THEODORE MOONINGHAM vs STEPHANIE MOONINGHAM

• Court: District Court of Appeal of Florida
• Decided: April 28, 2023
• Docket: 22-1800
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

THEODORE MOONINGHAM,

Appellant,

v. Case No. 5D22-1800 LT Case No. 2019-DR-1272 STEPHANIE MOONINGHAM,

Appellee.

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Opinion filed April 28, 2023

Appeal from the Circuit Court for St. Johns County, Joan Anthony, Judge.

Clyde M. Taylor, III, of Taylor & Waldrop, St. Augustine, for Appellant.

Patricia L. Parker, and David F. Elder, Law Offices of Patricia L. Parker, P.A., Jacksonville, for Appellee.

KILBANE, J.

Theodore Mooningham (“Former Husband”) appeals the portion of the

trial court’s final judgment incorporating a Parenting Plan that provided

Stephanie Mooningham (“Former Wife”) ultimate decision-making authority over their minor son’s education, academics and non-emergency health care

should the parties be unable to agree. We have jurisdiction. See Fla. R.

App. P. 9.030(b)(1)(A); 9.130(a)(3)(C)(iii)b.

Former Husband argues that the trial court’s inclusion of those

conditions to shared parental responsibility modified the previous consent

partial judgment providing for unconditioned “shared” parental responsibility,

without a specific finding of detriment to the child, in accordance with section

61.13(2)(c)2, Florida Statutes (2022). He further argues that the modification

was not an issue presented by either party for determination at the final

hearing on the reserved issues, and thus, violated his due process right to

notice and the opportunity to be heard. We agree and reverse.

Facts

In August 2019, Former Wife filed her petition for dissolution of

marriage and Former Husband counter-petitioned. At the time, the parties

had two minor children, one of whom has since reached age eighteen. The

other child, P.M., is still a minor. The trial court entered a final judgment

dissolving the marriage in May 2021, bifurcating the myriad of other issues

associated with dissolution for later disposition. Former Wife amended her

petition in 2021 to seek sole parental responsibility for the remaining minor

child, but the parties subsequently entered into a consent partial judgment,

signed and filed by the trial court in March 2022. The consent partial 2 judgment awarded shared parental responsibility, without conditions, in

accordance with section 61.13(2)(c)2.

The parties then proceeded to trial on the remaining unresolved

issues–primarily child support and time-sharing. Former Husband also

requested that the court modify a separate provision of the consent partial

judgment, which related to reunification therapy aimed at reestablishing a

relationship between Former Husband and P.M. Neither party sought

modification of the shared parental responsibility provision of the consent

partial judgment, and neither party presented any evidence at trial on that

subject.

In its final judgment of dissolution, the trial court denied the requested

modification of the reunification therapy provisions. It ordered the parties to

“abide by” the prior consent partial judgment and granted shared parental

responsibility of the minor child, reiterating the “shared” parental

responsibility provision of the consent partial judgment. However, the trial

court also incorporated a Parenting Plan and attached it to the final judgment.

Section IV(1) of the Parenting Plan provided for shared parental

responsibility but gave Former Wife ultimate decision-making authority

regarding P.M.’s education, academics, and non-emergency health care in

the event the parties are unable to agree.

3 Former Husband timely moved for rehearing. The trial court denied

the motion, and this appeal followed.

Analysis

The relevant language of section 61.13(2)(c)2 states, “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.” (Emphasis added).

In this case, the trial court’s final judgment contained no specific finding

of detriment to P.M., which section 61.13(2)(c)2 requires for the court to

depart from the statute’s mandate of shared parental responsibility. In

Markham v. Markham, 485 So. 2d 1299, 1299–300 (Fla. 5th DCA 1986), we

reversed a trial court’s decision giving ultimate decision-making authority to

the wife, noting that both parents were fit, there was no finding that shared

responsibility would be detrimental to the child, and the trial court’s ruling

frustrated the purpose and intent of the then “new” parental responsibility

law. Later, in Maslow v. Edwards, 886 So. 2d 1027, 1028 (Fla. 5th DCA

2004), we reiterated that section 61.13(2)(c)2 requires a specific finding of

detriment to the child for the court to depart from shared parental

responsibility mandated by the statute. We further stated that a finding of

detriment to the child is distinct from any findings regarding the best interests

of the child. Id. No such findings were made here. 4 Former Husband was deprived of due process when the trial court’s

final judgment included the conditions to shared parental responsibility from

the Parenting Plan without affording him notice and the opportunity to be

heard regarding those conditions. See Velez v. Lafontaine, 318 So. 3d 630,

631 (Fla. 5th DCA 2021) (trial court denied due process in granting relief not

requested by pleadings or noticed to parties). Former Husband did not, as

Former Wife contends, “open the door” or otherwise impliedly consent to trial

on parental responsibility by contesting the separate and distinct provision

regarding reunification therapy because the evidence presented was

relevant to a properly pled issue and was not admitted for the purpose of

trying any issue related to shared parental responsibility. Cf. Frantz v. EM

Paving Corp., 288 So. 3d 1285, 1288 (Fla. 5th DCA 2020) (“An issue is tried

by consent when there is no objection to the introduction of evidence on that

issue, unless the evidence is relevant to other, properly pled issues.” (quoting

Book v. City of Winter Park, 718 So. 2d 945, 947 (Fla. 5th DCA 1998))).

Conclusion

Accordingly, the final judgment’s incorporation of the Parenting Plan’s

provision giving Former Wife ultimate decision-making authority over P.M.’s

education, academics, and non-emergency health care is reversed. The

cause is remanded with instructions to enter an amended Parenting Plan

5 that provides for shared parental responsibilities in accordance with the

consent final judgment.

REVERSED and REMANDED.

EDWARDS and HARRIS, JJ., concur.