NEHA PATEL, APPELLANT,
v.
RASESH PATEL, APPELLEE

Fla. 2d DCA | 2017-09-15
No. Case No. 2D16-4488
SILBERMAN and CRENSHAW, JJ., concur.
226 So. 3d 361 Florida District Court of Appeal, Second District (2017)

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Holding

The court affirmed the denial of a motion to modify time-sharing but remanded to strike language improperly determining the child's best interests prospectively.


Headnotes

[1] A trial court may not determine a child's best interests prospectively when considering a modification of a final judgment of dissolution of marriage.

[2] A party seeking to modify a final judgment of dissolution of marriage as it relates to time-sharing must establish a substantial, material, and unanticipated change in ci…

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Facts & Procedural History

The mother moved to modify the final judgment of dissolution of marriage regarding time-sharing. The trial court denied the motion, finding a substant…

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Opinion of the Court
BLACK, Judge.

BLACK, Judge.

We affirm the order on modification of final judgment of dissolution of marriage, which denies Neha Patel’s motion to modify the final judgment as it relates to time-sharing. Competent substantial evidence supports the trial court’s finding that Ms. Patel met her burden of establishing a substantial, material, and unanticipated change in circumstances since the entry of the final judgment of dissolution of marriage. See Wade v. Hirschman, 903 So.2d 928, 934 (Fla. 2005) (“A decree for purposes of the substantial change test includes both a decree that has incorporated a stipulated agreement concerning child custody and a decree awarding custody after an adversarial hearing.”). And we find no error in the court’s determination that modification was not in the child’s best interests at the time of the evidentia-ry hearing.

However, we remand with directions that the trial court strike the language of paragraph eleven following its finding that it is not in the minor child’s best interests to modify the current timesharing and parental responsibility “at this time.”1 The trial court may neither determine the child’s best interests prospectively, see Eisele v. Eisele, 91 So.3d 873, 874-75 (Fla. 2d DCA 2012), nor delegate its statutory duties to a parent or expert, Grigsby v. Grigsby, 39 So.3d 453, 457 (Fla. 2d DCA 2010). Future motions to modify the final judgment with regard to timesharing are governed by the statutory requirements to establish a “substantial, material, and unanticipated change in circumstances” since entry of the final judgment—which has been met in this case—and that “modification is in the best interests of the child.” See § 61.13(3), Fla. Stat. (2016); see also Howell v. Howell, 207 So.2d 507, 511-12 (Fla. 2d DCA 1968) (discussing the law of the case doctriné).

Affirmed; remanded with instructions.

SILBERMAN and CRENSHAW, JJ., concur.


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