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Gimonge v. Gimonge

Florida Court of Appeals, Fifth District

March 23, 2018

EMMANUEL SOSPETER GIMONGE, Appellant,
v.
LAURIE SOSPETER GIMONGE, Appellee.

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

          Appeal from the Circuit Court for Lake County, Heidi Davis, Judge.

          Jason Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellant.

          Adam H. Sudbury of Apellie Legal, Orlando, for Appellee.

          PER CURIAM.

         Emmanuel Sospeter Gimonge ("Father") appeals a non-final order granting an emergency motion for child pick-up in favor of Laurie Sospeter Gimonge ("Mother").[1] Father argues that the trial court erred in granting Mother's motion because she failed to file a petition to relocate with the couple's minor child under section 61.13001, Florida Statutes (2017). We affirm.

         The parties were married in 2011 and have one child in common. They separated in 2015, but Mother filed for dissolution of marriage in 2017. That action remains pending. After filing for dissolution, Mother, without Father's consent or a court order, left Florida with the child and moved to Michigan. Father filed an ex parte emergency motion for child pick-up, seeking to have the child returned to Florida. The court declined to rule on an ex parte basis and set the motion for a hearing. We glean from the limited record that the parties ran out of time at the scheduled hearing.

         The parties subsequently entered into a stipulation that resolved Father's motion, the nature of which forms the essence of this appeal. The terms of the agreement provided that the child would remain in Mother's custody, pending the outcome of a scheduled mediation. If the parties were unable to reach an agreement during mediation, either party would be able to file a motion for temporary relief pending trial. Father would have one month of timesharing in the summer, which required that he would pick the child up in person in Michigan, as well as timesharing over winter break. Additionally, the agreement provided, "Father shall not be prejudiced should the child end up attending school in Michigan pending a scheduled mediation or trial date." The agreement specifically provided that Father reserved his right to litigate the issues raised in the emergency motion at the time of trial. The stipulation specified that it was "a temporary agreement without prejudice to either side taking a different, new, or conflicting position later." The trial court approved and ratified the agreement by temporary order.[2]

         Father subsequently filed an ex parte emergency motion for contempt/enforcement and child pick-up, alleging that Mother refused to comply with the agreed-upon summer visitation. As a result, the court awarded Father thirty days of makeup timesharing. Toward the end of that timesharing, Father filed an emergency motion for injunction to prevent the removal of the child from Florida (and by implication his having to return the child to Mother), arguing that Mother had failed to file a petition to relocate with the child and had removed the child from Florida without his consent. In turn, Mother filed an emergency motion for child pick-up order, alleging that Father refused to return the child following his timesharing pursuant to the court ordered make-up visitation. The trial court ruled in favor of Mother.

         Section 61.13001, Florida Statutes (2017), governs "[p]arental relocation with a child." It provides, in relevant part:

(2) Relocation by agreement.-
(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that:
1. Reflects consent to the relocation;
2. Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled ...

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