Bonnie E. Daniels, Appellant,
Justin Caparello, Appellee.
appeal from the Circuit Court for Leon County. Kevin J.
L. Rumph, Jr. of Sweeting & Rumph, P.A., Tallahassee, for
A. McNeely of Messer Caparello, P.A., Tallahassee, for
ON MOTION FOR CLARIFICATION, FOR REHEARING, FOR
REHEARING EN BANC, AND FOR CERTIFICATION
motions for rehearing, rehearing en banc, and certification
are denied, but her motion for clarification is granted in
part. The opinion issued on April 20, 2018, is withdrawn and
the following opinion is substituted in its place.
the mother, seeks review of a nonfinal order establishing the
timesharing schedule for the parties' child. We affirm
for the reasons that follow.
2015, the parties entered into a mediated settlement
agreement to resolve the paternity action filed by Appellee,
the father, concerning the parties' then two-year-old
child. The agreement-which was "ratified, confirmed, and
approved" in the final judgment entered by the court in
the paternity action- provided for shared parental
responsibility and established a timesharing schedule for the
father that gradually increased to "50-50/equal time
sharing . . . beginning June 1, 2017, and thereafter."
The agreement did not specify how the 50-50 timesharing would
be structured, but rather provided that the parties would
mediate that issue in early 2017 if they were unable to agree
on a schedule.
2017, after an unsuccessful mediation, the father filed a
motion to enforce the 50-50 timesharing requirement in the
mediated settlement agreement and to establish a schedule for
the 50-50 timesharing. At the hearing on the motion, the
judge stated his intent to order a "default week-on,
week-off" timesharing schedule, but before that ruling
was memorialized in a written order, the parties stipulated
to a different schedule. The order entered by the trial court
adopted the schedule stipulated to by the parties.
seeking to reverse the trial court's order, the mother
essentially raises three arguments. We find each argument to
be without merit.
we summarily reject the mother's argument that the trial
court erred in ordering 50-50 timesharing effective June 1,
2017, because as the trial court found, the clear and
unambiguous language of the mediated settlement agreement
provides for 50-50 timesharing from that date forward. By its
terms, the only issue the agreement left open for subsequent
litigation was "how that 50-50 parenting time schedule
should be structured."
with respect to the specific timesharing schedule established
by the trial court, we agree with the father that the mother
invited any error and cannot challenge that schedule on
appeal because she stipulated to it. See Mohammad v.
Mohammad, 371 So.2d 1070, 1071 (Fla. 1st DCA 1979);
Duffy v. Duffy, 247 So.2d 493, 493 (Fla. 2d DCA
1971); Shenk v. Shenk, 126 So.2d 286 (Fla. 3d DCA
we reject the mother's argument that the trial court
erred by not expressly finding that the stipulated-to
timesharing schedule was in the child's best interest.
This argument was not preserved for appellate review because
the mother never presented it to the trial court for a
ruling. See Hentze v. Denys, 88 So.3d 307, 311 (Fla.
1st DCA 2012); LaCoste v. LaCoste, 58 So.3d 404, 405
(Fla. 1st DCA 2011); Owens v. Owens, 973 So.2d 1169
(Fla. 1st DCA 2007). We recognize that the mother argued at
the hearing that "[t]here's a plethora of potential
50/50 schedules out there [a]nd the Court has to determine
which of those schedules is in the best interest of the
child." However, after the trial court entered the order
adopting the timesharing schedule stipulated to by the
parties post-hearing, the mother did not file a motion for
reconsideration or otherwise apprise the trial court that it
still needed to find the stipulated-to schedule to be in the
child's best interest. Moreover, because the mother does
not argue on appeal that the specific schedule
established by the trial court (which she agreed to) is not
in the child's best interest,  we decline to hold that the
trial court's failure to make a best interest finding is
fundamental error in this case.
we affirm the order establishing the 50-50 timesharing