final until disposition of timely filed motion for rehearing.
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).
A. Bushell of Bushell Law, P.A., Fort Lauderdale, for
Cappola, Oldsmar, pro se.
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.
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.
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).
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."
trial court's ruling on a timesharing issue of a child is
reviewed for an abuse of discretion." Lewis v.