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Duncan v. Brickman

Florida Court of Appeals, Second District

October 25, 2017

DAVID DUNCAN, Appellant,
v.
THALIA TATHAM BRICKMAN f/k/a, THALIA DUNCAN, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.

          Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa and Kendra R. Davis of Law Office of Kendra Davis, P.A., Tampa, for Appellant.

          Mark A. Neumaier, Tampa, for Appellee.

          LUCAS, Judge.

         David Duncan, the father of a minor child, A.L.D., appeals from orders that emanated from a contempt proceeding in which the circuit court curtailed his timesharing with A.L.D. For the reasons that follow, we must reverse.

         I.

         The protracted litigation between Mr. Duncan and A.L.D.'s mother, Thalia Tatham Brickman, originated in 2006, when A.L.D. was sixteen months old.[1] Initially, the parties were able to settle several issues, including those relating to the distribution of their property and debts. Disputes about the rearing of their child, however, remained. In August of 2008, the trial court entered a temporary timesharing order awarding majority timesharing to Mr. Duncan, while referring the final determination of paternity, timesharing, and child support to a general magistrate.

         The general magistrate would not conduct hearings on these issues until the summer of 2010, two years after the referral, and those hearings would continue into the spring of 2011 before a report and recommendation was issued that winter. Ms. Brickman filed exceptions to the report and recommendation, and in the summer of 2012, now four years after the initial referral, the trial court held a hearing on those exceptions. Following that hearing, the trial court referred the matter back to the general magistrate for clarification of a procedural issue concerning rebuttal witnesses. In the meantime, from September 2011 to September 2012, Ms. Brickman had filed five motions for contempt, each alleging that Mr. Duncan had violated the temporary timesharing order, which, four years after its entry, was still the operative timesharing order in effect. The trial court heard these motions in a consolidated fashion over the course of two hearings, one held in the spring, and the other in the summer, of 2013.[2]The hearings concluded, and the presiding judge informed counsel for the parties that he would reserve ruling and render an order at a later time.

         The court would not issue that order for three years.

         After the contempt hearings concluded, this matter lay dormant for several months until the spring of 2014, when the general magistrate-almost two years after the matter was referred back to him as a result of Ms. Brickman's exceptions-issued a new report and recommendation. Ms. Brickman filed exceptions to this new report and recommendation as well, but for reasons unclear, the trial court did not rule on these exceptions for another two years. While Ms. Brickman's latest exceptions remained pending, the circuit court entered an order on her contempt motions on June 13, 2016.

         In its order, the trial court found Mr. Duncan in contempt of the temporary timesharing order, which, by now, had been in force for eight years. As part of its contempt order, the trial court modified the parties' timesharing with A.L.D. Mr. Duncan had enjoyed majority timesharing for the past eight years, but the contempt order purported to grant both parents equal timesharing. In that regard, the order stated:

The prior order relating to temporary time-sharing is modified in the following respects. Mr. Duncan shall no longer have temporary majority time-sharing. Instead, temporary timesharing shall be shared such that Mr. Duncan shall have fifty percent time-sharing with the Minor Child and Ms. Brickman shall have fifty percent time-sharing with the Minor Child. . . .
Mr. Duncan is again admonished to refrain from exercising sole parental responsibility and from conduct that is not conducive to effective co-parenting. Further sanctions may be ...

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