LISA GRUNER, APPELLANT,
v.
RICHARD W. WESTMARK, APPELLEE

Fla. 1st DCA | 1993-04-27
Nos. 92-2566, 92-3418
SMITH, ZEHMER and ALLEN, JJ., concur.
617 So. 2d 420 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 8 cases

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Synopsis

The appellate court reversed an amended child custody order because it was not a final determination, but affirmed the dismissal of a subsequent modification petition as moot. The court emphasized the need for finality in custody decisions.


Holding

The appellate court held that the amended custody order was improper because it was not a final determination. The dismissal of the subsequent modification petition was affirmed as moot due to the reversal of the amended order.


Headnotes

[1] A trial court may not defer a final custody decision for an extended period when the case is otherwise ripe for final determination.

[2] An amended order modifying child custody that does not provide for finality is subject to reversal.

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Key Quotes

“As was the case in Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990), the amended order in the instant case is not an order of finality.”

Establishes the primary reason for reversing the amended custody order.

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Facts & Procedural History

The parties' original custody agreement stipulated the child would live with his mother during the school year and with his father during vacations. B…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, the former wife, seeks reversal of an amended order modifying the primary residential child custody arrangement as provided by the judgment of disso lution. The former wife also challenges an order dismissing a petition for modification, which she filed shortly after entry of the amended modification order.1 For the reasons more fully explained below, we reverse the amended order of modification hut affirm the order of dismissal.

The former wife sought modification of the custody arrangement regarding the only child born to the parties’ marriage, presently, a thirteen year old boy. Under the original custody arrangement, which was established by a dissolution judgment adopting the parties’ stipulated agreement, the child resided with his mother during the school year and spent vacation time with the former husband, the appellee. The former husband counter-petitioned for modification. It appears from the allegations of both parties that the stipulated arrangement had proven to be a hardship for all, and both alleged that their son desired modification.

After hearing extensive testimony, including in camera discussions with the child in which he expressed his desire to reside with his father during the school year, the lower court entered an order which deferred final ruling on the matters raised in the respective petitions, but which temporarily altered the original custody arrangement so that the child would spend the 1992-93 school year with his father. Thereafter, the lower court entered an amended order which again called for the child to reside with his father during the school year. The amended order contained more detailed findings of fact and reasons for the court’s decision than did the first order, but as in the first order, jurisdiction was reserved for a final ruling on all matters raised in the parties’ respective petitions. The trial court stated further that should the child express a desire to return to the prior custody arrangement, such a change could be considered during the Christmas break or at the end of the 1993 school year, upon proper motion.

Shortly after entry of the amended order, the former wife filed another petition for modification alleging, among other things, that the child no longer wished to reside with his father during the school year. Upon motion by the former husband, the second petition was dismissed as frivolous. While the former wife seeks reversal of this dismissal, we find such an appeal to be moot given our decision to reverse the amended order. Preliminarily, we note the absence of a specific finding by the trial judge that a change in conditions sufficient to justify a modification of custody had been established. This should be corrected on remand. We further note, however, in this regard, that both parties alleged a change in conditions, and that there was evidence from which the trial court could have determined that a change in conditions had occurred. The child, now at or approaching adolescence, was only eighteen months old when the original custody agreement was made. In the meantime, there have been several changes in the living arrangements of the parties, and in the interests and activities of the child. In addition, as found by the trial court, the child had himself begun to express a desire for a change. Because we find other reasons for reversal, we see no need to dwell on this issue, and we leave the final determination of this issue to the trial judge in the exercise of his sound discretion.

We are compelled to reverse the amended order because of a fundamental error. As was the case in Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990), the amended order in the instant case is not an order of finality. As already noted, there was extensive evidence presented to the trial court by both parties, so that a final determination could have been made. As we noted in Martinez, there is no statutory or case authority establishing the power of a trial court to defer a final custody decision for an extended period when a case is otherwise ripe for final determination. 573 So. 2d at 40. Accordingly, the amended or der is reversed and the cause is remanded to the trial court for the purpose of conducting an immediate final hearing on the question of primary residential custody and other pending matters and for entry of a final order. Each party shall be entitled to present such additional evidence as may be pertinent to the determination of the best interests of the child. Given this disposition, it is unnecessary to discuss other matters raised by the parties.

REVERSED and REMANDED.

SMITH, ZEHMER and ALLEN, JJ., concur. . On our own motion, we have consolidated the appeal of the modification order (92-2566) and the appeal of the order of dismissal (92-3418). Appellee’s pending motion to strike portions of appellant’s brief is denied. Further, the cross-appeal is dismissed as untimely.


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Citator

Cited By

  • Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993)
    …because “[a] litigant is entitled to know that a judgment determining his rights is final and will not be disturbed, except on appeal, or under the conditions prescribed by a rule.” 573 So. 2d at 40 (Citations omitted.) See also Gruner v. Westmark, 617 So. 2d 420 (Fla. 1st DCA 1993). For this reason alone, we reverse the reservation of jurisdiction on the partition issue and remand for its prompt determination. We do not reach any issue concerning the wife’s legal right to partition of this property under th…
  • Dep't OF Revenue v. Holley, 86 So. 3d 1199 (Fla. 1st DCA 2012)
    …ersal on appeal from the order reserving jurisdiction. See, e.g., Herman v. Herman, 889 So. 2d 128 (Fla. 1st DCA 2004); Gergen v. Gergen, 48 So. 3d 148 (Fla. 1st DCA 2010); Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990); Gruner v. Westmark, 617 So. 2d 420 (Fla. 1st DCA 1993); Bovet v. Bovet, 563 So. 2d 154 (Fla. 3d DCA 1990). But there is no violation of the right to due process unless the litigant is deprived of either notice or a meaningful opportunity to be heard before the court reaches a final d…
  • Anne Gergen v. Gergen, 48 So. 3d 148 (Fla. 1st DCA 2010)
    …ard. See Hawkins v. Hawkins, 895 So. 2d 1155, 1156 (Fla. 1st DCA 2005). Analogies to the deferral of child custody determinations, where the evidence presented makes the matter ripe for final determination, are unpersuasive. See Gruner v. Westmark, 617 So. 2d 420, 421-22 (Fla. 1st DCA 1993) (noting that “there was extensive evidence presented to the trial court by both parties, so that a final determination could have been made”); Martinez v. Martinez, 573 So. 2d 37, 40-41 (Fla. 1st DCA 1990) (holding the “c…
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