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Corbin Kitchen v. Cerullo

Florida Court of Appeals, Third District

December 18, 2019

Corbin Kitchen, Appellant,
v.
Melissa Cerullo, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from non-final orders from the Circuit Court for Monroe County Lower Tribunal Nos. 15-1025-K & 18-264-K, Bonnie J. Helms, Judge.

          Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.

          The Manz Law Firm, and Michelle Klinger Smith, for appellee.

          Before EMAS, C.J., and SALTER and LOBREE, JJ.

          EMAS, C.J.

         These three consolidated appeals arise out of orders entered in a contentious post-judgment family case. For our purposes, the orders center upon the trial court's action granting temporary custody of the parties' minor child to the maternal grandmother. For the reasons that follow, we hold that the trial court exceeded the scope of our relinquishment of jurisdiction and directly addressed the substance of one of the orders on appeal. We also hold that the trial court erred in awarding temporary custody to the maternal grandmother and in granting the mother's request for a child pick-up order.

         BACKGROUND

         The factual and procedural background is lengthy and complicated, and is set out briefly and only as necessary to our resolution of these appeals.

         In 2017, the mother, Melissa Cerullo, was arrested on drug-related charges and incarcerated. The father, Corbin Kitchen, was subsequently awarded custody of their three-year-old child. Months after being awarded custody, Kitchen petitioned to relocate with the minor child to Tennessee, and the trial court entered a final judgment granting relocation and reserving jurisdiction "to address all issues of time-sharing and parental responsibility, as well as to enforce or modify the provisions of this Judgment." Two months later, Kitchen was arrested on a domestic violence charge against his wife (the child's stepmother) and-based on that arrest- Cerullo filed motions challenging Kitchen's relocation with the child and requesting that the minor child be temporarily placed with the maternal grandmother.[1] These motions resulted in two of the three orders that are the subject of these consolidated appeals.

         In case numbers 3D18-1603 and 3D18-1605, Kitchen challenges two non-final orders pertaining to custody of the parties' minor child: a July 5, 2018 Order prohibiting Kitchen from relocating with the minor child to Tennessee, and a July 11, 2018 Order, removing the minor child from Kitchen's custody and temporarily placing the child with the maternal grandmother for two months (July and August 2018).[2]

         We consolidated these two appeals and, while they were pending, Kitchen filed a motion to relinquish jurisdiction to permit the trial to rule on a still-pending motion to vacate the two orders on appeal. We temporarily relinquished jurisdiction for the limited purpose of permitting the trial court to rule on the pending motion to vacate the July 5 and July 11 Orders.

         Following our relinquishment, the trial court set a hearing on Kitchen's motion to vacate. However, the mother requested that, at the scheduled hearing, the trial court also consider the continued placement of the child with the maternal grandmother. The placement of the minor child with the maternal grandmother was the very subject of the July 11 Order pending on appeal. Kitchen objected, arguing that this Court's relinquishment only authorized the trial court to rule on the motion to vacate, and that the trial court could not expand the scope of the relinquishment order to include an evidentiary hearing on the child's continued placement with the maternal grandmother.

         The trial court disagreed and conducted an evidentiary hearing. Following the hearing, the trial court on August 31, 2018, entered its order denying Kitchen's motion to vacate and ordering the child's continued placement with the maternal ...


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