement that the Husband name the Wife as a beneficiary under his
existing life insurance policy, we reverse as to these issues and remand with
instructions. We affirm the final judgment of dissolution in all other respects without
comment.
I
The main dispute in this marriage dissolution case centered around the
Husband's attempt to gain sole parental responsibility of the parties' two minor children.
The Husband claimed in his petition that shared parental responsibility was detrimental
to the minor children because of the Wife's "lack of moral fitness."1 In response, the
Wife denied the Husband's allegations and, in turn, threatened to seek sole parental
responsibility if the Husband continued to exhibit "defiant, disruptive, mean-spirited,
unreliable, unreasonable, disrespectful and/or dismissive" behavior toward her.2
However, the Wife never formally requested sole parental responsibility. Both parties
were represented by counsel throughout the proceedings below.
The Husband and Wife were married almost ten years3 and at the time of
the petition had two minor children. They were living in separate residences for
approximately one year before the Husband filed his petition for dissolution of marriage.
1The Husband subpoenaed approximately twenty of the Wife's business
acquaintances to testify at trial. The Wife was successful in obtaining an order limiting
the Husband's trial witnesses.
2The Wife testified the Husband installed a tracking device on her car to
gain knowledge of her whereabouts. Despite the Wife's allegations in her response,
she did not seek sole parental responsibility.
3The parties entered into a prenuptial agreement prior to the marriage,
which the parties stipulated was valid. The agreement addressed financial matters but
not the parenting issues before the trial court.
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During the parties' separation, and until the final hearing, they maintained an equal
timesharing schedule, rotating the children on a weekly basis pursuant to a stipulated
temporary order. Neither party sought to alter the equal timesharing schedule in these
proceedings.
The only issues tried during the trial were the issues of parental
responsibility, the creation of a holiday timesharing schedule, and equitable distribution,
with the issue of parental responsibility taking up the majority of the trial. The
proceedings were clearly acrimonious. The Husband presented six witnesses to testify
regarding the Wife's "moral fitness." The Husband's evidence amounted to an
inappropriate, and mostly unsubstantiated, attempt to tarnish the Wife's character and
had little, if anything, to do with demonstrating shared parental responsibility was
detrimental to the children. The Wife presented no outside witnesses and relied on her
own testimony. At the conclusion of the trial, the Husband conceded the evidence failed
to establish the requisite detrimental finding necessary to award him sole parental
responsibility,4 but nevertheless asked the trial court to award him sole responsibility
with regard to the minor children's education and extracurricular activities.
Upon conclusion of the trial, the trial court reserved ruling and made no
oral pronouncement of any findings of fact or legal conclusions. The trial court directed
the parties' respective counsel to submit proposed final judgments, to which neither
party objected. The Husband submitted his proposed final judgment on February 14,
2018, and the Wife submitted her eighteen-page proposed final judgment on February
4The Husband explained in his motion for rehearing that "[i]t was the
Husband's legal and factual position that witnesses would testify to something other
than they actually did."
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16, 2018. On May 1, 2018, the trial court signed the Wife's proposed final judgment,
adding one handwritten sentence noting concern regarding the Husband's practice of
weighing the children after timesharing with the Wife.
Relevant to our opinion here, the final judgment granted the Wife sole
parental responsibility of both children, granted the Wife what amounted to a de facto
domestic violence injunction against the Husband, and ordered the Husband to name
the Wife as a beneficiary of his existing life insurance policy.
II
We must first address the Husband's attack of the final judgment, as a
whole, based upon the trial court's "virtually verbatim" adoption of the Wife's proposed
final judgment, arguing the findings do not reflect the court's thoughtful and independent
analysis.
"[T]he law in Florida does not prohibit the verbatim adoption of a judgment
that has been proposed by a party." Bishop v. Bishop, 47 So. 3d 326, 328 (Fla. 2d DCA
2010) (citing M.D. v. Dep't of Children & Family Servs., 924 So. 2d 827, 830 (Fla. 2d
DCA 2005)). However, an adopted judgment "cannot substitute for a thoughtful and
independent analysis of the facts, issues, and law by the trial judge." Perlow v. Berg-
Perlow, 875 So. 2d 383, 390 (Fla. 2004). A trial judge is permitted to request a
proposed final judgment from the parties, so long as the opposing party is given an
opportunity to comment or object prior to entry of an order by the court. Id. at 388(noting a verbatim acceptance of a proposed final judgment, without first affording an
opportunity for response by the opposing party is contrary to the requirements of Canon
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3B(7) of the Florida Code of Judicial Conduct5). But see Waldman v. Waldman, 520 So.
2d 87, 88 n.4 (Fla. 3d DCA 1988) ("We condemn this practice [of requesting both
parties to submit proposed orders and adopting one of the proposed orders verbatim].
We admonish the bench and the bar that, particularly in domestic relations cases,
findings of fact and conclusions based thereon are of critical importance. . . . The better
practice, indeed the preferred practice, is for the trial court to indicate on the record its
findings and conclusions."), receded from on other grounds, Acker v. Acker, 821 So. 2d
1088 (Fla. 3d DCA 2002). This court has announced "we will reverse any judgment
entered under circumstances that create an appearance that the judgment does not
reflect the judge's independent decision-making. However, the fact that the judgment
was adopted from a proposal submitted by a party does not, standing alone, raise that
possibility." M.D., 924 So. 2d at 831.
In Perlow, the trial court made no changes to a twenty-five page final
judgment submitted by the wife's counsel and signed the judgment two hours after
receiving it. Perlow, 875 So. 2d at 389. The husband, who did not have counsel, was
not furnished a copy of the proposed judgment and was not given an opportunity to
object. Id. Whereas here: both parties were represented by counsel; the Husband was
given a copy of the Wife's proposed final judgment; the trial court signed the Wife's
proposed final judgment two-and-a-half months after receiving the competing orders,
5The commentary to Canon 3B(7) states in part:
A judge may request a party to submit proposed
findings of fact and conclusions of law, so long as the other
parties are apprised of the request and are given an
opportunity to respond to the proposed findings and
conclusions.
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during which time the Husband raised no objection to the Wife's proposed final
judgment; and the trial court made a hand-written notation on the Wife's proposed final
judgment before signing it—implicating the trial court's independent evaluation of the
submitted findings.
Moreover, a review of the record indicates the trial court actively
participated in the final hearing, which reinforces the conclusion that the trial court
exercised her independent decision-making. See Kendall Healthcare Grp., Ltd. v.
Madrigal, 271 So. 3d 1120, 1122 (Fla. 3d DCA 2019) (determining the trial court actively
participated in nonjury trial by asking pertinent questions and giving appearance it
understood the expert testimony); Cabrera v. Cabrera, 987 So. 2d 753, 754-55 (Fla. 3d
DCA 2008) (finding record support that the trial court actively participated in the
proceeding); Bryan v. Bryan, 930 So. 2d 693, 696 (Fla. 3d DCA 2006) (concluding trial
court exercised independent decision-making where court actively participated in final
hearing by asking questions and taking notes). We note there is no question the Wife's
counsel took great liberties when preparing the proposed final judgment;6 however,
none of the arguably inappropriate or inflammatory findings included in the final
judgment create the appearance that the judge failed to exercise her independent
decision-making in this case, as required for reversal.
6The proposed final judgment submitted by the Wife contains numerous,
unnecessary editorializing and inflammatory remarks, as well as unprofessional findings
which serve no purpose other than to harass – much like the Husband's case-in-chief
and as such will only result in a negative impact on the minor children in the event they
were to later review the final judgment. See Perlow, 875 So. 2d at 391-92 (Pariente, J.,
concurring).
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Accordingly, under the facts of this case, we hold there was no abuse of
discretion by the trial court in adopting the Wife's proposed final judgment. Additionally,
upon rehearing the Husband failed to raise an objection to the proposed final judgment
based upon the "verbatim" theory, and he cannot now complain error for the first time in
this appeal. See Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (concluding party
did not properly preserve objection for appellate review).
III
The Husband also challenges the final judgment's award of sole parental
responsibility to the Wife on the grounds the trial court's findings were not supported by
competent, substantial evidence. We note that these proceedings commenced with the
Husband's own request for sole parental responsibility, based upon his contention that
shared parental responsibility would be detrimental to the minor children, and concluded
with the Husband's counsel conceding the Husband failed to meet his burden of proof
on the sole parental responsibility issue, only after he paraded witness after witness into
the courtroom to testify regarding the Wife's moral fitness.
Nonetheless, we review the trial court's award of sole parental
responsibility under an abuse of discretion standard to determine "whether there is logic
and justification for the result." Fazzaro v. Fazzaro, 110 So. 3d 49, 51 (Fla. 2d DCA
2013) (citing A.L.G. v. J.F.D., 85 So. 3d 527, 529 (Fla. 2d DCA 2012)); see also
Cranney v. Cranney, 206 So. 3d 162 (Fla. 2d DCA 2016); accord Smith v. Smith, 971
So. 2d 191, 195 (Fla. 1st DCA 2007) (reviewing specifically whether competent,
substantial evidence supports the trial court's decision). Because the Wife never
requested sole parental responsibility and because we find no logic and justification for
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the award of sole parental responsibility to the Wife, we reverse this portion of the final
judgment and remand for the reasons set forth below, which should assist the trial court
in creating an appropriate parenting plan under section 61.13, Florida Statutes (2018),
with regard to the parties' shared parental responsibility.
The burden of showing that shared parental responsibility would be
detrimental to a child falls on the party objecting to shared parental responsibility. Kent
v. Burdick, 573 So. 2d 61, 63 (Fla. 1st DCA 1990). A trial court's determination that
shared parental responsibility would be detrimental to the child "will be upheld as long
as there is substantial competent evidence in the record that conforms to the relevant
factors." Bader v. Bader, 639 So. 2d 122, 124 (Fla. 2d DCA 1994).
Florida's public policy "clearly favors shared parental responsibility."
Coyne v. Coyne, 895 So. 2d 469, 472 n.1 (Fla. 2d DCA 2005); see also
§ 61.13(2)(c)(1), Fla. Stat. (2018) ("It is the public policy of this state that each minor
child have frequent and continuing contact with both parents after the parents separate
or the marriage of the parties is dissolved and to encourage parents to share the rights
and responsibilities, and joys, of childrearing."). Based upon the strong public policy in
favor of shared parental responsibility, section 61.13(2)(c)(2) mandates: "The 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."
In determining the appropriate parental responsibility for each parent,
section 61.13(2)(c)(2)(a) grants the trial court broad discretion to award "ultimate
responsibility over specific aspects of the child's welfare or may divide those
responsibilities between the parties based on the best interests of the child." In doing
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so, the trial court is permitted, but not required, to "consider the expressed desires of
the parents." Id. Notwithstanding, the trial court's primary consideration shall always be
the best interests of the minor child. § 61.13(3).
Where the trial court is required to determine the propriety of shared
parental responsibility, a trial court must apply the detriment test under
section 61.13(2)(c)(2) to determine whether shared parental responsibility would be
detrimental to the child. Coyne, 895 So. 2d at 472 n.1 (discussing Bader, 639 So. 2d at
124). If the answer to this question is in the affirmative, the trial court must then make a
specific finding "either on the record or in the final judgment, that shared parental
responsibility would be detrimental to the child." Id. at 472 (holding the trial court is not
required to make any written findings other than that shared parental responsibility
would be detrimental to the child, recognizing that delving into the best interest factors
not only burdens the trial court but, moreover, would have far-reaching adverse
consequences on a child's privacy interest); A.L.G., 85 So. 3d 527; Coyne, 895 So. 2d
469; Evans v. Woodard, 898 So. 2d 230 (Fla. 2d DCA 2005); Decker v. Lyle, 848 So. 2d
501 (Fla. 2d DCA 2003); see also Maslow v. Edwards, 886 So. 2d 1027, 1028 (Fla. 5th
DCA 2004) (employing the best interest of the child standard does not "obviate the
necessity of a specific finding that shared parental responsibility would be detrimental to
the child before awarding sole parental responsibility to a parent") (first citing Hicks v.
Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987); then citing Nichols v. Nichols, 432 So. 2d
648 (Fla. 1st DCA 1983)).
A trial court's failure to provide any justification for preferring one parent
over the other in assigning parental responsibility is an abuse of discretion. See
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Cranney, 206 So. 3d at 164 (determining there was no evidence that the parties had an
"extensive inability to cooperate on issues involving the welfare of the children so as to
justify an award of sole decision-making authority"); Fazzaro, 110 So. 3d at 51-52(finding hostility between the parties did not establish their inability to work together for
the best interest of the child); Ziruolo v. Ziruolo, 217 So. 3d 1170 (Fla. 1st DCA 2017)
(holding the trial court's order assigning mother as the ultimate decision maker over the
children's healthcare, school, and other activities without any justification was not
supported by competent substantial evidence).
The Husband acknowledges the final judgment contains the requisite
Bader finding of detriment,7 but argues there is no competent, substantial evidence
supporting the finding of detriment, with which we agree. In support of the detrimental
finding, the trial court's final judgment states: "[T]he Wife should not be compelled to
co-parent with someone who is spiteful, vengeful, and not credible. Therefore, the
Court awards sole parental responsibility."8 Unquestionably, the detrimental findings
read more like a diatribe of the Wife's criticisms of the Husband during the marriage and
their separation; however, they bear no weight on the Husband's ability to share
parental responsibility with the Wife. Nor do the findings establish that shared parental
responsibility would be detrimental to the minor children. In fact, the only finding
amongst these detrimental findings with any remote relationship to the minor children is
7Cf.
Coyne, 895 So. 2d at 473 (reversing and remanding to trial court for
determination whether shared parental responsibility would be detrimental to the
children).
8We refrain from detailing the remainder of the trial court's detrimental
findings, so as not to compound any adverse consequences on the minor children.
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the trial court's handwritten notation regarding the Husband's practice of weighing the
children after returning from the Wife's care. Conversely, the record evidence
established the Husband shared in taking the children to doctor appointments and was
supportive and an active participant in the children's extracurricular activities.
The evidence here certainly indicates animosity between the Husband and
Wife, but we cannot conclude there is competent, substantial evidence to constitute
detriment to the children that would support wholly abrogating the Husband's parental
responsibilities.
Furthermore, the record reveals the Wife never requested sole parental
responsibility. In a dissolution action, an issue is properly before the court when it is
raised in the pleadings or when it is raised and considered by the court without
objection. Sugrim v. Sugrim, 649 So. 2d 936, 938 (Fla. 5th DCA 1995). Here, the Wife
did not request sole parental responsibility in any pleading. While she threatened to
seek sole parental responsibility if the Husband continued his alleged antics directed at
her (as opposed to directed toward the children), she did not amend her pleadings, nor
did she present any evidence during the two-day trial that would indicate the issue was
tried by implied consent. See DeLoach v. DeLoach, 552 So. 2d 324, 325 (Fla. 1st DCA
1989) (holding when an issue regarding equitable distribution is raised and considered
without objection, it is appropriate to regard the issue as if it had been pleaded). Here,
because the Wife did not request sole parental responsibility and because there was no
evidence before the trial court that would allow it to enter an award of sole parental
responsibility to the Wife, the trial court abused its discretion in awarding sole parental
responsibility to the Wife.
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We hold the trial court abused its discretion in awarding sole parental
responsibility to the Wife where the Wife did not request sole parental responsibility and
where there is no "logical or reasonable justification" for the award that would support
the conclusion that shared parental responsibility was detrimental to the minor children.
See Cranney, 206 So. 3d at 165 (holding trial court erred in awarding mother ultimate
decision-making authority in the absence of any finding of specific detriment and where
there was no "logic or justification" for the award).
IV
Next, we find error in the final judgment to the extent it grants the Wife
what amounts to a de facto domestic violence injunction against the Husband. We
review for competent, substantial evidence. See S.C. v. A.D., 67 So. 3d 346, 347 (Fla.
2d DCA 2011).
The specific language of the final judgment reads as follows:
19. Based upon the credible testimony of the Wife, the
Court has concerns regarding the Wife's safety. Therefore,
the Husband shall not come on or about the Wife's place of
employment. The Husband shall not come on or about the
Wife's residence, unless he has been specifically invited by
the Wife, in writing, and for the sole purpose of delivering the
children into her care. The Husband shall not come within
100 feet of the Wife's motor vehicle.
While a trial court has discretion to enter specific orders regarding
parenting plans and timesharing "as such orders relate to the circumstances of the
parties and the nature of the case and are equitable," under section 61.13(5), this
discretion is not absolute. See Worthington v. Worthington, 123 So. 3d 1189, 1190 (Fla.
2d DCA 2013) (finding trial court abused its discretion in granting unrequested relief).
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Section 741.30, Florida Statutes (2017), specifies the procedure for a
party seeking protection from domestic violence, i.e., petitioning the circuit court for a
permanent injunction against the person allegedly committing the domestic violence.
For a party to have standing to seek a domestic violence injunction the court must find
that the petitioner "is either the victim of domestic violence as defined in section 741.28
or has reasonable cause to believe he or she is in imminent danger of becoming the
victim of any domestic violence." § 741.30(1)(a); see also Ambrefe v. Ambrefe, 993 So.
2d 98, 98 (Fla. 2d DCA 2008). A permanent injunction will only be granted after a party
is provided fundamental fairness of notice and due process. See Semple v. Semple,
763 So. 2d 484 (Fla. 4th DCA 2000) (discussing fundamental requirements of notice
and due process via full evidentiary hearing prior to issuance of injunction under chapter
741).
The record here is devoid of any facts showing the Wife followed the
procedure set forth in section 741.30, much less that she had standing to file a petition
for domestic violence or showing the Husband was provided notice and hearing before
the entry of the injunction. Accordingly, the trial court acted without the proper statutory
authority when it entered the de facto domestic violence injunction. See Hunter v.
Booker, 133 So. 3d 623, 627 (Fla. 1st DCA 2014) (finding the trial court "violated
[p]etitioner's right to due process by granting relief not requested by [r]espondent, and
by sua sponte raising and considering the issue [of temporary parenting plan after
dismissal of injunction] without providing adequate notice”).
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V
The final argument we address in this appeal is that portion of the final
judgment requiring the Husband to name the Wife as a beneficiary to his existing life
insurance policy, absent any special circumstances requiring him to maintain such
policy and absent any evidence showing his ability to pay the insurance premiums.
A trial court may order a parent to purchase or maintain life insurance or
otherwise secure child support or alimony obligations, see §§ 61.13(1)(c), 61.08(3); or
to otherwise secure such obligations and protect the receiving spouse in "appropriate
circumstances." Sobelman v. Sobelman, 541 So. 2d 1153, 1154-55 (Fla. 1989). We
find no merit in the Wife's argument that the Husband's advanced age of seventy with
two young children qualifies as a special or appropriate circumstance. In the instant
case, the Wife is paying child support to the Husband. No stretch of the opinion in
Sobelman could be read to require a spouse, who is the receiving spouse of child
support, to secure the other party's obligation. Because we reverse the requirement to
name the Wife as a beneficiary under the Husband's existing life insurance policy, we
need not reach the issue of the Husband's ability to pay.
IV
Accordingly, we reverse the final judgment, in part, and remand for the
trial court to enter a final judgment consistent with this opinion. On remand, we instruct
the trial court to amend the final judgment to award the parties shared parental
responsibility on matters including education, health and medical, and extracurricular
activities. We instruct the trial court to remove all findings and inflammatory remarks
related to the issue of parental responsibility consistent with this court's decision in
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Bader, 639 So. 2d at 124-25. The trial court shall remove paragraph nineteen, which
amounts to a de facto injunction against the Husband, and the portion of the final
judgment requiring the Husband to name the Wife as a beneficiary of his life insurance
policy.
Affirmed in part, reversed in part, and remanded with instructions.
CASANUEVA and MORRIS, JJ., Concur.
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