KATHALINA MONACELLI, APPELLANT,
v.
CARLOS GONZALEZ, JR., APPELLEE
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.
Kathalina Monacelli appealed a divorce judgment awarding her $200/month alimony and giving primary residential custody of four minor children to her husband, Carlos Gonzalez, Jr., despite his felony conviction for domestic violence. The appellate court affirmed, holding that a domestic violence conviction creates only a rebuttable presumption of detriment to children, not an absolute bar to custody, and the trial court's findings supported the conclusion that the husband overcame this presumption.
A felony conviction for domestic violence creates a rebuttable presumption of detriment to the child under Florida Statutes section 61.13(2)(b)2, but does not constitute an absolute bar to primary residential custody. The trial court may award custody to the convicted parent if the presumption is rebutted by sufficient evidence showing the parent's fitness and the child's best interests.
[1] An appellate court cannot resolve underlying factual issues to conclude a trial court's judgment is unsupported by evidence without a transcript of the trial proceedings.
[2] Absent a trial transcript, an appellate court may reverse a trial court's decision only if an error of law appears on the face of the final judgment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence ... creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.”
Establishes that domestic violence conviction creates rebuttable, not absolute, presumption against custody
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKathalina Monacelli and Carlos Gonzalez, Jr. divorced. The husband was on felony probation for hitting the wife with a frying pan. The trial court awa…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Appellate Review Without Transcript cases and more on FLexlaw
GROSS, J.
Kathalina Monacelli appeals a final judgment dissolving a marriage, awarding her $200 per month in alimony, and giving primary residential custody of the four minor children to the husband, Carlos Gonzalez, Jr. This was a difficult case and the trial judge prepared a detailed and thoughtful final judgment. The wife did not supply this court with a transcript of the trial. “Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979). Absent a transcript of the final hearing, this court may reverse the decision “only if an error of law appears on the face of the final judgment.” Whelan v. Whelan, 736 So. 2d 732, 733 (Fla. 4th DCA1999).
We write to address one issue. The wife argues that the trial court erred in awarding primary residential custody of the minor children to the husband, in spite of the husband’s history of domestic violence towards the wife. The final judgment indicates that the husband was on felony probation for hitting the wife with a frying pan.
The final judgment does not indicate that the domestic violence had any impact upon the children. No statute makes a felony conviction of domestic violence an absolute bar to being a primary residential parent. Section 61.13(2)(b)2., Florida Statutes (2003) provides that such a conviction creates a rebuttable presumption of detriment to the child:
[ejvidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence ... creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.
Because it provides that the presumption of detriment to the children may be rebutted, section 61.13(2)(b)2., contradicts the wife’s claim that the husband’s felony conviction is an automatic, absolute bar to an award of primary residential custody. The trial court’s order supports the conclusion that the husband overcame the presumption of unfitness.
The final order presents a number of reasons that support the decision to award primary residential custody to the husband. The court found that: (1) the love, affection, and other emotional ties existing between the parents and children “appeared] to be significantly greater towards” the husband; (2) the husband had the greater capacity and disposition to provide the children with food, clothing, and medical care; (3) it was desirable to maintain continuity for the children in the “comparatively stable environment” in the home of their paternal grandmother; (4) the children preferred to be with their father; and (5) the Wife suffered from bipolar disorder, for which she had been Baker Acted on three occasions, and she refused to accept any treatment or medication for her illness.
AFFIRMED.
WARNER and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cranney v. Cranney, 206 So. 3d 162 (Fla. 2d DCA 2016)…(Fla. 2d DCA 2007) (quoting § 59.041, Fla. Stat. (2004)). In the absence of a transcript, we will only reverse where the error appears on the face of the judgment. See Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2008); Monacelli v. Gonzalez, 883 So. 2d 361, 362 (Fla. 4th DCA 2004). The father has made no such showing in this ease. Consequently, we must affirm on this issue. However, we agree with the father that the trial court abused its discretion when it awarded the mother ultimate decision-making…
-
McQuade v. Landon Bruce Holroyd, 208 So. 3d 848 (Fla. 5th DCA 2017)…ort is without evidentiary support. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). In the absence of a transcript, we will only reverse where the error appears on the face of the judgment. See Monacelli v. Gonzalez, 883 So. 2d 361, 362 (Fla. 4th DCA 2004); Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003). Appellant has made no such showing in this case. AFFIRMED. COHEN, C.J., PALMER and ORFINGER, JJ,, concur.…
-
van Epps v. Hartzell, 934 So. 2d 590 (Fla. 5th DCA 2006)…gs.5 See, e.g., Fortune v. Pantin, 851 So. 2d 274 (Fla. 5th DCA 2003). There, however, is an error appearing on the face of the judgment which requires review of the fee award even in the absence of a transcript. See generally Monacelli v. Gonzalez, 883 So. 2d 361 (Fla. 4th DCA 2004). Fee awards in enforcement proceedings are governed by section 61.16, Florida Statutes. In this case, there is nothing in the final judgment that would permit a fee award because the trial court failed to make any findings, which…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Whelan v. Whelan, 736 So. 2d 732 (Fla. 4th DCA 1999)