Moore v. Trevino

612 So. 2d 604, 1992 WL 385390
CourtDistrict Court of Appeal of Florida
DecidedDecember 30, 1992
Docket90-3050
StatusPublished
Cited by12 cases

This text of 612 So. 2d 604 (Moore v. Trevino) 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
Moore v. Trevino, 612 So. 2d 604, 1992 WL 385390 (Fla. Ct. App. 1992).

Opinion

612 So.2d 604 (1992)

Melissa R. MOORE, Appellant,
v.
Cezar TREVINO, Appellee.

No. 90-3050.

District Court of Appeal of Florida, Fourth District.

December 30, 1992.
Rehearing Denied February 26, 1993.

*605 Kathryn M. Beamer of Kathryn M. Beamer, P.A., West Palm Beach, for appellant.

*606 Stephen R. Koons and Maxine A. Braten of Jeffrey A. Miller, P.A., Palm Beach Gardens, for appellee.

POLEN, Judge.

Melissa Moore seeks review of an order entered pursuant to her 1990 petition for modification of a 1986 judgment of paternity. We reverse.

Appellant challenges the trial court's jurisdiction to award shared parental responsibility to the father in the modification order, certain findings of fact in three paragraphs of the order, the award of unsupervised grandparental visitation, an award of visitation to the child's aunts as well as its exclusion of evidence regarding a paternal aunt and statements the child made to the mother regarding the grandfather. She also appeals the trial court's denial of her prayer for attorney's fees.

Appellant and the child's biological father, appellee Cezar Trevino, were never married. Appellant's relationship with appellee ceased before the child's birth and did not resume until the child was three years old. Neither appellee nor his parents asked to see the child for the first three years of her life. However, appellant testified that she felt it was important for the child to know her father. In the 1986 final judgment, the court declared appellee, Cezar Trevino, to be the father of the child, required him to pay child support, and awarded the father and his parents "reasonable visitation at reasonable times upon reasonable notice." At that time, appellant agreed to give appellee visitation privileges and also agreed to permit his parents to have access to the child.

In 1990, however, appellant sought to modify the 1986 final judgment. She alleged in her petition that since the entry of final judgment, the father had trafficked in drugs and had pled guilty to a charge of trafficking in cocaine in an amount over 28 grams. This resulted in his incarceration in federal prison. Appellant maintained a relationship with appellee while he was in prison; appellee was given furloughs from time to time. According to appellant, however, during these furloughs, appellee showed little interest in the child; he made it known that he wanted to spend time alone with appellant and required her to procure a babysitter for the child. The petition also alleged that the father both physically and mentally abused appellant in the child's presence. It further stated that the mother became aware, since entry of the 1986 judgment, that the paternal grandfather physically and emotionally abused his wife (the child's grandmother), and that he drank alcohol excessively. The petition also asserted that it was in the best interest of the child if the visitation with the grandparents were supervised. The father filed a counterpetition praying for modification of the final judgment to include more specific and defined structured visitation for the father and his parents without supervision or contact with appellant. It alleged that appellant had unilaterally withheld contact with the father and grandparents contrary to the final judgment of paternity and that appellant was hostile toward the father and his parents. Appellee did not include a prayer for shared parental responsibility.

Shared parental responsibility is awardable to a natural father in cases where the child is born out of wedlock. See Kent v. Burdick, 591 So.2d 994 (Fla. 1st DCA 1991). However, the trial court's award of shared parental responsibility at bar constituted reversible error, because appellee did not pray for custody in his counterpetition. See Rhodes v. Wall, 514 So.2d 437 (Fla. 4th DCA 1987) (reversible error occurred where petition for paternity did not ask for custody, but court awarded shared parental responsibility). When an award of relief is not sought by the pleadings, it is error to grant such relief. Freeman v. Freeman, 447 So.2d 963 (Fla. 1st DCA 1984). In Dodge v. Dodge, 578 So.2d 522 (Fla. 4th DCA 1991), we held that "[o]rdinarily, a trial court that is properly considering the custody of a child is also empowered to consider visitation as a necessary component of any custody arrangement." Id. In other words, the broad necessarily may include the less broad. However, in the instant case we have the *607 reverse situation, and we hold that to permit such relief would offend a party's right to notice and opportunity to prepare a proper defense. Accordingly, we reverse the trial court's award of shared parental responsibility to appellee.

Regarding the trial court's findings of fact in paragraphs 1, 2 and 5 of the order, appellant argues that the trial court's findings of fact are not supported by the record. We agree. Although the trial court found that appellant and appellee lived together at his parents' home, the record shows that appellant and appellee did not have a continuing relationship, that appellant lived alone from the child's birth until the summer of 1989. At that time, when appellee went to prison and could not contribute to the child's support, appellant moved into appellee's parents' home at his suggestion. The trial court also found that appellant's relationship with appellee suffered some "ups and downs." As we previously stated, however, the evidence adduced at the hearing, which included appellee's own admission, showed appellee mentally and physically abused appellant. Thus, there is competent evidence of abuse in the present record, yet it is unreflected in the trial court's findings. We agree with appellant that this factor was not given due consideration as required by section 61.13(2), Florida Statutes, which provides:

The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. The court shall consider evidence of spouse abuse as evidence of detriment to the child. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. If the court finds that spouse abuse has occurred between the parties, it may award sole parental responsibility to the abused spouse and make such arrangements for visitation as will best protect the child and abused spouse from further harm.

(Emphasis supplied.)

We also agree with appellant that the trial court's findings in paragraph two are not consistent with the record. In that paragraph, the court reiterated appellant's claim that there was a significant difference between appellant's and the grandparents' parenting methods. The grandfather did not dispute that his parenting methods did not follow appellant's and he corroborated his refusal to observe appellant's requests to require a set bedtime for the child, that the child have vegetables at dinner, and his refusal to utilize a child restraint seat when he drove with the child. The order also states that the grandfather "suffered from periods of alcohol abuse." The record shows that the grandfather often got drunk and became violent.[1] The grandfather admitted in court that at the time of the hearing he still drank and that he has a "short fuse" and becomes loud and violent when he drinks. Appellee ultimately admitted this to the court. Appellee's sister conceded that her father still abused alcohol at the time of the hearing.

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Bluebook (online)
612 So. 2d 604, 1992 WL 385390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-trevino-fladistctapp-1992.