DANEISIS LOPEZ, APPELLANT,
v.
CARLOS A. PEREZ, APPELLEE
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Lopez appeals from three trial court orders in a child custody matter: granting an emergency injunction preventing removal of a minor child, denying her motion to dissolve that injunction, and appointing a guardian ad litem/attorney for the child. The appellate court affirmed the injunction orders but reversed the guardian ad litem appointment for failing to specify the appointee's role.
The court affirmed the injunction orders, finding no abuse of discretion in granting the emergency injunction ex parte and properly denying Lopez's motion to dissolve based on competent substantial evidence. The court reversed the guardian ad litem appointment order because it failed to clearly designate whether the appointee was serving as guardian ad litem or attorney, in violation of Florida Statute § 61.401 which requires these roles to be separate individuals.
[1] An ex parte emergency injunction may be entered without an abuse of discretion.
[2] A trial court properly exercises discretion in denying a motion to dissolve a temporary injunction when supported by competent substantial evidence, including evidence th…
Previewing 2 of 4 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“the guardian and the legal counsel shall not be the same person”
Establishes the statutory requirement that guardian ad litem and attorney roles must be held by separate individuals
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Join FLexlaw to unlock all legal intelligenceCarlos Perez sought an emergency injunction to prevent Lopez from removing a minor child. The minor child had been psychiatrically hospitalized and wa…
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Daneisis Lopez appeals from three orders entered by the trial court: an order granting Carlos Perez’s verified motion for temporary injunction to prevent removal of the minor child; an order denying Da-neisis Lopez’s verified motion to dissolve the temporary injunction and for immediate return of the minor child; and an “order appointing lawyer/guardian ad li-tem” for the minor child. We affirm in part and reverse in part.
We find no abuse of discretion in the trial court’s entry of an emergency injunction on an ex parte basis. We further find that the trial court properly exercised its discretion, supported by competent substantial evidence,1 in its *1205subsequent order denying Lopez’s motion to dissolve the temporary injunction. We find no denial of due process in the manner in which the trial court addressed these motions and further conclude that the evidence supported Perez’s assertion that the minor child had been psychiat-rically hospitalized and was in need of immediate mental health treatment, given the evidence that the minor child was then a present danger to the child’s self or others.2
However, we reverse the third order, entitled “Order Appointing Attorney/Guardian Ad Litem” for the minor child. It is true that the court has the discretion, if it finds it is in the best interest of the child, to appoint a guardian ad litem to act as next friend of the child. § 61.401, Fla. Stat. (2016). The court also has the discretion to appoint legal counsel for a child to act as attorney or advocate. Id. However, the statute expressly provides that “the guardian and the legal counsel shall not be the same person.” Id. The order is unclear as to the appointed person’s capacity, and Lopez correctly argues that one could reasonably read the order as encompassing both capacities. The trial court erred in entering such an order without designating whether the individual is appointed to act as guardian ad litem or as attorney for the minor child, and delineating the powers and responsibilities corresponding with such appointment. We therefore reverse that order and remand this cause for further proceedings not inconsistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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Citator
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Waldon v. In re Guardianship of Charles Waldon, 305 So. 3d 634 (Fla. 3d DCA 2020)…founded on substantial competent evidence.” In re Guardianship of Sitter, 779 So. 2d 346, 348 (Fla. 2d DCA 2000). Moreover, “we must view the facts below in a light most favorable to sustaining the determination of the trial court.” Lopez v. Perez, 221 So. 3d 1204, 1205 n.1 (Fla. 3d DCA 2016). Analysis The lower court’s exercise of discretion in appointing Alger as the guardian was pursuant to section 744.312, Florida Statutes (2018).4 A court may not appoint 4 Section 744.312, governing considerations in a…
Authorities Cited
- Regan v. Regan, 660 So. 2d 1166 (Fla. 3d DCA 1995)
- Moore v. Staalac, Inc., 166 So. 2d 814 (Fla. 3d DCA 1964)
- Mathis v. State, 166 So. 2d 814 (Fla. 2d DCA 1964)