Ryan v. Ryan

257 So. 3d 1168

• Court: District Court of Appeal of Florida
• Decided: October 31, 2018
• Docket: 18-1420 & 18-1457
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 31, 2018. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D18-1420 & 3D18-1457 Lower Tribunal No. 16-29168 ________________

Jade Nicole Ryan, Appellant/Petitioner,

vs.

Thomas Ryan, Appellee/Respondent.

An appeal from a non-final order from the Circuit Court for Miami-Dade County, George A. Sarduy, Judge.

On petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, George A. Sarduy, Judge.

Abramowitz and Associates and Evan L. Abramowitz, for appellant/petitioner.

Orshan, Spann & Fernandez-Mesa and Steven P. Spann and Robert D. Orshan, for appellee/ respondent.

Before SALTER, LOGUE and SCALES, JJ. SALTER, J.

The former wife, Jade Nicole Ryan (“Former Wife”), seeks review of a post-

judgment order in a dissolution of marriage case. The order suspended her

unsupervised timesharing with her minor child and ordered her to pay for

substance abuse evaluation and treatment. In Case No. 3D18-1420, Former Wife

appeals the modification of her timesharing rights with her child, a non-final order

with our limited jurisdiction as specified in Florida Rule of Appellate Procedure

9.130(a)(3)(C)(iii). In consolidated Case No. 3D18-1457, the Former Wife seeks a

writ of certiorari to quash another portion of the same order, in which she was

directed to submit herself to an alcohol and drug evaluation and a treatment

program, to be fitted with a SCRAM1 bracelet, and to pay for these measures at her

own expense.

We affirm the non-final order and deny the petition for certiorari.

Case No. 3D18-1420: Timesharing

The parties’ minor child is a four year-old girl. In addressing the Former

Husband’s third motion to restrict timesharing, the trial court properly considered

prior (and recent) agreed orders regarding the temporary suspension of

unsupervised timesharing, the Former Wife’s prior concessions of drug and

1 The acronym stands for “secure continuous remote alcohol monitor,” a wearable device capable of detecting and electronically reporting alcohol use by the wearer.

2 alcohol abuse, and the restoration of unsupervised timesharing during times of

compliance with conditions.

The trial court also heard new evidence (from a private investigator)

regarding empty champagne bottles and prescription drug containers collected

from the trash containers outside the Former Wife’s residence, where she

conducted her timesharing with the minor child. The guardian ad litem and the

private investigator testified, but did not provide specific information regarding the

best interests of the minor child. The guardian ad litem in fact recommended that

the Former Wife be allowed to exercise unsupervised timesharing with the child so

long as the Former Wife continues to wear the SCRAM bracelet.

The trial court’s limitations on the Former Wife’s visitation are reviewed for

an abuse of discretion. Sordo v. Camblin, 130 So. 3d 743, 744 (Fla. 3d DCA

2014). The court has discretion to restrict or deny visitation to protect the welfare

of the child. Hunter v. Hunter, 540 So. 2d 235, 238 (Fla. 3d DCA 1989).

In this case, there was little testimony regarding the best interests of the

child, but the earlier findings regarding alcohol abuse, drug abuse, and violations

of conditions in prior agreed orders were concerning to the trial court.2 The trial

2 As one example, the trial court referred to a 2017 determination that Former Wife “had purchased 7,800 canisters of nitrous oxide in a six (6) week period.” As another, Former Wife previously agreed to the entry of a requirement for supervised visitation after allowing the child to play in the residential swimming pool while the Former Wife was impaired.

3 court found that these circumstances were “placing the minor child at risk if left

alone with the Former Wife.” Prior orders allowed supervised visitation by the

Former Wife when her mother was present and so long as other conditions were

fulfilled. The Former Husband’s latest motion contended that several

conditions had been violated and that a more formal limitation on supervised

visitation was necessary (with a supervisor appointed by the court, rather than by

the Former Wife’s mother). The record contains competent substantial evidence

supporting the trial court’s decision to renew limitations on the Former Wife’s

exercise of timesharing until such time as her compliance with conditions and

substance abuse evaluations support a restoration of unsupervised timesharing.

The Former Wife also argues that the order under review should be reversed

because it does not specify the conditions that must now be met in order to lift the

limitations on visitation, relying on cases such as Hunter v. Hunter, 540 So. 2d 235

(Fla. 3d DCA 1989). In this case, however, the order expressly directs the parties

to schedule a case management conference within thirty days to address the

Former Wife’s compliance with the SCRAM bracelet, alcohol and drug testing,

and treatment program requirements imposed by the order. The trial court stated

that, at the conference, the court would “determine the Former Wife’s time-sharing

status with the minor child.” We find no error in this procedure, as it provides a

4 clear path toward reconsideration of the timesharing limitations if enumerated

conditions are met.3

We also find no error in those provisions of the order directing the Former

Wife to pay the expenses of her alcohol and drug evaluation, all expenses of the

SCRAM bracelet and monitoring, and the cost of in-patient or out-patient

treatment as recommended by the Transitions Recovery Program. If unable to pay

the expenses of the services required by the order, the Former Wife could be

denied an opportunity to resume unsupervised timesharing. In the trial court,

however, the Former Wife made no such assertion or demonstration of prospective

inability to pay those expenses.

Two of our sibling district courts have determined that the costs of

supervision should be treated as a child support expense and included in those

calculations. Moore v. Yahr, 192 So. 3d 544 (Fla. 4th DCA 2016); Perez v. Fay,

160 So. 3d 459 (Fla. 2d DCA 2015). But the Former Wife has not pointed to any

authority providing similar treatment for expenses of monitoring and treating

substance abuse imposed as a result of a party’s violation of prior agreed orders.

For these reasons, we affirm the order in Case No. 3D18-1420 relating to the

modification of timesharing.

Case No. 3D18-1457: Evaluation

3 In contrast, the order in Hunter was “uncertain as to when Mr. Hunter may petition the court to reestablish visitation.” 540 So. 2d at 238.

5 In this second of the consolidated cases, the Former Wife contends that the

portions of the same order requiring “the Former Wife to submit to a substance

abuse evaluation, be fitted for a SCRAM bracelet, attend substance abuse

treatment and be responsible for the costs associated with same” are a departure

from the essential requirements of the law, resulting in material injury for the

remainder of the case, such that the injury cannot be corrected in a post-judgment

appeal. M.M. v. Florida Dep’t of Children & Families, 189 So. 3d 134 (Fla. 2016).

For the reasons previously described, and on the record before us, we find

that none of these elements necessary to a writ of certiorari has been demonstrated,

and thus deny the petition.