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Rivera v. Purtell

Florida Court of Appeals, Fifth District

June 22, 2018

JASON RAY RIVERA, Appellant,
v.
SHANNON PURTELL, Appellee.

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

          Appeal from the Circuit Court for Orange County, Heather Pinder Rodriguez, Judge.

          Christie Mitchell, of The CLM Law Firm, P.A., Orlando, for Appellant.

          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.

          EISNAUGLE, JUDGE

         Jason 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.

         The Final Judgment and Order Granting New Trial

         Mother 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 schedule.[1]

         Initially, 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.

         Mother 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 events.

         After a 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 hearing.

         On 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.

         We 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 ...


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