# Third District Court of Appeal

State of Florida

Opinion filed June 20, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-1553

Lower Tribunal No. 16-1705

________________



### David Solomon

, Appellant,

vs.



### Sofia Vasquez Solomon

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Valerie Manno

Schurr

, Judge.

Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.

Cynthia J. Dienstag, P.A., and Cynthia J. Dienstag, for appellee.

Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.

LAGOA, J.

David Solomon (the “husband”) appeals from a Final Judgment of

Dissolution of Marriage with Dependent or Minor Children (the “FinalJudgment”), and he raises several arguments on appeal, only one of which warrants

discussion. Because the Final Judgment does not set forth specific steps that the

husband must take in order to obtain unsupervised time sharing with his children,

we reverse and remand to the trial court for the limited purpose of setting forth

such steps, and otherwise affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The husband and Sofia Vasquez (the “wife”) were married on July 12, 2001.

The husband and wife have two minor children from the marriage. The wife filed

a petition for dissolution of marriage on January 25, 2016. With the filing of the

petition for dissolution, the wife also obtained a temporary injunction for

protection against domestic violence, which prevented the husband from having

contact with the wife and the children. The husband filed a counter-petition for

dissolution of marriage.

On April 19, 2016, the trial court entered an agreed order appointing Jerome

H. Poliacoff, Ph.D. (“Poliacoff”), to examine the parties and the children and make

recommendations pursuant to section 61.13, Florida Statutes (2016). Poliacoff

rendered his report on July 11, 2016 (the “Poliacoff Report”). Poliacoff

recommended supervised visitation between the husband and the children, which

“should begin with a goal of ending in a short time frame.” Under a section

entitled “Review and Revision,” Poliacoff recommended that the plan be reviewed

2every three months by a guardian ad litem with the stated goal of increasing access

time for the husband with the children.

The husband states that on July 13, 2016, the parties agreed to extend the

temporary injunction for a year and to amend the temporary injunction to provide

that the husband have supervised time-sharing with the children in accordance with

the Poliacoff Report. On August 15, 2016, the trial court entered an agreed order

appointing Terilee Wunderman, Ph. D., as guardian ad litem for the children.

The matter proceeded to trial on April 20, 2017. On May 3, 2017, the trial

court entered a Final Judgment, and attached to the Final Judgment were the

Poliacoff Report and a Guardian ad Litem Status Report Update dated April 13,

2017 (the “Guardian’s Status Report”). The Guardian’s Status Report

recommended that the husband continue with his individual therapy and that

“[u]nsupervised visits between [the husband and the children] should be

considered as the next step in this family’s healing process.”

Paragraph “5.C.” of the Final Judgment, entitled “Parenting Plan,” provides

in relevant part:

The Court adopts the Evaluation of Jerome H. Poliacoff,

PhD, attached as Exhibit B, and the Guardian Ad Litem

Status Report Update dated April 13, 2017, attached as

Exhibit C, as the Parenting Plan to be followed by the

parties at this time. The Father’s supervised time sharing

shall continue

. . . . Terrilee Wunderman shall continue

her role as Guardian Ad Litem for the two minor children

pursuant to previous court order. Individual therapy for

3the Husband shall continue

. . . . The Wife and the

children shall participate in family therapy on an as

needed basis.

On May 18, 2017, the husband filed a Motion for Rehearing and/or

Reconsideration. On June 9, 2017, the trial court denied the Motion for Rehearing

and/or Reconsideration. This appeal followed.

II. ANALYSIS

“The failure to ‘set forth any specific requirements or standards’ for the

alleviation of timesharing restrictions is error. This applies to both the prevention

of timesharing altogether and to restrictions.” Witt-Bahls v. Bahls

, 193 So. 3d 35,

38 (Fla. 4th DCA 2016) (citation omitted) (quoting Ross v. Botha

, 867 So. 2d 567,

571 (Fla. 4th DCA 2004)). Where a final judgment fails to set forth what steps a

parent must take in order to establish unsupervised timesharing, the final judgment

must be reversed and remanded for the trial court to identify such steps. Tzynder

v. Edelsburg

, 184 So. 3d 583, 583 (Fla. 3d DCA 2016) (reversing and remanding

for the trial court to identify the necessary steps for the parent to reestablish

unsupervised timesharing with child where the final judgment restricted

timesharing to supervised contact one time per week); see also Curiale v. Curiale

,

220 So. 3d 554, 555 (Fla. 2d DCA 2017); Perez v. Fay

, 160 So. 3d 459, 466 (Fla.

2d DCA 2015) (finding that “the amended supplemental final judgment is legally

deficient on its face because it does not set forth what steps the Mother must take

4to regain primary residential custody and/or meaningful unsupervised time-sharing

with her daughter”). But see Dukes v. Griffin

, 230 So. 3d 155, 157 (Fla. 1st DCA

2017) (stating that vesting trial courts with authority to enumerate steps to remodify timesharing schedules and alleviate timesharing restrictions “appears

contrary to § 61.13(3), Florida Statutes, which sets forth its own specific

requirements for modifying parenting plans, including time-sharing schedules” and

certifying conflict with Perez

, 160 So. 3d 459, and Witt-Bahls

, 193 So. 3d 35, and

other cases addressing the issue).

Here, the trial court adopted the Poliacoff Report and the Guardian’s Status

Report as the parenting plan in the Final Judgment. The Poliacoff Report

recommended that the supervised visitation between the husband and his children

“begin with a goal of ending in a short time frame” and that the plan be reviewed

every three months by a guardian ad litem with the stated goal of increasing access

time for the husband with the children. The Guardian’s Status Report, issued one

month before the final judgment, recommended that “[u]nsupervised visits

between [the husband and the children] should be considered as the next step in

this family’s healing process.” Each report, therefore, stated that the supervised

nature of the timesharing should not be permanent, but neither identified the steps

necessary for the father to terminate supervised timesharing. In adopting the

reports as the parenting plan, the trial court therefore failed to set forth specific

5benchmarks or identify for the husband the steps necessary to terminate the

supervised timesharing. Although a trial court is not required to set forth “every

minute detail of the steps to reestablish unsupervised timesharing[,]

. . . [t]he

requirement is for the [husband] to walk out of the courtroom knowing that if [he]

satisfactorily accomplishes relatively specific tasks, [he] will be able to reestablish

unsupervised timesharing.” Witt-Bahls

, 193 So. 3d at 39 (citation omitted).

We therefore reverse the Final Judgment to the extent it fails to provide the

husband with the specific steps he must undertake in order to obtain unsupervised

timesharing with his children. On remand, the trial court is instructed to amend the

Final Judgment to identify such steps. See Tzynder

, 184 So. 3d at 583. The Final

Judgment is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

ROTHENBERG, C.J., and LOGUE, J., concur.

6Solomon v. Solomon

Case No. 3D17-1553

LAGOA, J., specially concurring,

I write separately to address section 61.13(3), Florida Statutes (2018). i Our

precedent in Tzynder v. Edelsburg

, 184 So. 3d 583 (Fla. 3d DCA 2016), as well as

opinions from other district courts, Witt-Bahls v. Bahls

, 193 So. 3d 35 (Fla. 4th

DCA 2016), and Perez v. Fay

, 160 So. 3d 459 (Fla. 2d DCA 2015), require the trial

court to set forth in its final judgment or order the specific steps necessary to

reestablish unsupervised timesharing, and the trial court’s failure to include such

steps render the judgment or order legally deficient. Because we are bound by our

prior precedent, I join the majority’s opinion.

These cases, however, appear to establish a judicially created requirement

not supported by the statutory language of section 61.13(3). “‘[W]hen the

language of the statute is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory interpretation

and construction; the statute must be given its plain and obvious meaning.’”

Atwater v. Kortum

, 95 So. 3d 85, 90 (Fla. 2012) (quoting Holly v. Auld

, 450 So.

2d 217, 219 (Fla. 1984)); see also DMB Inv. Tr. v. Islamorada, Village of Islands

,

225 So. 3d 312, 317 (Fla. 3d DCA 2017) (“‘The Legislature must be understood to

mean what it has plainly expressed and this excludes construction. The Legislative

7intent being plainly expressed, so that the act read by itself or in connection with

other statutes pertaining to the same subject is clear, certain and unambiguous, the

courts have only the simple and obvious duty to enforce the law according to its

terms.’” (quoting Forsythe v. Longboat Key Beach Erosion Control Dist.

, 604 So.

2d 452, 454 (Fla. 1992))). “Florida courts are ‘without power to construe an

unambiguous statute in a way which would extend, modify, or limit, its express

terms or its reasonable and obvious implications. To do so would be an abrogation

of legislative power.’” Brown v. City of Vero Beach

, 64 So. 3d 172, 174 (Fla. 4th

DCA 2011) (emphasis omitted) (quoting Holly

, 450 So. 2d at 219).

The language of section 61.13(3) is clear and unambiguous, and sets forth

specific requirements for modifying parenting plans including time-sharing

schedules. While it is certainly understandable that a parent would want to know

the specific steps necessary to restore time-sharing with his or her child, “it is not

the prerogative of the courts to rewrite a statute,” Westphal v. City of St.

Petersburg

, 194 So. 3d 311, 321 (Fla. 2016), and section 61.13(3) does not

mandate the inclusion of such steps in a trial court’s judgment or order. Because

section 61.13(3) contains no language mandating that a trial court set forth the

specific steps a parent must take in order to reestablish time-sharing with a child, I

therefore agree with the reasoning set forth in our sister court’s decision in Dukes

v. Griffin

, 230 So. 3d 155 (Fla. 1st DCA 2017), and would certify conflict.

8i Section 61.13(3) states, in relevant part:

(3) For purposes of establishing or modifying parental

responsibility and creating, developing, approving, or

modifying a parenting plan, including a time-sharing

schedule

, which governs each parent's relationship with

his or her minor child and the relationship between each

parent with regard to his or her minor child, the best

interest of the child shall be the primary consideration. A

determination of parental responsibility, a parenting plan,

or a time-sharing schedule may not be modified without a

showing of a substantial, material, and unanticipated

change in circumstances and a determination that the

modification is in the best interests of the child.

Determination of the best interests of the child shall be

made by evaluating all of the factors affecting the welfare

and interests of the particular minor child and the

circumstances of that family, including, but not limited

to:

(a) The demonstrated capacity and disposition of each

parent to facilitate and encourage a close and continuing

parent-child relationship, to honor the time-sharing

schedule, and to be reasonable when changes are

required.

(b) The anticipated division of parental responsibilities

after the litigation, including the extent to which parental

responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each

parent to determine, consider, and act upon the needs of

the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable,

satisfactory environment and the desirability of

maintaining continuity.

9(e) The geographic viability of the parenting plan, with

special attention paid to the needs of school-age children

and the amount of time to be spent traveling to effectuate

the parenting plan. This factor does not create a

presumption for or against relocation of either parent

with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the

child.

(i) The reasonable preference of the child, if the court

deems the child to be of sufficient intelligence,

understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and

disposition of each parent to be informed of the

circumstances of the minor child, including, but not

limited to, the child's friends, teachers, medical care

providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each

parent to provide a consistent routine for the child, such

as discipline, and daily schedules for homework, meals,

and bedtime.

( l ) The demonstrated capacity of each parent to

communicate with and keep the other parent informed of

issues and activities regarding the minor child, and the

willingness of each parent to adopt a unified front on all

major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence,

child abuse, child abandonment, or child neglect,

regardless of whether a prior or pending action relating to

10those issues has been brought. If the court accepts

evidence of prior or pending actions regarding domestic

violence, sexual violence, child abuse, child

abandonment, or child neglect, the court must

specifically acknowledge in writing that such evidence

was considered when evaluating the best interests of the

child.

(n) Evidence that either parent has knowingly provided

false information to the court regarding any prior or

pending action regarding domestic violence, sexual

violence, child abuse, child abandonment, or child

neglect.

(o) The particular parenting tasks customarily performed

by each parent and the division of parental

responsibilities before the institution of litigation and

during the pending litigation, including the extent to

which parenting responsibilities were undertaken by third

parties.

(p) The demonstrated capacity and disposition of each

parent to participate and be involved in the child's school

and extracurricular activities.

(q) The demonstrated capacity and disposition of each

parent to maintain an environment for the child which is

free from substance abuse.

(r) The capacity and disposition of each parent to protect

the child from the ongoing litigation as demonstrated by

not discussing the litigation with the child, not sharing

documents or electronic media related to the litigation

with the child, and refraining from disparaging comments

about the other parent to the child.

(s) The developmental stages and needs of the child and

the demonstrated capacity and disposition of each parent

to meet the child's developmental needs.

11(t) Any other factor that is relevant to the determination of a specific

parenting plan, including the time-sharing schedule.

§ 61.13(3), Fla. Stat. (2018) (emphasis added).

12