LESLIE BATES (BOGGS), APPELLANT,
v.
BOBBIE SUE WISHART AND CHARLES WISHART, APPELLEES
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On remand from the Florida Supreme Court, the District Court of Appeal reversed a trial court's order granting visitation rights to the paternal grandparents and step-grandfather of a minor child without an evidentiary hearing. The court held that modifying previously established visitation rights requires an evidentiary hearing to determine material changes in circumstances and the child's best interests.
The trial court abused its discretion by modifying visitation rights without an evidentiary hearing. Once visitation rights are fixed in a dissolution judgment and not appealed, they can only be modified after an evidentiary hearing demonstrating both a material change in circumstances and that modification is in the child's best interests.
[1] A trial court abuses its discretion by modifying child visitation rights without holding an evidentiary hearing to determine the child's best interests.
[2] Once child visitation rights are fixed in a final judgment and not appealed, they remain fixed subject only to a material change in circumstances and the child's best int…
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Join FLexlaw to unlock all legal intelligence“When visitation rights are granted and no appeal is taken, those visitation rights become fixed subject only to a material change in circumstances and for the best interests of the child.”
Establishes the legal standard that subsequent modifications to visitation require proof of material change in circumstances and consideration of the child's best interests.
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Join FLexlaw to unlock all legal intelligenceLeslie Bates appealed visitation orders involving her minor child and the child's paternal grandmother, Bobbie Sue Wishart, and step-grandfather, Char…
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RYDER, Acting Chief Judge.
On remand from the supreme court, appellant challenges the portion of the trial court’s order awarding visitation with her minor child to appellees, Bobbie Sue Wis-hart (the child’s paternal grandmother) and Charles Wishart (the child’s step-grandfather). Pursuant to the supreme court’s opinion, our jurisdiction on remand is limited to deciding whether the trial court abused its discretion 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 of dissolution, entered by Judge Manuel Menendez, Jr. on February 26, 1985, grants Bobby Sue Wishart visitation one day every other month. Next, an order entered by Judge John G. Hodges on April 16, 1986 on the Wisharts’ motion for contempt grants the Wisharts visitation every other Saturday for three hours, with appellant allowed to be present. Finally, the order on appeal, entered by Judge Peter J.T. Taylor on August 22, 1986, also grants the Wisharts visitation every other Saturday for three hours, but does not allow appellant to be present during visitation. This last order granting visitation was not entered in response to any written motion or petition requesting visitation, but was instead dispositive of several procedural motions by the Wisharts. The parties to this appeal agree that Judge Taylor heard legal argument but did not hold an evidentiary hearing, and did not otherwise consider evidence relevant to visitation, prior to making his visitation award.
The Wisharts concede that Judge Taylor should not have modified visitation without having held an evidentiary hearing to determine the child’s best interests. When visitation rights are granted and no appeal is taken, those visitation rights become fixed subject only to a material change in circumstances and for the best interests of the child. Ferrell v. Ruege, 397 So. 2d 723 (Fla. 1st DCA 1981). Here, visitation rights were fixed with the visitation award made in the final judgment of dissolution. Those rights were modified by Judge Hodges’ order, which was not appealed. The order on appeal could only again modify visitation after an evidentiary hearing at which material change in circumstances and the best interests of the child could be determined.
We conclude, therefore, that the trial court abused its discretion in making its visitation award. Our reversal reinstates Judge Hodges’ visitation award contained in his order entered on April 16, 1986, which grants appellant the right to be present during the Wisharts’ visitation with her child.
Reversed.
THREADGILL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Green v. Dep't of Health & Rehabilitative Servs., 696 So. 2d 1351 (Fla. 5th DCA 1997)…fication of visitation rights. A party seeking a modification has the burden of proving that there has been a substantial and material change in circumstances, and that the best interest of the child will be promoted by the change. Bates v. Wishart, 545 So. 2d 906 (Fla. 2d DCA 1989) (when visitation rights are granted and no appeal is taken, those visitation rights become fixed subject only to a material change in circumstances and for best interest of the child). The appellant has neither shown a substantial…
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THE Florida BAR v. Wishart, 543 So. 2d 1250 (Fla. 1989)…e district court could determine only whether the circuit court abused its discretion in awarding the Wisharts visitation rights. Wishart v. Bates, 531 So. 2d 955 (Fla.1988), cert. denied, — U.S. -, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989), on remand, 545 So. 2d 906 (Fla. 2d DCA 1989). The Bar filed a complaint charging Wis-hart with numerous violations, and the referee made findings and recommendations including the following: 12. On numerous occasions (too numerous to count) during the torturous [sic] histo…
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Taunton v. Tilton, 673 So. 2d 149 (Fla. 5th DCA 1996)…itation schedule to substantially increase the father’s summer and Christmas visitation. While we take no position on the merits of the court’s action, we reverse because a request for modification was neither made nor noticed. See Bates v. Wishart, 545 So. 2d 906 (Fla. 2d DCA1989). REVERSED and REMANDED. DAUKSCH and W. SHARP, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wishart v. Leslie M. Bates (Boggs), 531 So. 2d 955 (Fla. 1988)
- Leslie M. Bates (Boggs) v. Wishart, 512 So. 2d 977 (Fla. 2d DCA 1987)
- Ferrell v. Ruege, 397 So. 2d 723 (Fla. 1st DCA 1981)