Weissman v. Weissman

102 So. 3d 718, 2012 Fla. App. LEXIS 21270, 2012 WL 6165772
District Court of Appeal of Florida·Decided December 12, 2012·No. No. 2D12-4739·Published·Cited by 2 cases

Opinion

MORRIS, Judge.

The former husband, Mark S. Weiss-man, seeks certiorari review of a September 20, 2012, emergency ex parte order. We grant the petition in part and quash the portion of the order providing that the children shall have no direct or indirect contact with the former husband for ninety days.

Background

As a result of the parties’ dissolution of marriage in 2005, the parties had equal timesharing with their three minor children.1 In 2011, the former wife filed a petition for modification of the final judgment, alleging that the former husband and his girlfriend were responsible for alienating the oldest daughter from the former wife.2 The former husband filed a counterpetition for modification of the final judgment, denying the former wife’s allegations. Dr. Deborah Day, a licensed psychologist, was appointed as guardian ad litem.

In July 2012, the former wife filed a motion to enjoin the former husband’s girlfriend from having contact with the children, based on a preliminary report and recommendation from Dr. Day. The trial court entered the temporary injunction enjoining the former husband from allowing his children to have contact with his girlfriend. The former husband moved to dissolve the injunction, and the former wife then filed two motions, alleging that the former husband was in contempt for failing to obey the terms of the injunction and asking the court to suspend the former husband’s unsupervised timesharing. The former wife asserted that the former husband had allowed the children to have contact with his girlfriend during a vacation. The former wife sought temporary sole parental responsibility to determine the best treatment for the oldest daughter. The former husband filed a motion to modify the injunction and sought supervised contact between the oldest daughter and his girlfriend.

On August 22, 2012, the trial court held a hearing on the pending motions filed by both parties. The former husband with[720] drew his motion to modify the injunction based on a report by Dr. Kathryn Kuehnle that the former husband’s girlfriend may pose a risk of emotional harm to the children. The trial court found that the former husband violated the terms of the injunction, but the trial court declined to find him in contempt due to the serious consequences a contempt finding could have on the former husband’s medical career. The trial court found that it was in the best interests of the children to grant the former wife temporary sole decision making authority over the health care of the children, which included selecting an out-of-state residential treatment program to address the problems between the oldest child and the former wife and the impact those problems have on the younger children. The trial court found that the oldest child needs immediate, intensive psychiatric intervention. The trial court noted that she had threatened to run away, and the trial court expressed a concern that the child may pose a risk to herself. The trial court allowed the younger children to reside with the former wife and the oldest child to reside with the former husband until a treatment program could be selected. The trial court also reduced the former husband’s visitation with the youngest children to after school and evenings on Monday and Friday and all day on Sunday. The trial court entered a written order on September 5, 2012, in accordance with its oral findings and rulings.

On September 18, 2012, the former wife, through her counsel, filed an ex parte letter with the trial court, advising the trial court that Dr. Day and the former wife had decided on a treatment program in California. Included was a proposed order, the terms of which were purportedly consistent with the recommendations of the treatment program. The letter informed the trial court that the treatment program recommended that the order be entered ex parte “because of the substantial likelihood that [former husband] would tell and/or inform the [oldest child] that she will be leaving with [former wife] to attend the program, which would likely cause a disruption in the process.” The former wife also submitted a letter from Dr. Day, who indicated that she had conferred with the intake doctor at the treatment program. Dr. Day “concur[red] with [the intake doctor’s] plan of intervention and requested that] the plan be implemented.”

On September 20, 2012, the trial court entered the proposed ex parte order submitted by the former wife. The order identified the program and provided that it would run from September 22, 2012, to October 2, 2012. The order directed the wife and all three children to attend the program. The order provided that “[u]ntil further order of the [c]ourt, consistent with [the program’s] protocol, it is in [the children’s] best interests to immediately have no direct or indirect contact in any form whatsoever with the [fjormer [h]us-band; relatives, friends, and associates of the [fjormer [h]usband; and [his girlfriend].” The order further provided that it shall be in effect for no less than ninety days from the family’s return from the program. The order directed the former husband to bring the oldest child to the courthouse on September 21, 2012, so that the former wife could transport her to the program.

The former husband now seeks review of the September 20, 2012, order.3 The parties’ petition and counterpetition for modification of the final judgment remain pending in the trial court.

[721] Discussion

In his petition for writ of certiorari, the former husband claims that the trial court violated his due process rights by entering the order prohibiting all contact with his children for ninety days without providing him notice or an opportunity to be heard. He contends that he was not given any notice that the trial court would alter the order entered only two weeks before on September 5, 2012, in a way that would -prevent him from having any contact with his children for a period of ninety days. The former husband argues that no emergency existed that would warrant modifying his visitation oh contact without notice or a hearing.

When a trial court modifies a parent’s visitation without notice and an opportunity to be heard, the parent may seek certiorari review on the basis that the court departed from the essential requirements of the law, resulting in harm that is irreparable on appeal. See A.W.P., Sr. v. Dep’t of Children & Family Servs., 10 So.3d 134, 135 (Fla. 2d DCA 2009); Aiello v. Aiello, 869 So.2d 22, 24 (Fla. 2d DCA 2004). “[U]nder extraordinary circumstances, a trial court may ... enter an order temporarily modifying custody of a child ... without affording prior notice to the opposing party.” Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006). “[Hjowever, such an order requires an emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state.” Id.; Aiello, 869 So.2d at 23.

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Weissman v. Weissman, 102 So. 3d 718, 2012 Fla. App. LEXIS 21270, 2012 WL 6165772 (Fla. Ct. App. 2012).

102 So. 3d 718 (Weissman v. Weissman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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