FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Heather Pinder
Christie Mitchell, of The CLM Law Firm, P.A., Orlando, for
Shannon L. Akins, of Law Offices of Shannon L. Akins, P.A.,
Orlando, and David T. Roberts, of The Roberts Family Law
Firm, P.A., Orlando, for Appellee.
Ray Rivera ("Father") timely appeals an order that
granted Shannon Purtell's ("Mother") motion for
a new trial and set aside a Final Judgment of Paternity,
Parental Responsibility, Timesharing and Child Support
("Final Judgment"). Father's only argument on
appeal is that the trial court erroneously concluded in its
order granting a new trial that it could not prospectively
modify timesharing as of the time the child starts
kindergarten. We agree with Father and reverse the trial
court's order granting a new trial.
Final Judgment and Order Granting New Trial
and Father both filed petitions to determine paternity below.
At the conclusion of trial, the court entered a Final
Judgment finding that Father is the child's biological
and legal father and set a timesharing
the court ordered equal timesharing, with each parent having
the child multiple nights during the week even though the
parties live about fifty miles apart. However, the Final
Judgment provided that once the child started kindergarten,
the child's residence for school purposes would be
Father's home. At that point, Father would have majority
timesharing during the school year unless Mother has
"moved within 25 miles" of Father's residence
by that time.
moved for rehearing and a new trial, arguing, inter
alia, that the Final Judgment "improperly and
prospectively required what amounts to a relocation of the
child." She argued that the trial court could not make a
"prospective" determination as to timesharing,
citing to J.P. v. D.P., 196 So.3d 1274 (Fla. 1st DCA
2016). According to Mother, J.P. prohibits the trial
court from making any determination based on future
hearing, the trial court granted Mother's motion for new
trial, citing J.P. and Arthur v. Arthur, 54
So.3d 454 (Fla. 2011). In so doing, the trial court
echoed the Arthur decision and reasoned that:
the court is not equipped with a crystal ball that enables
the court to determine what is best for the child when she is
school-aged. Rather, the court can only make a determination
of the best interest of the child at the time of the final
appeal, Father argues that the trial court erred as a matter
of law when it determined that it could not prospectively
determine a change in timesharing based upon the child
starting kindergarten. Father distinguishes Arthur
and its progeny, arguing that the trial court may
prospectively determine timesharing based upon an objectively
and reasonably certain future event, citing to this
court's decisions in Snowden v. Snowden, 985
So.2d 584 (Fla. 5th DCA 2008) and Stevens v.
Stevens, 929 So.2d 721 (Fla. 5th DCA 2006). Mother, on
the other hand, argues that Arthur and J.P.
apply here, and that the trial court's timesharing plan
is improperly prospective.
review the trial court's order granting rehearing and a
new trial de novo because the only issue on appeal presents a
pure question of law. See ...