final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Columbia County. Paul S.
Jeffrey A. Conner of Three Rivers Legal Services, Inc., Lake
City, for Appellant.
Pierce Kelley, Jr., Fort White, for Appellee.
Jean Thomas, the former wife, appeals the amended order on
the supplemental petition to modify parenting plan filed by
Henrithson Joseph, the former husband. The issue presented on
appeal is whether shared parental responsibility and
timesharing between the parties as established by a final
judgment of dissolution of marriage may thereafter be
modified without findings that the modification is in the
best interests of the child. Although the former wife is not
the child's biological mother, we hold that under the
circumstances of this case, the amended order is erroneous on
its face, and it must be reversed and remanded for further
2008, during the marriage of Ms. Thomas and Mr. Joseph, they
adopted I.J. Also during the marriage, Mr. Joseph purportedly
fathered Z.J. Unlike I.J., no record evidence was presented
during the dissolution or the modification that Z.J. was
adopted by Ms. Thomas. It was established during the
dissolution that Z.J.'s biological mother was a relative
of Ms. Thomas and that shortly after Z.J.'s birth, the
birth mother voluntarily gave Z.J. to Ms. Thomas and Mr.
Joseph to raise as their own. Z.J.'s birth certificate
listed no father but listed the child's surname as
marriage of Ms. Thomas and Mr. Joseph was dissolved by the
final judgment of dissolution entered December 26, 2012. In
the final judgment, the trial court found that the parties
agreed that Z.J. "is the biological child of the
Husband, but is not the biological child of the Wife."
The court recognized the parties' agreement "that
the children should remain together and that the parties will
have shared parental responsibility [of both I.J. and Z.J.],
with the Wife having majority timesharing with both children
and the Husband having timesharing with them every other
court provided Mr. Joseph "timesharing with the children
every other weekend" and as the parties agreed for
holidays. The final judgment specified how exchanges of the
children would take place and provided that more specific
orders regarding timesharing could be sought by either
party. Finally, the court ordered that
"[t]he parties may modify as they mutually agree"
but if they could not agree, "the timesharing
arrangement ordered herein shall control." No appeal was
taken from the final judgment of dissolution of marriage.
2018, Mr. Joseph filed his supplemental petition to modify
parental responsibility. He alleged certain changes in
circumstances since the entry of the final judgment of
dissolution, including his superior ability to provide a
stable and comfortable home for the children and his concern
about the living conditions and care Ms. Thomas provided.
Based on these allegations of changed circumstances, Mr.
Joseph sought sole parental authority and timesharing of
Z.J., and at least equal timesharing with I.J.
response, Ms. Thomas denied Mr. Joseph's allegations and
specifically denied that she failed to properly care for the
children. In that response Ms. Thomas also
"affirmatively asserts that the Former Husband is not
the biological father of the minor child
court heard Mr. Joseph's supplemental petition to modify
in October 2018. The hearing was not transcribed, but a
stipulation of the evidence was prepared and approved for
this appeal. See Fla. R. App. P. 9.200(b)(5). The
approved stipulated evidence included Z.J.'s date of
birth; that his "biological mother" was related to
Ms. Thomas "in some way" but was now deceased; that
Z.J.'s birth certificate lists his surname as
"Joseph;" and that Z.J. lived with Ms. Thomas and
Mr. Joseph beginning shortly after the birth in 2008, and
resided primarily with Ms. Thomas after the final judgment of
dissolution was entered in 2012. The stipulated testimony
included Mr. Joseph's acknowledgment that he had denied
he was Z.J.'s biological father in two court filings
subsequent to the final judgment (in child support
proceedings) and that he is not actually Z.J.'s
biological father. However, he "accepts the
determination that he is the biological father."
amended order on the supplemental petition to modify the
parenting plan, the trial court found "an unforeseen
substantial change in circumstances has been shown" but
did not elaborate. See § 61.13(2)(c), Fla.
Stat. (2018). The court also found that the final judgment
"clearly shows" that Ms. Thomas is not a
"parent" of Z.J. and, while there was no DNA
evidence of parenthood, "no one other than [Mr. Joseph]
has established any legal/court-ordered right to the
child." The court ordered that Mr. Joseph was Z.J.'s
"only living legal parent" and thus "may
exercise all parental authority regarding [Z.J.], including
where he resides and with whom." Accordingly, the
amended order eliminated any parental status, parental
responsibility, and timesharing for Ms. Thomas which had
previously been established in the final judgment of
dissolution of marriage. The court did not find or set out in
its amended order any determination that it was in ...