FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D19-0102

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MELISSA JEAN THOMAS,

Appellant,

v.

HENRITHSON JOSEPH,

Appellee.

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On appeal from the Circuit Court for Columbia County.

Paul S. Bryan, Judge.

September 18, 2019

BILBREY, J.

Melissa Jean Thomas, the former wife, appeals the amended 

order on the supplemental petition to modify parenting plan filed 

by Henrithson Joseph, the former husband. The issue presented 

on appeal is whether shared parental responsibility and 

timesharing between the parties as established by a final 

judgment of dissolution of marriage may thereafter be modified 

without findings that the modification is in the best interests of 

the child. Although the former wife is not the child’s biological 

mother, we hold that under the circumstances of this case, the 

amended order is erroneous on its face, and it must be reversed 

and remanded for further proceedings. 

Background

In 2008, during the marriage of Ms. Thomas and Mr. Joseph, 

they adopted I.J. Also during the marriage, Mr. Joseph 
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purportedly fathered Z.J. Unlike I.J., no record evidence was 

presented during the dissolution or the modification that Z.J. was 

adopted by Ms. Thomas. It was established during the dissolution 

that Z.J.’s biological mother was a relative of Ms. Thomas and that 

shortly after Z.J.’s birth, the birth mother voluntarily gave Z.J. to 

Ms. Thomas and Mr. Joseph to raise as their own. Z.J.’s birth 

certificate listed no father but listed the child’s surname as 

“Joseph.” 

The marriage of Ms. Thomas and Mr. Joseph was dissolved by 

the final judgment of dissolution entered December 26, 2012. In 

the final judgment, the trial court found that the parties agreed 

that Z.J. “is the biological child of the Husband, but is not the 

biological child of the Wife.” The court recognized the parties’ 

agreement “that the children should remain together and that the 

parties will have shared parental responsibility [of both I.J. and 

Z.J.], with the Wife having majority timesharing with both 

children and the Husband having timesharing with them every 

other weekend.” 

The court provided Mr. Joseph “timesharing with the children 

every other weekend” and as the parties agreed for holidays. The 

final judgment specified how exchanges of the children would take 

place and provided that more specific orders regarding 

timesharing could be sought by either party.1 Finally, the court 

ordered that “[t]he parties may modify as they mutually agree” but 

if they could not agree, “the timesharing arrangement ordered 

herein shall control.” No appeal was taken from the final judgment

of dissolution of marriage. 

In May 2018, Mr. Joseph filed his supplemental petition to 

modify parental responsibility. He alleged certain changes in 

circumstances since the entry of the final judgment of dissolution, 

including his superior ability to provide a stable and comfortable 

home for the children and his concern about the living conditions 

and care Ms. Thomas provided. Based on these allegations of 

 1 The final judgment also denied any authority over the 

children for an unrelated third party, Mr. Joseph’s girlfriend. This 

person was not a party to the dissolution action, the modification 

proceeding, or this appeal. 
3

changed circumstances, Mr. Joseph sought sole parental authority 

and timesharing of Z.J., and at least equal timesharing with I.J. 

In her response, Ms. Thomas denied Mr. Joseph’s allegations 

and specifically denied that she failed to properly care for the 

children. In that response Ms. Thomas also “affirmatively asserts 

that the Former Husband is not the biological father of the minor 

child [Z.J.].”2 

The court heard Mr. Joseph’s supplemental petition to modify 

in October 2018. The hearing was not transcribed, but a 

stipulation of the evidence was prepared and approved for this 

appeal. See Fla. R. App. P. 9.200(b)(5). The approved stipulated 

evidence included Z.J.’s date of birth; that his “biological mother” 

was related to Ms. Thomas “in some way” but was now deceased; 

that Z.J.’s birth certificate lists his surname as “Joseph;” and that 

Z.J. lived with Ms. Thomas and Mr. Joseph beginning shortly after 

the birth in 2008, and resided primarily with Ms. Thomas after the 

final judgment of dissolution was entered in 2012. The stipulated 

testimony included Mr. Joseph’s acknowledgment that he had 

denied he was Z.J.’s biological father in two court filings 

subsequent to the final judgment (in child support proceedings) 

and that he is not actually Z.J.’s biological father. However, he 

“accepts the determination that he is the biological father.” 

In its amended order on the supplemental petition to modify 

the parenting plan, the trial court found “an unforeseen 

substantial change in circumstances has been shown” but did not 

elaborate. See § 61.13(2)(c), Fla. Stat. (2018). The court also found 

that the final judgment “clearly shows” that Ms. Thomas is not a 

“parent” of Z.J. and, while there was no DNA evidence of 

parenthood, “no one other than [Mr. Joseph] has established any 

legal/court-ordered right to the child.” The court ordered that Mr. 

Joseph was Z.J.’s “only living legal parent” and thus “may exercise 

all parental authority regarding [Z.J.], including where he resides 

and with whom.” Accordingly, the amended order eliminated any 

parental status, parental responsibility, and timesharing for Ms. 

 2 Prior to the hearing on Mr. Joseph’s supplemental petition 

to modify, Ms. Thomas filed a motion for paternity testing. The 

motion was never addressed by the trial court. 
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Thomas which had previously been established in the final 

judgment of dissolution of marriage. The court did not find or set 

out in its amended order any determination that it was in the 

child’s best interests to modify the parental responsibility and 

timesharing provisions in this manner six years after entry of the 

final judgment.3 See § 61.13(3), Fla. Stat. (2018). 

Ms. Thomas filed a timely motion for rehearing on grounds 

that the court had failed to acknowledge her court-ordered shared 

parental responsibility and majority parenting time with both 

children, as provided in the final judgment of dissolution. She also 

asserted that the court failed to apply the presumption of 

legitimacy for children born during a marriage. Finally, she 

argued that the trial court failed to determine and make findings 

that modification was in the best interests of Z.J. See § 61.13(2)(c),

Fla. Stat. Rehearing was denied and this appeal followed.

Analysis

Ms. Thomas claims that the trial court failed to recognize her 

parental status under the final judgment of dissolution and 

modified the terms of the final judgment without a determination 

that the modification is in the best interests of the child. She also 

argues that she was deprived of equal protection of law when the 

court, on modification, did not apply the presumption that would 

apply if Z.J. had been her biological child born during the 

marriage. See Department of Health & Rehab. Services v. Privette, 

617 So. 2d 305 (Fla. 1993) (holding if a child is born during a 

marriage, the law presumes that the husband of the wife and 

mother is the child’s father). Because we are compelled to reverse 

on the first issue, we need not address the constitutional issue.4 

 3 In fact, the amended order expressed concern that Z.J. and 

I.J. would not reside together and stated that the children 

remaining together would be in their best interest. 

4 We do note that “paternity and legitimacy are related, but 

nevertheless separate and distinct concepts.” Daniel v. Daniel, 695 

So. 2d 1253, 1254 (Fla. 1997). 
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“Generally, the failure to provide a transcript or a proper 

substitute precludes consideration of the merits of a challenge to a 

circuit court’s decision to modify” parenting responsibilities. 

Kilgore v. Kilgore, 729 So. 2d 402, 405 (Fla. 1st DCA 1998). 

“However, even in the absence of a transcript, an appellate court 

can reverse in those instances when the trial court makes an error 

of law on the face of the judgment.” Smith v. Wallace, 249 So. 3d 

670, 671 (Fla. 2d DCA 2017). 

The face of the amended order on the supplemental petition 

to modify does state the court’s finding that “an unforeseen 

substantial change in circumstances has been shown,” and the 

absence of a transcript precludes appellate review of this finding 

of fact. However, the amended order contains no mention of Z.J.’s 

welfare, best interests, and circumstances of the family. No 

reference to section 61.13 or the statutory factors listed in section 

61.13(3)(a) – (t) appears in the order. Ms. Thomas’ motion for 

rehearing asserted that the final judgment of dissolution was 

never appealed or otherwise set aside, that it established her 

“rights as a parent,” that it established her majority timesharing, 

and that the court had failed to analyze whether modification 

served the best interests of Z.J. Accordingly, the issue on appeal 

was preserved. See Owens v. Owens, 973 So. 2d 1169 (Fla. 1st DCA 

2007) (affirming where appellate challenge to adequacy of trial 

court’s findings in final judgment not preserved by motion for 

rehearing below). 

The trial court’s findings in its amended order — that no 

person other than Mr. Joseph had any “legal/court-ordered” rights 

regarding Z.J. and that the final judgment of dissolution “clearly 

shows that [Ms. Thomas] is not the parent” of Z.J. — are in direct 

conflict with the terms of the final judgment. The final judgment 

established that Mr. Joseph and Ms. Thomas “shall have shared 

parental responsibility for the minor children” and Ms. Thomas 

had “majority timesharing with the children.” 

By using these terms in the final judgment, Ms. Thomas was 

established as a parent for the purpose of the final judgment. See

§ 61.046(17), Fla. Stat. (2012) (defining “shared parental 

responsibility” to mean “a court-ordered relationship in which both 

parents retain full parental rights and responsibilities with 
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respect to their child and in which both parents confer with each 

other so that major decisions affecting the welfare of the child will 

be determined jointly”); § 61.046(17) (defining “time-sharing 

schedule” as the time “that a minor child will spend with each 

parent”). There are various ways non-parents can have “custody”

of a child. See, e.g., § 39.402, Fla. Stat. (2019) (allowing a child 

believed to be dependent to be sheltered in the custody of a nonparent); § 751.05, Fla. Stat. (2019) (allowing a non-parent to be 

awarded temporary custody of child). But under its statutory 

definition, only a parent can have “shared parental responsibility”

or “time sharing” as the final judgment granted Ms. Thomas with 

Z.J.5 

It may well have been error for the final judgment, in 

effectuating the agreement of the parties, to deem Ms. Thomas a 

parent of Z.J. But the final judgment was never appealed and 

there is no indication in the record that any party ever challenged 

its validity until Mr. Joseph’s petition for modification was filed 

five and a half years later. As stated in Wade v. Hirschman, 903 

So. 2d 928, 932-33 (Fla. 2005), “After the trial court enters the 

original final judgment decree, it is res judicata of the facts and 

circumstances at the time the judgment became final.” Even a 

potentially erroneous judgment is entitled to res judicata effect. 

See Fahey v. Fahey, 213 So. 3d 999 (Fla. 1st DCA 2016). 

Ms. Thomas correctly relies on the final judgment of 

dissolution as the status quo for these parties’ parental 

responsibilities and timesharing with Z.J. until properly modified. 

Because it is res judicata of the rights and obligations of the parties 

as of the time it became final, the final judgment is equally 

effective to establish Mr. Joseph’s status as Z.J.’s father and Ms. 

Thomas’ parental status with shared parental responsibility and 

majority timesharing. Any modification of the parental 

responsibilities and time-sharing schedule in the judgment of 

dissolution must comply with the requirements of section 61.13(3), 

Florida Statutes (2018). 

 5 As between parents, consideration of “custody” was 

eliminated from Florida statutes in 2008. See Ch. 2008-61, Laws 

of Florida. 
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Because the order on appeal disregarded the res judicata 

effect of the final judgment and modified the parental 

responsibilities and parenting plan/timesharing established in the 

final judgment without any findings on the factors set out in 

section 61.13(3)(a) – (t), the order must be reversed and remanded 

for further proceedings. See D.M.J. v. A.J.T., 190 So. 3d 1129 (Fla. 

2d DCA 2016); Holland v. Holland, 140 So. 3d 1155 (Fla. 1st DCA 

2014). On remand, we note the “discretion afforded to trial courts 

in modification is narrower than in initial time-sharing 

determinations.” Ness v. Martinez, 249 So. 3d 754, 757 (Fla. 1st 

DCA 2018). 

REVERSED and REMANDED.

ROBERTS and WINOKUR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jeffrey A. Conner of Three Rivers Legal Services, Inc., Lake City,

for Appellant.

R. Pierce Kelley, Jr., Fort White, for Appellee.