STEPHEN MILTON, FORMER HUSBAND, APPELLANT,
v.
JULIANNA MILTON, FORMER WIFE, APPELLEE

Fla. 1st DCA | 2013-06-05
No. 1D13-0310
BENTON, C.J. and THOMAS, J., concur.
113 So. 3d 1040 Florida District Court of Appeal, First District (2013) Positive Treatment
Cited by 29 cases

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Synopsis

Stephen Milton appealed a trial court order that failed to hold his former wife Julianna in contempt for violating a time-sharing agreement and did not order return of their minor child from New York. The First District Court of Appeal affirmed the trial court's discretionary decision not to hold the mother in contempt but reversed regarding the unauthorized relocation, finding the mother violated Florida's relocation statute by failing to file a required petition.


Holding

The trial court did not abuse its discretion in declining to hold the mother in contempt. However, the trial court erred in permitting the child's relocation because the mother failed to comply with section 61.13001, Florida Statutes, which unambiguously requires either parental agreement or filing a proper relocation petition before a court may order temporary relocation. The matter is remanded for the trial court to take evidence on the child's best interests and determine appropriate relief.


Headnotes

[1] A trial court's decision to hold a party in contempt is reviewed for abuse of discretion.

[2] A trial court is not required to hold a party in contempt for violating a time-sharing agreement.

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Key Quotes

“Section 61.13001(3)(a) unambiguously requires that, absent agreement of both parents, a parent wishing to relocate file a petition and the petition be served on the other parent.”

Establishes the clear statutory mandate that relocation requires either parental agreement or a properly filed petition—which the mother failed to provide.

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Facts & Procedural History

Stephen and Julianna Milton were former spouses with a minor child. A 2008 temporary injunction contained their time-sharing agreement. Stephen sought…

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Opinion of the Court
CLARK, J.

CLARK, J.

In this appeal, Stephen Milton seeks review of a trial court order which did not hold Julianna Milton in contempt of court or otherwise order the return of the couple’s minor child to the State of Florida. He argues three grounds for reversal of the trial court’s order. We find merit in one — that the trial court erred by permitting Mrs. Milton to keep the minor child in New York.

He first argues the trial court was required to order make-up timeshar-ing and hold Mrs. Milton in contempt for her willful violation of a time-sharing agreement between the parents. There is nothing that requires a trial court to hold a person in contempt; the court’s determination in this regard is reviewed for abuse of discretion. Nunes v. Nunes, 112 So.3d 696 *1041(Fla. 4th DCA 2018). Given the record before us, we cannot say it was an abuse of discretion to not hold Mrs. Milton in contempt. See Cummings v. Cummings, 723 So.2d 898, 899 (Fla. 4th DCA 1998) (order of make-up time does not necessitate holding party in contempt).

Second, Mr. Milton sought to end the parties’ time-sharing agreement by affirmatively seeking dissolution of the 2008 temporary injunction which contained it— this was the only document which contained any agreement between the parties as to timesharing. Thus, when the trial court dissolved the temporary injunction, the slate was clean and the trial court was bound to make a best interests determination and take evidence concerning a new time-sharing arrangement. Delivorias v. Delivorias, 80 So.3d 352, 356 (Fla. 1st DCA 2011) (acknowledging “the hallowed doctrine that before modifying custody temporarily or ordering any other type of makeup time-sharing, a trial court must consider the child’s best interests”). Mr. Milton’s argument that the trial court erred by modifying an existing time-sharing agreement without proper notice is therefore without merit. Once dissolved, the court did not modify an existing agreement; it was left to create one anew. Further, Mr. Milton invited the trial court to dissolve the injunction and put himself in the predicament of being without a valid time-sharing arrangement.

With this the situation, it was incumbent upon the trial court to properly notice and take evidence on the best interests of the child before ordering the statutorily required make-up time or determining a new time-sharing arrangement. Id. at 356; cf. Cheek v. Hesik, 73 So.3d 340, 343-44 (Fla. 1st DCA 2011) (acknowledging no competent, substantial evidence of best interests existed to support order of make-up time that neither party sought nor argued for and which mandated a drastic and disruptive make-up plan).

As to Mr. Milton’s final issue regarding Mrs. Milton’s relocation of the minor child to New York, however, we reverse. This Court reviews relocation determinations for abuse of discretion; however, ' the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Raulerson v. Wright, 60 So.3d 487, 489 (Fla. 1st DCA 2011). Here, Mr. Milton relies on section 61.13001, Florida Statutes, and Raulerson, to assert that because Mrs. Milton did not comply with section 61.13001, the trial court erred in permitting the child’s relocation, even if temporary. He is correct.

Section 61.13001(3)(a) unambiguously requires that, absent agreement of both parents, a parent wishing to relocate file a petition and the petition be served on the other parent. § 61.13001(3), Fla. Stat. Only where the relocating parent files a proper petition may the court order temporary relocation pending final determination. § 61.13001(6)(b). This Court has previously made clear that these requirements are unambiguous and are “a clear statutory mandate.” Raulerson, 60 So.3d at 490; see also Rivero v. Rivero, 111 So.3d 233 (Fla. 4th DCA Apr.10, 2013).

Here, there was no such agreement or petition. And, Mrs. Milton does not contest that she and the child relocated to New York. Accordingly, she is subject “to contempt and other proceedings to compel the return of the child”; additionally, the court may grant other relief, including restraining relocation or ordering the child’s return. § 61.13001(3)(e), (6)(a), Fla. Stat.1 *1042Therefore, the trial court erred in permitting the minor child’s temporary relocation pending final determination. See Rauler-son, 60 So.3d at 490.

That said, the parties were not prepared to have a full hearing on the best interests of the child — a necessary consideration to the relocation question, which takes into account certain statutorily specified factors. § 61.18001(7), Fla. Stat.; Conners v. Mullins, 27 So.3d 199, 200 (Fla. 1st DCA 2010). Like in Raulerson, Mr. Milton limited his argument at the hearing to the permissibility of Mrs. Milton’s relocation without following the statutory requirements. It is clear she did not follow the requirements and Mr. Milton was thus entitled to some relief — what relief, exactly, is not mandated by statute and is a matter of the trial court’s discretion. We do not pass on what the exact specifications of the trial court’s order on remand should be.

“[W]e recognize the difficulty faced by the trial court in crafting a remedy that provides meaningful makeup time-sharing for an out-of-state father where the record reflects that the mother has refused to comply with court orders and has shown little to no interest in the child having a relationship with his father.” Cheek, 73 So.3d at 345. Nevertheless, “before ordering a temporary change of custody or any other type of makeup time-sharing, the trial court was required to consider the best interests of the child.” Id.; see also Conners, 27 So.3d at 200 (explaining that on remand the trial court need not consider “whether [it] would have permitted the relocation in the first place but whether the actual relocation was in the child’s best interests pursuant to the factors set forth in section 61.13001(7)”).

Accordingly, the case is remanded to accomplish what the trial court had already begun before this appeal. After taking evidence on the best interests of the child, the trial court may appropriately order relief for Mrs. Miltons unauthorized relocation and on Mr. Miltons specific entitlement to make-up time. This will also be necessary before creation of a final time-sharing agreement and the ultimate dissolution of the parties marriage. We encourage the trial court to promptly set this case for a status conference and determine these pending matters as expeditiously as possible.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BENTON, C.J. and THOMAS, J., concur.


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Citator

Cited By (16 total)

  • Adel Vaelizadeh v. Mahnaz Hossaini, 174 So. 3d 579 (Fla. 4th DCA 2015)
    …ion for rehearing. This appeal followed. The father argues good cause existed to preclude entry- of the relocation judgment despite the father’s untimely response to the mother’s petition. We employ a mixed standard of review. See Milton v. Milton, 113 So. 3d 1040, 1041 (Fla. 1st DCA 2013) (an appellate court “reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo”); Rossman v. Pro…
  • Brooks v. Kimberlee Brooks, 164 So. 3d 162 (Fla. 2d DCA 2015)
    …(Fla. 3d DCA 2012). Under Florida law, “[t]here is nothing that requires a trial court to hold a person in contempt” for violating a time-sharing plan, and a trial court does not abuse its discretion simply by declining to do so. Milton v. Milton, 113 So. 3d 1040, 1040 (Fla. 1st DCA 2013). As was its prerogative, the trial court opted to not hold the Mother in contempt, not for lack of a factual basis, but as a means of discouraging further vindictive and vexatious litigation between the parties. Because the…
  • Chalmers v. Chalmers, 259 So. 3d 878 (Fla. 4th DCA 2018)
    …o follow the mixed standard of review which applies to this case. “[T]he question of whether the trial court properly applied the relocation statute [section 61.13001, Florida Statutes] is a matter of law, reviewed de novo.” Milton v. Milton, 113 So. 3d 1040, 1041 (Fla. 1st DCA 2013). However, “the [appellate] court reviews the trial court’s decision on a petition to relocate with a minor child under an abuse of discretion standard. The trial court’s decision will be affirmed if the statutory find…

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