GREGORY ROBERTS v. ANYZEILA DIAZ

• Court: District Court of Appeal of Florida
• Decided: July 20, 2022
• Docket: 21-1912
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 20, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1912 Lower Tribunal No. 18-10858 ________________

Gregory Roberts, Appellant,

vs.

Anyzeila Diaz, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Christina Marie DiRaimondo, Judge.

Law Office of Kimberly H. Schultz, P.A., and Kimberly H. Schultz, for appellant.

Bruce A. Arrick, P.A., and Bruce A. Arrick; Jay M. Levy P.A., and Jay M. Levy, for appellee.

Before LOGUE, LINDSEY, and MILLER, JJ.

LINDSEY, J. Appellant Gregory Roberts (“Former Husband”) appeals a final order

denying his proposed timesharing schedule and modifying the existing

timesharing schedule by adopting Appellee Anyzeila Diaz’s (“Former Wife”)

proposed timesharing schedule. We affirm because we cannot review the

factual issues on appeal without a transcript of the hearings below.

I. BACKGROUND

In June 2018, the trial court entered a Final Judgment of Dissolution of

Marriage based on a Marital Settlement Agreement, which included a

parenting plan and timesharing schedule. In February 2019, the Former

Husband filed an Emergency Motion for Temporary Change in Parenting

Plan due to a change in his work schedule. Following a hearing, the trial

court made temporary changes to the timesharing schedule.

In February 2020, the Former Husband again moved to temporarily

modify the timesharing schedule due to conflicts with his work schedule, and

he submitted a proposed timesharing schedule. In response, the Former

Wife also submitted a proposed timesharing schedule and asserted that the

Former Husband’s proposed timesharing schedule did not comport with the

conditions of the parties’ parenting plan.

On April 8 and April 10, 2021, the trial court conducted hearings on the

Former Husband’s motion. There are no transcripts in the record from either

2 of these hearing. On April 14, the trial court entered an order finding that the

Former Husband’s proposed timesharing schedule did not meet the

timesharing requirements set forth in the parties’ parenting plan. The court

also found that the Former Mother’s “proposed timesharing schedule offered

to this Court at hearing meets all the timesharing conditions . . . .”

Accordingly, the trial court ratified and approved the Former Wife’s proposed

timesharing schedule. The Former Husband appealed.

II. STANDARD OF REVIEW

This Court reviews orders modifying timesharing for an abuse of

discretion. Sordo v. Camblin, 130 So. 3d 743, 744 (Fla. 3d DCA 2014);

Winters v. Brown, 51 So. 3d 656, 658 (Fla. 4th DCA 2011) (“An appellate

court will not disturb the trial court’s custody decision unless there is no

substantial, competent evidence to support the decision.”). “The decision of

the trial court comes to this court clothed in a presumption of correctness,

and the burden is on the appellant to demonstrate reversible error.” Corridon

v. Corridon, 317 So. 3d 1198, 1201 (Fla. 3d DCA 2021) (quoting Chirino v.

Chirino, 710 So. 2d 696, 697 (Fla. 2d DCA 1998)).

III. ANALYSIS

The Former Husband argues that the trial court had no jurisdiction to

ratify the Former Mother’s proposed timesharing schedule because the

3 Former Mother did not file a petition to modify timesharing. We disagree. It

was the Former Husband who initiated the proceeding for modification of the

timesharing schedule. The trial court was not bound to adopt the relief

requested within Former Husband’s motion to modify the parties’

timesharing schedule.

Generally, both parties must be given notice and an opportunity to be

heard prior to any modification. Wolfson v. Wolfson, 173 So. 3d 1136, 1138

(Fla. 3d DCA 2015), opinion clarified, 173 So. 3d 1146 (Fla. 3d DCA 2015).

Here, the Former Husband filed a motion to modify the timesharing schedule

and included a proposed schedule. The Former Wife responded with her

own proposed timesharing schedule. The trial court then conducted

hearings on two separate days. Although we do not have the benefit of

transcripts, the trial court’s order reveals that the Former Husband, Former

Wife, and the Court Appointed Parenting Coordinator testified at the hearing.

Therefore, the parties had adequate notice and an opportunity to be heard

prior to modification.

The Former Husband also argues that the Former Wife did not

demonstrate a substantial change in circumstances, which is required to

modify a timesharing schedule. See § 61.13(3), Fla. Stat. (2021). However,

because there are no transcripts of the hearings below, we are unable to

4 review this factual issue. See Applegate v. Barnett Bank of Tallahassee, 377

So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the

appellate court can not properly resolve the underlying factual issues so as

to conclude that the trial court’s judgment is not supported by the evidence .

. . .”); see also Pierre v. Bueven, 276 So. 3d 917, 918 (Fla. 3d DCA 2019)

(“Because there is no transcript of the final hearing, this Court is unable to

determine whether there was competent, substantial evidence presented

below that permitted the lower court to properly evaluate the section

61.13(3)(a)-(t) factors when it made its parental responsibility and time-

sharing determinations.”).

IV. CONCLUSION

Without a transcript of the trial court’s hearings, we cannot properly

resolve the factual issues on appeal. As such, we are compelled to affirm.

Affirmed.