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Cappola v. Cappola

Florida Court of Appeals, Fourth District

August 28, 2019

DANA CAPPOLA, Appellant,
v.
PAUL CAPPOLA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal of a nonfinal order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Tarlika Navarro, Judge; L.T. Case No. FMCE 07-15072 (38) (90).

          Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for appellant.

          Paul Cappola, Oldsmar, pro se.

          Per Curiam.

         Dana Cappola ("former wife") and her former husband entered into a private agreement whereby their minor child, A.C., was to return to live with the former husband in Pasco County. Subsequently, she filed a "Motion For Status Quo Order Pending The Determination Of The Modification Proceedings" ("motion for status quo") to have the child continue residing with her in Broward County until final modification proceedings concluded. Her motion was denied and she now appeals. We find that the trial court abused its discretion in ruling that it was bound by the parties' private agreement without considering the child's best interest.

         The trial court conducted an evidentiary hearing on the former wife's motion to maintain the status quo. At the conclusion of the hearing, the trial court orally pronounced that it would deny the former wife's motion:

I am going to uphold the agreement . . . of Judge Horowitz . . . and the agreement of the parties, which states that all the minor children are to reside with the father. I am going rule [sic] that [A.C.] be returned to father within forty-eight hours, according -- pursuant to Judge Horowitz's order, and pursuant to the agreement which specifically states that this does not constitute a permanent nor a significant change of circumstances or a basis for a modification of the existing and prevailing modification order and timesharing order.
It makes it very clear that both the mother and the father made an agreement that this child was to only reside with the mother for a temporary time period and was going to terminate on June 30th, 2018. And whether it was for some ulterior motive that this court is unaware of, it was agreed to by both parties.
And I find it [sic] that Judge Horowitz's order is to stand and that the agreement made between the parties is to stand, and that the appropriate means to get this child back to Broward County would be a modification, that this is not the appropriate way to get a modification.

(Emphases added). The trial judge noted that it was the court's "job to uphold contracts and uphold the law." When the former wife indicated that she had a pending motion to set aside the agreement, the court responded that the motion was moot.

         Following protests by the former wife, the court stated, "[u]nfortunately, I have to uphold the law. This is a contract that you signed, ma'am." The former wife responded, "I understand, but in the beginning of the hearing you said you were going to go with what's in the best interest of [A.C.]." The court replied, "[y]ou had the - you agreed and signed this with Mr. Cappola. You agreed to this." The court also stated that it "[had] to go by what Judge Horowitz ordered and what [the former wife] signed with [the former husband]." (Emphasis added).

         After the hearing the court entered an order denying the former wife's motion. In its written order, the court noted that "it reviewed [the] agreement, along with the testimony and credibility of both the Mother and the Father as it pertains to the agreement and found that said agreement was in the best interest of the minor child, A.C." The order further stated that the court "considered the relevant factors in [section 61.13(3), Florida Statutes (2018)] and the evidence and testimony applying a 'best interest' standard as to the minor child, A.C."

         "A trial court's ruling on a timesharing issue of a child is reviewed for an abuse of discretion." Lewis v. Juliano,242 ...


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