Opinion
Nos. 3D18-2016 3D18-1605 3D18-1603
12-18-2019
Corbin KITCHEN, Appellant, v. Melissa CERULLO, Appellee.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant. The Manz Law Firm, and Michelle Klinger Smith, for appellee.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.
The Manz Law Firm, and Michelle Klinger Smith, for appellee.
Before EMAS, C.J., and SALTER and LOBREE, JJ.
EMAS, C.J.
These three consolidated appeals arise out of orders entered in a contentious post-judgment family case. For our purposes, the orders center upon the trial court's action granting temporary custody of the parties' minor child to the maternal grandmother. For the reasons that follow, we hold that the trial court exceeded the scope of our relinquishment of jurisdiction and directly addressed the substance of one of the orders on appeal. We also hold that the trial court erred in awarding temporary custody to the maternal grandmother and in granting the mother's request for a child pick-up order.
BACKGROUND
The factual and procedural background is lengthy and complicated, and is set out briefly and only as necessary to our resolution of these appeals.
In 2017, the mother, Melissa Cerullo, was arrested on drug-related charges and incarcerated. The father, Corbin Kitchen, was subsequently awarded custody of their three-year-old child. Months after being awarded custody, Kitchen petitioned to relocate with the minor child to Tennessee, and the trial court entered a final judgment granting relocation and reserving jurisdiction "to address all issues of time-sharing and parental responsibility, as well as to enforce or modify the provisions of this Judgment." Two months later, Kitchen was arrested on a domestic violence charge against his wife (the child's stepmother) and—based on that arrest—Cerullo filed motions challenging Kitchen's relocation with the child and requesting that the minor child be temporarily placed with the maternal grandmother. These motions resulted in two of the three orders that are the subject of these consolidated appeals.
The charges against Kitchen were later dropped and the investigation by the Department of Children and Families (DCF) closed.
In case numbers 3D18-1603 and 3D18-1605, Kitchen challenges two nonfinal orders pertaining to custody of the parties' minor child: a July 5, 2018 Order prohibiting Kitchen from relocating with the minor child to Tennessee, and a July 11, 2018 Order, removing the minor child from Kitchen's custody and temporarily placing the child with the maternal grandmother for two months (July and August 2018).
We conclude that the issues raised in 3D18-1603 (challenging the July 5 Order) are "rendered moot by the passage of time" and we dismiss that appeal without further discussion. Llopis v. Llopis, 731 So. 2d 719, 721 (Fla. 3d DCA 1999) ; Williams v. City of Sarasota, 780 So. 2d 182 (Fla. 2d DCA 2001).
We consolidated these two appeals and, while they were pending, Kitchen filed a motion to relinquish jurisdiction to permit the trial to rule on a still-pending motion to vacate the two orders on appeal. We temporarily relinquished jurisdiction for the limited purpose of permitting the trial court to rule on the pending motion to vacate the July 5 and July 11 Orders.
Following our relinquishment, the trial court set a hearing on Kitchen's motion to vacate. However, the mother requested that, at the scheduled hearing, the trial court also consider the continued placement of the child with the maternal grandmother. The placement of the minor child with the maternal grandmother was the very subject of the July 11 Order pending on appeal. Kitchen objected, arguing that this Court's relinquishment only authorized the trial court to rule on the motion to vacate, and that the trial court could not expand the scope of the relinquishment order to include an evidentiary hearing on the child's continued placement with the maternal grandmother.
The trial court disagreed and conducted an evidentiary hearing. Following the hearing, the trial court on August 31, 2018, entered its order denying Kitchen's motion to vacate and ordering the child's continued placement with the maternal grandmother. Kitchen appealed that August 31 Order in case number 3D18-2016.
DISCUSSION
Relinquishment and the Subsequent August 31 Order (3D18-2016)
The trial court exceeded its authority by considering matters beyond the limited scope of our relinquishment order and by directly addressing the substance of the very orders on appeal. See Fla. R. P. App. 9.130(f) (providing: "In the absence of a stay, during the pendency of a review of a nonfinal order, the lower tribunal may proceed with all matters, including trial or final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court"); Hernandez v. Hernandez, 924 So. 2d 853 (Fla. 2d DCA 2006) (holding that the trial court exceeded its jurisdiction by recalculating child support upon the Second District's relinquishment of jurisdiction to calculate temporary child support); Soles v. Soles, 536 So. 2d 367, 368 (Fla. 1st DCA 1988) (holding that the trial court's order, entered after the notice of appeal was filed, "exceeded the scope of the lower court's concurrent jurisdiction pursuant to Fla. R. App. P. 9.600 and 9.130(f) as it directly addressed the substance of the matter appealed"). See also Fla. R. App. 9.600(c) (enumerating the matters over which a lower tribunal retains jurisdiction while appellate review is pending).
The July 11 Order temporarily placed the minor child with the maternal grandmother over a period of two months (July through August 2018). Kitchen sought review of this nonfinal order in 3D18-1603, and the appeal from that order was pending when this Court relinquished jurisdiction to the trial court for the sole purpose of rendering an order on the pending motion to vacate the July 11 (and July 5) Orders. Nevertheless, on August 31, 2018 the trial court held an evidentiary hearing on the continued placement of the minor child with the maternal grandmother; made new, specific factual findings related to that issue; and ordered that the minor child remain with the maternal grandmother on a temporary (but open-ended) basis beyond the temporary (and imminently-expiring) period set forth in the July 11 Order on appeal.
To the extent it denied Kitchen's motion to vacate the July 5 and July 11 Orders, the trial court's August 31 Order was a valid exercise of the trial court's authority. However, the remainder of the August 31 Order is invalid and a nullity, and is therefore vacated in its entirety save for the first paragraph, which denied Kitchen's motion to vacate the July 5 and July 11 Orders.
Temporary Placement of the Minor Child with the Maternal Grandmother
The record reveals that Cerullo filed the petition seeking an order granting temporary custody of the minor child to the maternal grandmother. The maternal grandmother did not file her own petition. See § 751.02, Fla. Stat. (2018) (providing: "Any extended family member who has the signed, notarized consent of the child's legal parent" may "bring proceedings in the circuit court to determine the temporary or concurrent custody of a minor child"). Given our holding, we need not address further the failure to file a proper petition for temporary custody.
We also hold that the trial court erred in entering the July 11 Order, which granted the maternal grandmother temporary custody of the minor child and directed pickup of the minor child.
First, we hold that removing the minor child from Kitchen's custody was error where there was insufficient evidence to demonstrate that Kitchen was "unfit" under section 751.05(3), Florida Statutes (2018). More specifically, there was no evidence that the minor child was present during the alleged act of domestic violence, nor any evidence that the minor child suffered harm as a result of the alleged incident.
Section 751.05(3) "governs a temporary custody request by an extended family member over the objection of a natural parent and provides for the preference of a natural parent to retain custody unless the natural parent is proven to be unfit." Morris v. Morris, 255 So. 3d 908, 910 (Fla. 1st DCA 2018). If—as in this case—one of the minor child's parents objects to the petition for temporary custody
the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child's parent or parents are unfit to provide for the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.
§ 751.05(3)(b), Fla. Stat. (emphasis added). The question, then, is whether Kitchen was "unfit"—that is, whether he abused, abandoned or neglected the child as defined by chapter 39.
Section 39.01(2), Florida Statutes (2018), defines abuse as: "any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired." Courts have held that domestic violence "may constitute abuse if it occurs in the child's presence, the child saw or was aware of the violence occurring, and the violence resulted in physical or mental injury to the child." S.S. v. Dep't of Children & Families, 81 So. 3d 618, 622 (Fla. 1st DCA 2012). Compare In re K.B., 937 So. 2d 709, 710-11 (Fla. 2d DCA 2006) with In re E.B., 834 So. 2d 415, 416 (Fla. 2d DCA 2003) (finding that there was not competent substantial evidence to support the trial court's finding that the mother exposed the child to acts of domestic violence where: "the mother's roommate testified that she came home one day to find the mother icing her wrist because she said her boyfriend had slammed a door on it. The witness was not present for the incident, however, and did not testify that the child was either.")
By this legal standard, Cerullo was required to present evidence that the child was present or aware of the alleged domestic violence incident, and that such exposure resulted in injury or harm to the child. Because Cerullo failed to meet this evidentiary burden, the trial court erred in granting the maternal grandmother temporary custody. See Smith v. Crider, 932 So. 2d 393, 399 (Fla. 2d DCA 2006) (noting that "the burden remained on the father [as the moving party] to present evidence establishing the grounds for an emergency temporary change in custody. ... The burden should not have shifted to the mother ... to present evidence rebutting the allegations of the motion.")
The trial court also failed to find by "clear and convincing evidence" that the father was "unfit to provide for the care and control of the child" or that the child was abused, abandoned or neglected as defined under chapter 39. See § 751.05(3)(b), Fla. Stat. See also In re A.M.M., 63 So. 3d 910, 913 (Fla. 2d DCA 2011) (holding: "[T]he circuit court's order wholly failed to address the mother's fitness to parent the child. Specifically, the court did not find, by clear and convincing evidence or otherwise, that the mother had abused, abandoned, or neglected her child, as defined in chapter 39. As such, the order granting temporary custody of the child to the grandmother was facially erroneous.")
The Pickup Order
We further hold that the portion of the July 11 Order directing a pickup of the minor child was entered in error, as Kitchen was not provided adequate notice and a meaningful opportunity to be heard on the matter. See Glockson v. Manna, 711 So. 2d 1332, 1333 (Fla. 2d DCA 1998) (noting: "Care should be taken by trial courts utilizing chapter 751 when entering custody orders over the objection of biological parents, or simply without their consent, to observe the fundamental procedural safeguards accorded biological parents in dependency proceedings, including, most critically, notice and an opportunity to be heard.")
CONCLUSION
The trial court's August 31 Order requiring continued placement of the minor child with the maternal grandmother was impermissible and a nullity to the extent it exceeded the scope of our relinquishment order and directly addressed and adjudicated the substance of the order on appeal.
There was also insufficient evidence to support the trial court's July 11 Order awarding temporary custody to the maternal grandmother. Because the order was erroneous, and the maternal grandmother had no legal right to temporary custody of the child, the child shall be returned to the father, and the maternal grandmother—should she choose to do so—may file an appropriate petition for temporary custody pursuant to chapter 751. See Seilkop v. Barker, 148 So. 3d 865, 868-69 (Fla. 1st DCA 2014) (holding: "[B]ecause the trial court's order denying Ms. Seilkop's petition to terminate the Barkers' temporary custody is not supported by legally sufficient evidence, we reverse the order and remand for further proceedings consistent with this opinion.") In addition, the July 11 Order directing a pickup of the minor child was entered without adequate notice and without providing Kitchen a meaningful opportunity to be heard on the matter.
We therefore vacate, in part, the August 31 Order, reverse the July 11 Order, and dismiss the appeal of the July 5 Order. We recognize the challenging nature of this case, and the many practical difficulties it created for the trial court. There is little doubt the trial court attempted to arrive at temporary remedies it considered to be in the best interest of the minor child. We remand for the trial court to take the appropriate actions necessary to restore custody of the minor child to Kitchen, and for further proceedings consistent with this opinion. We are confident that, in doing so, the trial court will act expeditiously to adjudicate all outstanding and remaining issues, while keeping in mind the interests articulated in In re A.M.M., 63 So. 3d at 913-14 : "[W]e trust that on remand the circuit court will recognize the urgency of reuniting the [father] with [his] child until such time as it might conclude—based on proper pleading, proof, and statutory findings—that placing temporary custody of the child with the grandmother is warranted under the law."