FERNANDO SAENZ, APPELLANT,
v.
JEAN HERMANOWSKI SAENZ, APPELLEE
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Fernando Saenz appeals an order requiring his visitation with his minor daughter to be supervised and his telephone calls with her to be monitored. The Florida appellate court reversed the order, finding no evidentiary support for the restrictions and holding that the trial court abused its discretion in denying his motion to terminate supervision.
The appellate court reversed the order entirely, holding that supervised visitation was unjustified by the record and that the denial of the motion constituted clear abuse of discretion. The court also held that the telephone monitoring order was erroneous because the issue was not tried at the hearing and therefore lacked evidentiary support.
[1] A trial court abuses its discretion by denying a motion to terminate supervised visitation when the basis for the supervision is unsupported by evidence or prior findings…
[2] An order for monitoring telephone conversations between a parent and child is erroneous if the issue was not tried at the hearing and there is no evidence to support the…
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Join FLexlaw to unlock all legal intelligence“the conclusion that the appellant abused the child which apparently formed the basis of the ruling is totally unsupported either by the testimony or by an earlier finding of the general master”
Establishes that the trial court's basis for requiring supervised visitation lacked any evidentiary support.
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Join FLexlaw to unlock all legal intelligenceA trial court approved a temporary order from a general master requiring the father's visitation with his minor daughter to be supervised and initiall…
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SCHWARTZ, Chief Judge.
The father appeals from an order which, inter alia, denied his motion to terminate the requirement in a previous temporary order of a general master which was approved by the trial court that his visitation with his minor daughter be conducted only under supervision, and initially provided that his telephone conversations with the child were to be monitored by her mother, his ex-wife. We set aside the order under review in its entirety.
First, we find nothing in the record or otherwise which, under the existing circumstances, justifies the provision for supervised visitation.1 Specifically, the conclusion that the appellant abused the child which apparently formed the basis of the ruling is totally unsupported either by the testimony or by an earlier finding of the general master. Consequently, the denial of the father’s motion to terminate supervision constituted a clear abuse of discretion.
The order for monitoring the father-daughter telephone calls is likewise erroneous. This is because (a) by the explicit direction of the trial court, the issue was not tried at the hearing in question, see Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974), and (b) there was therefore2 no evidence to support the granting of that relief.
For these reasons, the order under review is entirely reversed and the cause remanded with directions to grant the appellant’s motion for termination of supervision, and for further proceedings consistent with this opinion.
Reversed and remanded with directions.
. Because the master’s report and the order confirming it were plainly only temporary in nature, the "change of circumstance” rule— which is an aspect of the doctrine of res judicata and, as such, concerns only final judgments— does not apply. Lee v. Meeks, 592 So. 2d 282 (Fla. 1st DCA 1991); Malunney v. Pearlstein, 539 So. 2d 493 (Fla. 2d DCA 1989), review denied, 547 So. 2d 1210 (Fla.1989); Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983). Instead, the applicable doctrine is that rulings on temporary relief do not affect later orders on the same issue, which must be dealt with independently on the basis of the record which is then presented. Pearson v. Caudle, 593 So. 2d 619 (Fla. 4th DCA 1992); Gilbert v. Gilbert, 105 So. 2d 379 (Fla. 3d DCA 1958).
On that basis, the record at most shows that (a) the father has perhaps imprudently discussed the issues in this case with the child and (b) has been involved in a continuing and not unexpected conflict with his ex-wife. Neither can justify the severe restriction on the contact between daughter and parent which is embodied in the requirement of supervised visitation. Compare, e.g., Vannucci v. Vannucci, 546 So. 2d 800 (Fla. 5th DCA 1989); Adams v. Adams, 376 So. 2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So. 2d 1109 (Fla.1980); Hechler v. Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977).
. It may be added that our analysis of the inadequacy of the record to support the supervision requirement applies also to this issue. See supra note 1.,
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Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005)…ly splitting causes of action, as the claim could be barred based on another aspect of res judicata. See State v. Freund, 626 So. 2d 1043, 1045 n. 1 (Fla. 4th DCA 1993)(stating that collateral estoppel is an aspect of res judica-ta); Saenz v. Saenz, 602 So. 2d 973, 974 n. 1 (Fla. 3d DCA 1992)(stating that the “change of circumstance” rule is an aspect of res judicata). Even if this were not the case, the claims at stake are not the result of “a single wrongful act.” Only the fraud in the inducement claim is…
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Rohlfs v. Rohlfs, 666 So. 2d 568 (Fla. 3d DCA 1996)…es justifying a restriction on the location of the father's visitation, we reverse the order restricting his visitation. See Yandell v. Yandell, 39 So. 2d 554, 555 (Fla.1949); Davis v. Dixon, 604 So. 2d 1236, 1237 (Fla. 3d DCA 1992); Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA), review denied, 613 So. 2d 8 (Fla. 1992); § 61.13(2)(b)l, Fla.Stat. (1993). . Our holding, however, does not preclude future trial court rulings declining to exercise-jurisdiction pursuant to the UCCJA’s inconvenient forum provision.…
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Davis v. Leonard and Ardella Dixon, 604 So. 2d 1236 (Fla. 3d DCA 1992)…ixon, 293 So. 2d 113 (Fla. 2d DCA 1974). Reversed and remanded. . Our conclusion makes it unnecessary to address the appellants’ contentions regarding the application of sections 752.01, 752.015, Florida Statutes (1991). . Compare Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA 1992).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Harland Morrison Adams v. Adams, 376 So. 2d 1204 (Fla. 3d DCA 1979)
- Daewid Hechler v. Marita Hechler, 351 So. 2d 1122 (Fla. 3d DCA 1977)
- Earla W. Malunney v. Leslie Pearlstein, M.D., 539 So. 2d 493 (Fla. 2d DCA 1989)
- Gilbert v. Gilbert, 105 So. 2d 379 (Fla. 3d DCA 1958)
- Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983)
- Vannucci v. Vannucci, 546 So. 2d 800 (Fla. 5th DCA 1989)
- LEE v. Meeks, 592 So. 2d 282 (Fla. 1st DCA 1991)