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Marini v. Kellett

Florida Court of Appeals, Fifth District

August 16, 2019

GRACE MARINI, Appellant/Cross-Appellee,
v.
STEVEN KELLETT, Appellee/Cross-Appellant.

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

          Appeal from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.

          Mark A. Skipper, of Law Office of Mark A. Skipper, P.A., Orlando, for Appellant/Cross-Appellee.

          John A. Baldwin, of Baldwin & Morrison, P.A., Fern Park, for Appellee/Cross-Appellant.

          EDWARDS, J.

         The parties in this paternity and time-sharing case are Appellant/Cross-Appellee Grace Marini ("Mother") and Appellee/Cross-Appellant Steven Kellett ("Father"). They have spent a great deal of time and money on litigation because they are unable to reach any agreement on most aspects of each party's relationship with their son. In fact, it seems that they only agree on two things. First, they both love their son. Second, they agree that the court-ordered time-sharing schedule is not in the best interests of the child because it requires a young child and one of his parents to travel three out of four weekends every month by plane between North Carolina and Florida at great expense and inconvenience to both parents and the child. We find that the trial court abused its discretion in establishing the aforementioned time-sharing and travel schedule.

         We also find that the trial court abused its discretion in ordering the child's surname to be changed from that of Mother to Father's for the announced purpose of establishing a good father-son bond and to conform to certain traditions. The trial court also abused its discretion with regard to calculating the parties' relative financial situations for purposes of child support and allocation of expenses related to the child by: (1) considering each party's gross rather than net income, (2) overlooking the cost incurred by Mother for the child's and her own health insurance, (3) ordering a constant amount of monthly child support, retroactively, currently, and for the future, without considering that the amount of time the child spent with each parent in the past is different than it is presently and is different from what it will be in the future, (4) imputing income to Mother based upon full-time employment, when Mother could not be employed full-time given her travel obligations under the time-sharing scheme, (5) failing to properly consider the financial evidence presented, and (6) ordering Mother to pay $25, 000 of Father's attorney's fees without making any findings of the parties' relative need and ability to pay. Further, in some respects, the amended final judgment departs from the trial court's oral pronouncements without explanation. We reverse the amended final judgment and remand for further proceedings to correct those rulings. On the other hand, we affirm without further discussion those portions of the amended final judgment that determined: (1) Father is the child's natural, biological father, (2) an amended birth certificate shall be issued that identifies and documents Father as the child's father, (3) that permitting Mother to permanently relocate to North Carolina is in the child's best interests, and (4) that Father is entitled to reasonable time-sharing with the child, which may include extended time periods during summers, holidays, and some weekend visitation. We will set forth some factual background and then discuss each issue in turn. We recognize that the parties have made the trial court's already difficult job all the more so by their unwillingness to agree, failing to timely provide relevant evidence to the trial court, and failing to focus primarily on their child's best interests.

         BACKGROUND FACTS

         Mother and Father dated for a period of time in 2013, but never married each other. After they broke up, Mother advised Father that she was pregnant with his child. He in turn advised Mother that when his prior wife separated from him, he became very upset, exhibiting significant emotional problems and engaging in several episodes of dangerous behavior within a relatively short period of time. Mother, who became concerned by the news of Father's emotional problems and unsafe behavior, consulted a professional about how to balance ensuring the child's safety with permitting Father to have a relationship with their child. Mother determined that the proper balance would be to limit Father to short supervised visits at her house, initially twice but then later once per week.

         Because Father did not find such limited visitation acceptable, he filed a petition to determine paternity, establish a time-sharing and parenting plan, and determine how the child's on-going expenses would be paid by each parent. Mother counter-petitioned, seeking similar relief and also requesting the court's permission to move from Florida to North Carolina where her fiancé lived and where she had a firm offer for a good, well paying job. Father was permitted to amend his petition several times and added a request that the child's surname be changed from Mother's to his and that a new birth certificate be issued identifying Father as the child's father.

         TIME-SHARING AND TRAVEL SCHEDULE

         The standard of review for rulings on time-sharing and travel schedules is whether the trial court abused its discretion. See Lewis v. Juliano, 242 So.2d 1146, 1148 (Fla. 4th DCA 2018). The trial court granted, on a temporary basis initially, Mother's request to relocate from Florida to North Carolina. The relocation was later approved on a permanent basis. The trial court found that Mother's concern about the child's safety, given Father's prior emotional problems and dangerous behavior was understandable and genuine; however, there was no actual need to so strictly limit Father's visitation. Initially, the court ordered that Father would have four consecutive nights each month with the child in North Carolina and four consecutive nights each month with the child in Florida, all unsupervised. All the travel between Seminole County, Florida and North Carolina was restricted to Allegiant Airlines.

         At a later hearing, the trial court modified the time-sharing with Father to receive the first, third, and fourth weekends of each month, from Thursday to Monday, half of summer and Christmas breaks, Father's Day weekend, and alternating Thanksgiving and Easter holidays. The trial court suggested that the parties could reduce the travel expenses by having the child travel alone on the airplane, and simply having a flight attendant take him on and off the planes. The parties advised the trial court that this travel schedule required purchasing at least six round-trip tickets each month at an expense of approximately $2700 each month and that the travel schedule was exhausting for the child as well as for the parents, especially when flight delays were taken into consideration. Both parties testified that the travel schedule was wreaking havoc on their employment status because of the time each had to miss from work. Finally, the parties advised the trial court that their son was too young to travel by himself on a plane and that the airline would not permit his solo travel until he was five years old.

         After more hearings, the trial court again dealt with time-sharing and travel in an amended final judgment. All of Father's time-sharing would take place in Florida and all of Mother's would be in North Carolina. The amended final judgment provided a three-tier scheme for non-holiday visitation. For the first tier, until the child reaches the age of five, Father shall have six consecutive overnights with the child beginning on the first and third Monday of each month.[1] The second tier provided that when the child reaches five, but before he enters elementary school, Father will have time-sharing on the first, third, and fourth weekend of each month, from Thursday to Monday. The third tier provided that once the child enters elementary school, the Father will still have him the first, third, and fourth weekends of each month, but from Friday until Sunday evening.[2] The amended final judgment also provided: the parents would each have visitation during one-half of the summer and ...


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