CANDICE WOLFSON, PETITIONER,
v.
HOWARD WOLFSON, RESPONDENT
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The trial court departed from the essential requirements of law by entering an order for temporary supervised visitation without providing both parties an opportunity to be heard.
[1] A trial court departs from the essential requirements of law when it enters an order granting temporary supervised visitation without providing both parties an opportunit…
[2] Unless a party can prove modification is required by a substantial and material change in circumstances and that the child's best interest will be promoted by such a modi…
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution, the parents engaged in extensive litigation over child custody. The trial court entered an order for temporary supervised vis…
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Candice Wolfson petitions for certiorari relief from an order granting an emergency request for temporary supervised visitation with her son. Because the trial court departed from the essential requirements of law when it entered the order without providing both parties an opportunity to be heard in this post-dissolution child custody dispute, we grant the petition and remand for further proceedings.
This case has had a tortured, post-dissolution procedural history. Since the final judgment of dissolution was entered on August 28, 2012, incorporating a mediated marital settlement agreement and detailed parenting plan, the parties have engaged in continuous, unending litigation over their then four-year-old, now seven-year-old son. In October 2014, the father, Howard Wolfson, petitioned for modification of the parties’ parenting plan, which provided for shared parental responsibility and equal time sharing with the child. Mr. Wolfson sought sole parental responsibility and limited supervised visitation by the mother. He also moved the trial court, on an emergency basis, to suspend the mother’s contact with the child while the petition for modification was litigated on the ground the mother was alienating the child from him and causing the child psychological harm. Mrs. Wolfson filed a mirror-image counter-petition in which she sought the same relief, except in her favor.
The matter initially was assigned to Judge Valerie Manno Schurr, who, on December 11, 2014, commenced an evidentia-ry hearing. Mr. Wolfson presented the testimony of Dr. Cohn, the child’s psychologist, and 'Dr. Shaw, the child’s psychiatrist, in support of his allegation of harm to the child. Unfortunately, the trial court was unable to conclude the hearing, and Mrs. Wolfson did not have the opportunity to present any evidence. At the time, the child was residing with the father, and Judge Manno Schurr orally ordered the *1138child to temporarily remain in the custody of the father, with supervised telephone contact and supervised short visits with the mother. Judge Manno Schurr intended to continue the evidentiary hearing within a couple of weeks; however, a few days thereafter she recused herself.
The case then was reassigned to Judge Stanford Blake, who began a retrial of the matter. Over two days, Mr. Wolfson presented his case, again calling Dr. Shaw and Dr. "Cohn, in addition to Dr. Gold, the child’s occupational therapist. Once again, the time set aside for the hearing proved to be insufficient and Mrs. Wolfson could not present her case. Judge Blake ordered the supervised visits to continue until the matter could be concluded, intending to promptly set aside time to do so. Regrettably, Judge Blake was taken ill and took medical leave.
Judge Judy Kreeger next inherited the case and decided to continue presentation of the evidence instead of rehearing from the witnesses who previously testified. Mr. Wolfson’s counsel continued and finished presentation of the father’s case between March 9 and March 16, 2015. Before presenting her case, Mrs. Wolfson moved to disqualify Judge Kreeger. Her motion was denied, but later overturned by this Court on Mrs. Wolfson’s petition for writ of prohibition.
By the time jurisdiction returned to the trial court, Judge Blake had returned to the bench and the parties scheduled various pending motions before him. On July 27, 2015, Judge Blake entered the order on appeal, based on the evidence previously heard by him in February 2015, which ordered continued emergency temporary supervised visitation and telephone contact pending conclusion of the hearing on the petitions for modification.
Unless a party can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification, a trial court should not disturb the child custody determinations made final by a judgment of dissolution of marriage. Wade v. Hirschman, 903 So.2d 928 (Fla.2005). Generally, both parties must be given notice and opportunity to be heard on the matter prior to any modification, unless there is an actual, demonstrated emergency situation, “such as where a child is threatened with physical harm or is about to be improperly removed from the state.” Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006); see also Bronstein v. Bronstein, 167 So.3d 462 (Fla. 3d DCA 2015); Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995). Even in such instances, “every reasonable effort should be made to ensure both parties have an opportunity to be heard.” Ashby v. Murray, 113 So.3d 951, 954 (Fla. 5th DCA 2013); see also Haddix v. Emret, 992 So.2d 883, 886 (Fla. 2d DCA 2008) (“To conduct a proper inquiry into these issues, both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify.”).
Based on the foregoing authorities, we are compelled to find that the trial court departed from the essential requirements of law by temporarily modifying the child’s parenting plan without a full hearing in which the mother was permitted to present her case. Accordingly, we quash the order under review and remand the case to the trial court to promptly reconsider the issue of the mother’s supervised visitation and conclude the evidentiary hearing on the parties’ petition for modification forthwith.
Petition granted; remanded with instructions.
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Munoz v. Munoz Salgado, 253 So. 3d 87 (Fla. 3d DCA 2018)…he mother’s emergency motion to modify timesharing. Because the trial court modified timesharing without giving the father a meaningful opportunity to be heard, the trial court violated the father’s right to due process of law. Wolfson v. Wolfson, 173 So. 3d 1136, 1138 (Fla. 3d DCA 2015), clarified, 173 So. 3d 1146 (Fla. 3d DCA 2015) (granting a petition for writ of certiorari where the trial court entered an order modifying a parenting plan without holding a full hearing where both parties are given an o…
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Roberts v. Anyzeila Diaz, 343 So. 3d 156 (Fla. 3d DCA 2022)…was not bound to adopt the relief requested within Former Husband’s motion to modify the parties’ timesharing schedule. Generally, both parties must be given notice and an opportunity to be heard prior to any modification. Wolfson v. Wolfson, 173 So. 3d 1136, 1138 (Fla. 3d DCA 2015), opinion clarified, 173 So. 3d 1146 (Fla. 3d DCA 2015). Here, the Former Husband filed a motion to modify the timesharing schedule and included a proposed schedule. The Former Wife responded with her own proposed timesh…
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Wolfson v. Wolfson, 185 So. 3d 1273 (Fla. 3d DCA 2016)…ress any opinion of this Court on the resolution of the matters before it. Motion denied.- . . The litigation in this case is fueled, it seems, by limitless resources. See Wolfson v. Wolfson, 173 So. 3d 1146 (Fla. 3d DCA 2015); Wolfson v. Wolfson, 173 So. 3d 1136 (Fla. 3d DCA 2015); Wolfson v. Wolfson, 2015 WL 6473140, No. 3D15-1808 (Fla. 3d DCA Aug. 31, 2015); Wolfson v. Wolfson, 159 So. 3d 394 (Fla. 3d DCA 2015); Wolfson v. Wolfson, 2015 WL 745770, No. 15-99 (Fla. 3d DCA Jan. 28, 2015). . The family court…
Authorities Cited
- Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005)
- Gielchinsky v. Gielchinsky, 662 So. 2d 732 (Fla. 4th DCA 1995)
- Gordon v. Gordon, 932 So. 2d 393 (Fla. 4th DCA 2006)
- Bronstein v. Tal Bronstein, 167 So. 3d 462 (Fla. 3d DCA 2015)
- Haddix v. Emret, 992 So. 2d 883 (Fla. 2d DCA 2008)
- Camila Ashby v. Murray, 113 So. 3d 951 (Fla. 5th DCA 2013)
- Lawrence v. Dep't OF Revenue o/b/o Melissa Walker, 113 So. 3d 951 (Fla. 5th DCA 2013)