Opinion
No. 1D18-4790
11-27-2019
Richard BUSTAMANTE, Former Husband, Appellant, v. Meghan O'BRIEN, Former Wife, Appellee.
Adam S. Vorhis, Asheville, North Carolina, for Appellant. Lauren A. McCord of Scruggs, Carmichael & Wershow, P.A., Gainesville, for Appellee.
Adam S. Vorhis, Asheville, North Carolina, for Appellant.
Lauren A. McCord of Scruggs, Carmichael & Wershow, P.A., Gainesville, for Appellee.
Ray, C.J.
In this post-dissolution proceeding, the former husband appeals an order on the former wife's motion for clarification that amended the final judgment to require the former husband to arrange air travel for the minor children at least sixty days before his time-sharing, and that made the failure to do so a waiver of his time-sharing rights. Because the order improperly modified the final judgment without proper pleading or proof of a substantial change in circumstances, we reverse.
I.
In 2017, the trial court entered a final judgment of dissolution that adopted the parties' time-sharing schedule for their three minor children. At the time, the former husband was stationed in Colorado with the United States Army, and the former wife resided in Fort Lauderdale. The final judgment included the following transportation plan for the children:
(a) Transportation. Due to the distance between the parties, airfare is required to exercise timesharing. The parties will confer regarding airplane tickets and will mutually agree prior to booking said tickets. The parties shall prorate the cost of air travel for the children (70/30) in relation to their income with the Husband being responsible for 70% and the Wife responsible for 30%. Should the Father move closer, so that air travel is not necessary, then the party beginning their timesharing will provide transportation for the children.
Within a few months, it became apparent to the former wife that the transportation plan was not working out. She moved for clarification from the court noting that the parties have struggled or not been able to agree on flights for the children's trips to see the former husband, and that she could not afford the increased cost when the tickets were purchased too close to the date of departure. She asked the court to clarify the final judgment "to require that all flights to and from [her] home originate from Ft. Lauderdale International Airport and that the tickets be booked at least (60) days in advance."
A hearing took place on the former wife's motion for clarification. At the start of the hearing, the former husband argued that the former wife was actually seeking a modification of the final judgment, not a clarification. The former wife responded that she was not asking for any new rights, but merely clarification on a time frame for the parties to agree on air travel arrangements. The court heard testimony from both parties on the difficulties they faced agreeing on proper transportation for the children to see the former husband. The former wife noted that the former husband had cancelled at the last minute in the past, which caused her to scramble for child care. The former husband testified that as a Major and pilot in the United States Army he could not schedule travel sixty days in advance, as he did not know where he would be that far in the future.
After considering the testimony and argument from the parties, the court found that the former wife's request to require use of the Ft. Lauderdale International Airport "would constitute a modification of the final judgment and therefore that request must be brought by supplemental petition." But the court determined that her request that flights be booked sixty days in advance fell "under the umbrella of clarification." The court explained:
Although the Former Husband's work schedule is largely controlled by the military by the restrictions that they place on the Former Husband, that is also not within the control of the Court. However, it is not reasonable for the Former Wife to wait until the day before time-sharing is to commence with the Former Husband to receive the details of the flights and other details of the time-sharing. There needs to be reasonable, adequate notice to the Former Wife in order to plan for daycare for the children or some other alternative disposition in the event that the Former Husband is unable to exercise his time-sharing. Sixty days is a reasonable period of time.
The court granted the former wife's motion for clarification and amended the transportation plan as follows:
a) It is incumbent upon the Former Husband to have the transportation details ironed out with the Former Wife no
less than 60 days before his time-sharing is to begin for each one of his time-sharing blocks (alternating Thanksgivings, alternating Christmases, his yearly Spring Break and his yearly six (6) weeks in the summer). The airfare must be booked, and copies given to the Former Wife so that she can plan accordingly for timesharing, and getting the children to the airport.
b) If the Former Husband is unable to provide that itinerary and those firm, fixed travel plans to the Former Wife prior to 60 days of the commencement for his timesharing, the Former Wife may consider that time-sharing waived for that particular segment and she will not be obligated to send the children to him.
II.
The former husband argues that the trial court improperly modified the transportation plan in the final judgment and granted enforcement relief not requested by the former wife. It did so, he contends, by imposing additional duties and requirements on him, including that he book flights for his children at least sixty days before his time-sharing and forfeit his time with them should he fail to meet this deadline.
Where terms of a final judgment are ambiguous as applied to facts developing after the judgment, "[a] court may clarify what is implicit in [the] judgment, and enforce the judgment." Pomeranz v. Pomeranz , 961 So. 2d 1068, 1071 (Fla. 4th DCA 2007) (quoting Encarnacion v. Encarnacion , 877 So. 2d 960, 963 (Fla. 5th DCA 2004) ). A clarification seeks to make a judgment clearer and more precise, as opposed to a modification, which seeks to change the status quo and alter the rights and obligations of the parties. Roque v. Paskow , 812 So. 2d 500, 503 (Fla. 4th DCA 2002) (citing Fussell v. Fussell , 778 So. 2d 517, 518 (Fla. 1st DCA 2001), and Dickinson v. Dickinson , 746 So. 2d 1253, 1254 (Fla. 5th DCA 1999) ). To obtain a modification, a party must show a substantial change in circumstances necessitating the modification together with a determination that the best interests of the child will be served by the change. Pomeranz , 961 So. 2d at 1070 ; Roque , 812 So. 2d at 503 ; see also § 61.13(2)(c), Fla Stat. (2018) (stating that "modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances").
Whether changes to a final judgment are a modification or a clarification presents a question of law reviewed de novo. See Shinitzky v. Shinitzky , 82 So. 3d 1010, 1013 (Fla. 4th DCA 2011) ("This Court reviews the construction of a final judgment de novo.").
III.
Here, the former wife concedes that the portion of the order in subparagraph b, which provides that the former husband must forfeit his time-sharing if he fails to make air travel arrangements sixty days in advance, is an improper modification of the final judgment and should be reversed. We accept this proper concession of error.
Whether the other provisions of the order related to the sixty-day notice requirement constitute a clarification or a modification is a much closer question. The former wife argues that an order that more clearly defines provisions relating to specific time frames is a clarification of the final judgment and not a modification. For example, in Roque , the final judgment provided for the division of visitation during holidays but did not specify the times the children needed to be dropped off or picked up on those days. 812 So. 2d at 502. The trial court construed the term "day" in the time-sharing plan to be 9:00 a.m. to 6:00 p.m. The Fourth District Court of Appeal affirmed that part of the trial court's order as "merely clarifying the terms of the final judgment so that the judgment could be properly enforced as written." Id. at 503 (citing Fussell , 778 So. 2d at 518-19 ).
In Fussell , the final judgment stated, "[w]hen the child is with one parent, the other parent shall have open and reasonable telephonic communication with the child." 778 So. 2d at 518. The trial court interpreted this provision to allow the former husband to call the child on Sundays between 7:00 p.m. and 8:00 p.m. and once during the week on a day and time agreed on by the parties. The court also placed no restrictions on the child calling the former husband. Id. This Court affirmed, holding that "the trial court did not modify, but rather interpreted and clarified the final judgment's telephonic visitation provision." Id.
The former wife also argues that an order that more precisely enumerates the method or procedure for compliance with a final judgment merely clarifies the judgment and does not modify it. For support, she cites Gerber v. Gerber , 153 So. 3d 304 (Fla. 2d DCA 2014). The provision of the final judgment at issue in that case required that each party share in reasonable and necessary medical expenses for the children and that each party "pay directly or reimburse the other their portion of said expenses or object to same ... within fifteen (15) days of the receipt of such notice." 153 So. 3d at 306. The former wife filed a motion for contempt alleging that the former husband had not paid his share of medical expenses as required by the judgment. Id. The former husband contended that the expenses were unreasonable. Id. In interpreting the final judgment, the trial court construed the relevant provisions to require that if the former husband had an objection to any of the medical expenses, he still had to pay for the treatment within the designated time and then seek an order requiring the former wife to reimburse him, provided he could show that the medical expenditure was unreasonable or unnecessary. Id.
On appeal, the Second District Court of Appeal rejected the former husband's argument that the trial court effectively modified the final judgment. Instead, it held that clarification was appropriate because the underlying provisions "did not specifically enumerate the procedure for objections." Id. at 306. Citing Roque , the court determined that the former wife did not receive a new benefit from the trial court's interpretation of the final judgment but merely a "more precisely enumerated method" of recovering medical expenditures. Id.
Returning to the case before us, we conclude that unlike the clarification of pick-up times in Roque and "reasonable" telephonic communication in Fussell , the sixty-day notice provision and its associated obligations constitute more than a mere specification of a time frame. These provisions are also more than just a method or procedure for compliance as discussed in Gerber . The original transportation plan did not require the former husband (or the former wife) to do anything besides "confer regarding airplane tickets" and "mutually agree prior to booking said tickets." The amended plan essentially shifts the burden to the former husband to negotiate and book the flight arrangements—and do so at least sixty days before travel. This is an impermissible modification of the final judgment because it confers a new benefit on the former wife, while imposing a new and material burden on the former husband due to his obligations in the United States Army. See Pomeranz , 961 So. 2d at 1070 (holding that order awarding former wife ultimate decision-making authority over children's welfare improperly modified final judgment that had granted parties shared parental responsibility).
IV.
While we are sensitive to challenges faced by the trial judge in trying to resolve intractable conflict between the parties, without the appropriate pleading and requisite proof inherent in a modification proceeding, we must reverse.
REVERSED and REMANDED for proceedings consistent with this opinion.
BILBREY and JAY, JJ., concur.