Cummings v. Cummings

706 So. 2d 81, 1998 Fla. App. LEXIS 1360, 1998 WL 64066
CourtDistrict Court of Appeal of Florida
DecidedFebruary 18, 1998
DocketNo. 97-2217
StatusPublished
Cited by1 cases

This text of 706 So. 2d 81 (Cummings v. Cummings) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. Cummings, 706 So. 2d 81, 1998 Fla. App. LEXIS 1360, 1998 WL 64066 (Fla. Ct. App. 1998).

Opinion

PER CURIAM.

This is an appeal by the mother from a post-judgment order, denying her one paragraph motion to clarify the authority of two psychologists “to make determinations concerning issues of visitation.” Because the trial court’s action was reasonable, given the hereinafter described circumstances, we affirm. Nevertheless, we believe it necessary to remand because the best interests of the children seem to be in limbo.

During the dissolution of the parties’ marriage, they had to come to rely upon the judgment of two psychologists. The order now being appealed recites the history:

On March 18, 1996 the parties agreed in Court that Drs. Steven Alexander and Sheila King:
will reach consensus of those [visitation] issues with the view that what is going to be accomplished is normalized visitation with the Husband, which is to say they’re going to work toward unsupervised visitation.
On May 15, 1996 this Court entered its Order adopting that agreement as to visitation and that Order stated specifically: 3. The parties have agreed that this Court orders that Drs. Steven R. Alexander and Sheila R. King shall jointly determine all issues concerning visitation with the parties’ children (including primary residential custody), specifically including the scheduling of visitation, the supervision of visitation and any geographical restrictions. The parties shall be bound by those mutually agreed upon determinations made by Drs. Alexander and King regarding the scheduling of visitation, the supervision of visitation and the geographical restrictions. Both parties shall cooperate with Drs. Alexander and King and make themselves and their children available to them when the doctors so request.
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4. The aforementioned doctors shall provide written reports to the parties and this Court with respect to their recommendations concerning the Husband’s visitation and geographical restrictions with the children. When the aforementioned doctors have made their final determination, thereby concluding their work in this matter, they shall issue a final report. This report shall be delivered to the Court so the Court may enter a formal Order. Until such time as the aforementioned doctors issue a final report, the parties will abide by the terms of preliminary reports issued for purposes of visitation and geographic restrictions.
On May 23, 1996, this Court’s Final Judgment of Dissolution of Marriage was entered and contained in part the following language:
6. The parties appeared before the Court on March 18, 1996 and announced that they had reached an agreement with respect to the issues of primary residential care, shared parental responsibility, and visitation regarding their three minor children. This agreement was read into the record. The Wife shall have primary residential custody of the children, and the Husband shall have visitation with the children as agreed and set forth in the separate Order on the agreement [Order of May 15,196], which the Court has recently entered and which the parties shall comply with in all respects.

Subsequently, the mother filed a sparse pleading in which there was nothing said as to the best interests of the children. Little time was reserved -by counsel for the trial court to hear her motion. At the brief hearing, both parties’ lawyers were finally agree[83]*83able to the trial court’s introduction of the psychologists’ post-judgment written reports only “on evidence of the recommendations that had been made” with respect to visitation. Their depositions were introduced by the father without objection by the mother.

The only changes in the recommended visitation with the father from the ultra specific, very lengthy determinations of visitation in 1996, were from Wednesday after school to Thursday overnight for the father, from supervised to unsupervised and from geographically restricted to unrestricted.

The report attached to the appealed order says:

Despite the difficulties faced, the visitation has been normalized and it has been determined that there is no need for supervision or monitoring during the father’s visitation and no need to maintain the geographic restriction on either parent. While each parent presents a contrasting view of the children’s reactions to the other parent and the source of the almost daily problems that exist between the adults, it is clear that there is no reason to have any restrictions on the children’s access to their father. It is recommended that the father’s visitation be every other weekend beginning at the end of school on Friday, lasting until the beginning of school on Monday. The father shall provide transportation to and from school on his weekend visitations. Weekday visitation with the father should be every Thursday from the end of school until the beginning of school on Friday, with the father providing the transportation.
Unfortunately, the children are not attending their counseling sessions with Dr. King because Ms. Cummings initially would not allow it, and now states through her attorney she cannot afford her portion of the fee. However, the mother has recruited a psychiatrist unfamiliar with the long history of this case who nonetheless is attempting to provide the therapy services and decisions specifically placed upon us in the Order. As a result, Dr. King and I will take no farther action pending further instruction of the Court. In addition to making our report to the Court, we are requesting clarification to the parents as to our present responsibilities.

The trial court order says:

Attached hereto is a copy of Dr. Steven Alexanders [sic] report dated April 4,1997. It is thereupon
ORDERED AND ADJUDGED that Husband’s visitation shall be every other weekend- commencing May BO, 1997 beginning at the end of school on Friday, lasting until the beginning of school the following Monday. It shall be the Former Husband’s responsibility to provide transportation to and from school on those weekend visitations. Former Husband’s weekday visitation shall be every Thursday, commencing May 29, 1997 from the end of school until the beginning of school on the following day, with the Former Husband providing transportation those days as well.

At no time has the mother alleged here that the trial court’s order is not in the best interests of the children. Instead, she now relies upon this court’s decision in Lane v. Lane, 599 So.2d 218 (Fla. 4th DCA 1992), arguing it compels reversal as the trial court, in effect, delegated its duty to the experts, without hearing testimonial evidence from them or anyone else.

Lane was an action to domesticate a foreign judgment of dissolution. There, the trial court severely limited the father’s visitation and completely disregarded the agreement of the parties and the experts’ opinions. This court reversed, saying an evidentiary hearing was necessary. Here, the mother led the trial court to believe it could consider the reports as recommendations, without its being asked to hear testimonial evidence.

The mother attempted to set the table at the trial level by her one paragraph motion and notice of a non-evidentiary hearing.

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Related

Cummings v. Cummings
37 So. 3d 287 (District Court of Appeal of Florida, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
706 So. 2d 81, 1998 Fla. App. LEXIS 1360, 1998 WL 64066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-cummings-fladistctapp-1998.