LESLIE M. BATES (BOGGS) APPELLANT/CROSS-APPELLEE,
v.
BOBBIE SUE WISHART AND CHARLES F. WISHART, APPELLEES/CROSS-APPELLANTS

Fla. 2d DCA | 1987-08-07
No. 86-2408
THREADGILL, J. and PATTERSON, DAVID F., Associate Judge, concur.
512 So. 2d 977 Florida District Court of Appeal, Second District (1987) Negative Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This case concerns the appellate court's review of a trial court's post-appeal orders regarding costs and visitation for grandparents. The appellate court reversed the award of costs to the grandparents, finding they were not the prevailing party, and reversed the grant of visitation rights to the grandparents, as the child's mother was a fit parent.


Holding

1. No, the trial court erred in awarding appellate costs to the grandparents because they were not the prevailing party in the prior appeal. 2. Yes, the trial court erred in granting visitation rights to the grandparents as the mother was a fit parent. 3. No, the prior appellate decision did not render the initial custody order void ab initio.


Headnotes

[1] A trial court order awarding appellate costs to a party who did not prevail on appeal is erroneous.

[2] A prior appellate decision remanding a custody case for a hearing does not render the original custody award void ab initio.

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Key Quotes

“By returning the matter to the trial court in the prior appeal, we did not overturn the trial court’s award of custody to appellant. We merely granted the appellees an opportunity to be heard at a custody hearing.”

Explains that the prior appellate ruling did not fully reverse the custody award to the mother.

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Facts & Procedural History

Following a divorce, the mother (appellant) was awarded primary custody of the child. The paternal grandparents (appellees) appealed, and the appellat…

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Opinion of the Court
RYDER, Acting Chief Judge.

RYDER, Acting Chief Judge.

In 1983, appellant, Leslie M. Bates (Boggs), petitioned for a divorce alleging that her marriage to Randy Bates was irretrievably broken and sought custody of the parties’ only child, Tiffany Michelle Bates. Appellant additionally sought a court order requiring the return of the child to her custody. She alleged that her husband had removed the child from their marital home and delivered the child to one Charles Wis-hart (the step-grandfather of the child) and Bobbie Sue Wishart (a grandmother of the child). The Wisharts, appellees here, were joined as necessary party defendants in the child custody matter pursuant to sections 61.1306 and 61.131, Florida Statutes (1983).

On December 28, 1983, the trial court ordered that the temporary residence of the minor child be with Bobbie Sue Wis-hart, the paternal grandmother, every Monday through Friday. Appellant was to have the child on weekends.

On February 26, 1985, a different trial judge entered a final judgment holding that the Bates’ marriage was irretrievably broken and granted shared parental responsibility to the parents. Appellant was given primary residence of the child. The Wis-harts appealed the final judgment. The natural father did not contest the order of the court below.

A panel of this court held that the Wis-harts, as grandparents, “should have been afforded an opportunity to be heard and present evidence at the custody hearing.” Wishart v. Bates, 487 So. 2d 342 (Fla. 2d DCA 1986). The panel reversed and remanded for further proceedings consistent with the opinion. The Wisharts subsequently filed a motion to enforce mandate arguing that the decision made void the trial court’s award of primary custody to appellant, and that the child must be returned to Bobbie Sue Wishart’s temporary custody pursuant to the December 28, 1983 order. We denied the motion to enforce mandate.

Since the panel’s denial of the Wisharts’ motion to enforce mandate, step-grandfa ther Wishart has filed numerous motions; so numerous, we believe the harried, but able trial judge must be reeling from that malady so aptly described in Dubowitz v. Century Village East, Inc., 381 So. 2d 252, 253 (Fla. 4th DCA 1979). He has not petitioned for a custody hearing. On June 3Ó, 1986, the trial court held a case management hearing. At that hearing, the trial judge granted the Wisharts appellate costs pursuant to Florida Rule of Appellate Procedure 9.400(a)(1), (2), (4). The trial judge ruled that the opinion of this court, to which we earlier alluded, did not “completely reverse the final judgment ... and therefore did not require a return to the temporary primary and/or custody status enjoyed by the Wisharts immediately prior to the final judgment.” The trial judge is eminently correct in that ruling. The trial judge, thereafter, awarded the Wisharts visitation rights with the child on every other Saturday. This timely appeal followed.

Appellant raises two points with us. First, the trial court erred in awarding appellees their appellate costs. Second, the court erred in granting appellees any visitation rights at all. Appellees raise one point on cross-appeal: the second district’s opinion permitting the grandparents a hearing in the custody of the child rendered the prior trial court’s order granting appellant custody void ab initio. We will deal with each in point of order. Florida Rule of Appellate Procedure 9.400(a) provides that, “Costs shall be taxed in favor of the prevailing party unless the court orders otherwise.... Costs shall be taxed by the lower tribunal on motions served within 30 days after issuance of the mandate.” Florida Rule of Appellate Procedure 9.400(c) provides that, “Review of orders rendered pursuant to this rule shall be by motion filed in the court within 30 days of rendition.” The judgment awarding costs to appellees was entered on August 22, 1986. Appellant filed her notice of appeal with the circuit court on September 19, 1986. We have jurisdiction to review the court’s order because appellant filed her notice of appeal within thirty days of the rendition of the judgment awarding appellate costs. The trial court erred in awarding appellees appellate costs. We reverse the trial court’s order awarding appellees appellate costs as we hold appellees were not the prevailing parties in the prior appeal. By returning the matter to the trial court in the prior appeal, we did not overturn the trial court’s award of custody to appellant. We merely granted the appellees an opportunity to be heard at a custody hearing. As was evidenced by our denial of appellees’ motion to enforce mandate which had urged the return of temporary custody to appellees, custody was to remain with appellant.

As to appellant’s second point, we observe that the trial court also erred in granting appellees visitation rights. “An order granting visitation rights to a non-parent of a child whose custody has been awarded to a fit parent is unjustified and unenforceable.” Sheehy v. Sheehy, 325 So. 2d 12 (Fla. 2d DCA 1975); Tamargo v. Tamargo, 348 So. 2d 1163 (Fla. 2d DCA 1977); Rodriguez v. Rodriguez, 295 So. 2d 328 (Fla. 3d DCA 1974). Appellant has been found to be a fit parent.

Thus, we reverse and vacate the trial court’s award of appellate costs as appel-lees were not the prevailing parties in the prior action. We also reverse and vacate the trial court’s award of visitation rights to the appellees.

On cross-appeal appellees argue that the trial court erred by not . finding that our opinion permitting the step-grandfather and grandmother a hearing on the custody of the child rendered the prior trial court’s order granting appellant custody void ab initio. Appellees argue that because the prior order was void ab initio, appellees should be reinstated with the temporary custody of the child. As was previously discussed, we did not reverse the trial court’s prior custody judgment. We merely granted the appellees an opportunity for a hearing in which to present evidence as to the child’s best interests with regard to her custody. Accordingly, we find no merit in the point on cross-ap peal and affirm the trial judge’s ruling thereon.

Reversed in part; affirmed in part.

THREADGILL, J. and PATTERSON, DAVID F., Associate Judge, concur.


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Citator

Cited By

  • Denyse Ann Griss v. Griss, 526 So. 2d 697 (Fla. 3d DCA 1988)
    …ts are disputes between a grandparent and a son-in-law or daughter-in-law who has custody of the grandchild. See, e.g., Mauldin v. Richter, 515 So. 2d 1030 (Fla. 1st DCA 1987); Beard v. Hamilton, 512 So. 2d 1088 (Fla. 2d DCA 1987); Bates v. Wishart, 512 So. 2d 977 (Fla. 2d DCA 1987)2; Enslein v. Gere, 497 So. 2d 705 (Fla. 4th DCA 1986); Putnal v. Putnal, 392 So. 2d 613 (Fla. 5th DCA 1981). Understandably, this exact scenario was envisioned by the members of the Florida Legislature considering the enactment of…
  • Wishart v. Leslie M. Bates (Boggs), 531 So. 2d 955 (Fla. 1988)
    …EHRLICH, Chief Justice. We have for our review Bates v. Wishart, 512 So. 2d 977 (Fla. 2d DCA 1987), which directly and expressly conflicts with decisions of other district courts on the issue of granting visitation rights to grandparents. See Putnal v. Putnal, 392 So. 2d 613 (Fla. 5th DCA 1981); Whitehead v. Hewett, 380 So. 2d…
  • Leslie Bates (Boggs) v. Wishart, 545 So. 2d 906 (Fla. 2d DCA 1989)
    …ion in making its visitation award to the Wisharts. See Wishart v. Bates, 531 So. 2d 955 (Fla.1988). We find that the trial court did abuse its discretion and reverse. The facts in this case are set forth in our previous opinion, Bates v. Wishart, 512 So. 2d 977 (Fla. 2nd DCA 1987), and need not be set forth in detail again. Our review of the record indicates that there are three separate orders, entered at different times and by different judges, granting the Wisharts visitation. First, the final judgment…

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