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BRASWELL v. BRASWELL
Factual and Procedural Background
Renee Braswell appeals an amended order granting A. Glenn Braswell's "Emergency Motion for Order Allowing the Minor Child to Reside with Father." The father filed the emergency motion on January 9, 2006, requesting that the child reside with him as the primary residential parent. The mother objected, citing procedural deficiencies under Florida Family Law Rules of Procedure Rule 12.110, which requires modification proceedings to be initiated by petition rather than motion. The trial court denied the mother's motion to dismiss without explanation and proceeded with hearings over several months. During the hearings, drug and alcohol testing revealed the mother tested positive for cocaine, while the father tested negative. The court ultimately granted temporary custody to the father and ordered the mother to undergo substance abuse evaluation and waive confidentiality regarding treatment records, despite explicitly finding no imminent danger or dire emergency to the child. The mother appealed the order.
Legal Issues Presented
- Whether the trial court erred in treating the father's motion as an emergency when there was no actual emergency demonstrated.
- Whether custody could be temporarily modified on the basis of an emergency motion without a proper petition as required by Florida Family Law Rules of Procedure.
- Whether the trial court had legal authority to order the mother to be admitted for substance abuse evaluation and waive confidentiality of medical records.
Arguments of the Parties
Appellant's Arguments (Mother)
- The father's emergency motion was procedurally improper because Florida law requires modifications of final judgments in family law matters to be initiated by petition, not motion.
- There was no actual emergency justifying expedited relief or temporary custody modification.
- The trial court lacked authority to compel the mother to undergo substance abuse evaluation or waive confidentiality without statutory compliance.
Appellee's Arguments (Father)
- The father filed the emergency motion to protect the child based on concerns about the mother's substance abuse and fitness as a caregiver.
- He sought temporary modification of custody due to the alleged emergency circumstances.
- Regarding the mother's treatment and confidentiality, the father argued the court's orders should be obeyed despite lack of cited statutory authority.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995) | Emergency motions to modify custody require evidence of a real emergency; courts should not proceed if no actual emergency exists. | The court found no actual emergency existed and thus held that proceeding on the emergency motion was an abuse of discretion, relying on this precedent to reverse. |
| Smith v. Crider, 932 So.2d 393 (Fla. 2nd DCA 2006) | Temporary modification of custody pending final hearing requires an actual, demonstrated emergency. | The court cited this case to emphasize that absent an emergency, temporary custody modifications are improper. |
| Hagins v. McNeal, 647 So.2d 1052 (Fla. 5th DCA 1994) | Modification of dissolution judgments requires a petition showing change of circumstances; motions are insufficient. | The court held that the father's emergency motion was an improper attempt to modify custody without a petition, relying on this precedent. |
| Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2d DCA 1993) | Same as above—modification requires petition and proper procedural steps. | Supported the procedural requirement that custody modifications must be initiated by petition, not motion. |
Court's Reasoning and Analysis
The court analyzed the procedural and substantive aspects of the father's emergency motion. It found that the father's affidavit supporting the emergency motion was dated weeks before the filing, indicating no exigent circumstances existed. The court noted the lengthy trial process over several months further negated any claim of an immediate emergency. The trial court's own findings explicitly stated there was no imminent danger or dire emergency to the child. The appellate court emphasized established precedent requiring an actual emergency to justify temporary custody modification without a petition. Because the father's motion sought to modify custody post-judgment by motion rather than petition, the court concluded the trial court abused its discretion by allowing the emergency motion to proceed and granting temporary custody to the father. Additionally, the court highlighted the lack of legal authority for ordering the mother to be admitted for treatment or to waive confidentiality, noting no statutory procedure was followed.
Holding and Implications
The appellate court reversed the trial court's order granting the father's emergency motion and remanded the case for further proceedings consistent with proper procedural requirements.
The decision directly restores procedural protections requiring custody modifications to be initiated by petition and only permits temporary custody changes on a showing of actual emergency. The ruling prevents the use of emergency motions as a substitute for formal petitions, ensuring due process rights such as discovery and witness notice are preserved. No new precedent was created; rather, the court reaffirmed existing Florida family law principles. On remand, the trial court may reconsider custody issues but must comply with procedural and substantive legal standards.
RAMIREZ, J.
Renee Braswell appeals an amended order that granted appellee A. Glenn Braswell's "Emergency Motion for Order Allowing the Minor Child to Reside with Father." We reverse because the trial court erred when it allowed the father to proceed on his motion in the absence of an emergency.
This is the nineteenth appellate proceeding dealing with the domestic relations of Renee and A. Glenn Braswell. This one deals with the father's emergency motion, which he filed on January 9, 2006, and in which he requested that the court order the child to reside with him and designate him as the primary residential parent of the parties' minor child. By motion to dismiss, the mother promptly objected to the father's failure to file a proper pleading, citing Florida Family Law Rules of Procedure Rule 12.110, requiring that "proceedings to modify a final judgment in a family law matter shall be initiated only pursuant to rule 1.110(h) and not by motion." The court denied the motion without explanation. At its first scheduled hearing on February 21, 2006, the mother renewed her objection to the proceeding because there was no emergency. The court again denied any relief, explaining that due to its vacation schedule, there would be several hearings that would stretch out past mid-March. Thus, the mother would have ample time to prepare her case.
His affidavit in support of the motion was dated December 19, 2005 — hardly consistent with any exigent circumstances.
This is precisely what occurred. The court conducted the hearing over six different sessions. On the second day of the trial, the court referred both parents to be tested for drugs and alcohol. The father tested negative for all substances, and the mother tested positive for cocaine and negative for alcohol. The father introduced affidavits from several personnel who previously worked at the Braswell's residence who described the mother as being consistently drunk and under the influence of cocaine. The father concluded that the mother was not capable of caring for the couple's minor child.
The court held the last hearing on April 17, 2006. The court's order dated May 15, 2006, instructed the mother to make arrangements to be admitted to a hospital for a substance abuse evaluation. The court also ordered the mother to waive her confidentiality rights to the treating doctors' reports and/or discharge summaries, and gave the father temporary custody of the parties' minor child. The court specifically found that there was no showing that the parties' minor child was ever in imminent danger and that the child was not in any dire emergency.
Paragraph 10 of the order states as follows:
Even though Almon Glenn Braswell, Jr.'s mother was at times impaired when she was caring for her son, there is no showing in the evidence that the young boy was ever in imminent danger. Fortunately for him, Mrs. Braswell always had a nanny or a housekeeper or security guard or some combination of those personnel present at the house to care for Glenn. However, if Mrs. Braswell wishes to continue as the residential parent, she must make a choice between that role and any desire she may have to use alcohol or illicit substances. Because the court does not find that the child in [sic] any dire emergency, there is not a problem in the deferring the commencement of Mrs. Braswell's evaluation for a month until Glenn finishes his current school year. The facts described at trial evidently have gone on for years. On the other hand, this case does present a "real emergency" as that term is used in Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995). Having an impaired residential parent, even with a nanny or housekeeper speaking limited English present, is a type of emergency which cannot be countenanced or permitted to be continued long-term by the court.
We hold that the court abused its discretion when it treated the father's motion as an emergency and then ordered a temporary modification of custody. There was no evidence in this record of an actual emergency. As in Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995), the case relied upon by the trial court, where there was no evidence of an actual emergency, "once the court became apprised of that fact, it should not have proceeded." Id. at 733. Here, it was clear to everyone that this "emergency" was going to be tried over a period of weeks. In fact, it took five months from the date of the father's execution of the affidavit on December 19, 2005, in support of his emergency motion to the date of the court's order modifying custody dated May 15, 2006. Additionally, the court specifically found that there was no showing that the child was in imminent danger. Courts have recognized that an emergency authorizes a court to act on a temporary basis and modify an existing custody judgment. See Smith v. Crider, 932 So.2d 393 (Fla. 2nd DCA 2006) ("Generally, a court may not modify a final judgment of dissolution of marriage on a temporary basis pending a final hearing on a petition for modification unless there is an actual, demonstrated emergency. Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995). This rule is founded upon the principles of res judicata arising from the entry of a final judgment and upon the due process concerns raised by altering the rights of the parties affected by the judgment."). These cases have also recognized the presence of a real emergency where a child is threatened with physical harm or is about to be improperly removed from the state. The record before us shows that no one treated the circumstances here as an emergency, except to deprive the mother of a proper proceeding by petition, with its concomitant rights to a witness list and discovery. In fact, two principal expert witnesses for the father, Dr. Deborah Mash and Dr. Oren Wunderman, testified with no prior notice to the mother.
It appears that the father's motion was merely a post-judgment attempt to modify custody by way of an emergency motion. He specifically requested in his emergency motion that the court modify custody. Florida law unequivocally requires that dissolution judgment modifications assert any change of circumstances in the form of a petition. See Hagins v. McNeal, 647 So.2d 1052, 1053 (Fla. 5th DCA 1994) (where petitioner sought a change in the status quo, court found that this did not constitute an enforcement of the terms of the dissolution judgment, and instead constituted a modification of the judgment that required the court to consider a change of circumstances by way of a petition). See also Ventriglia v. Vaughan, 623 So.2d 836, 838 (Fla. 2d DCA 1993).
For the reasons stated, we reverse the order on appeal and remand this cause. Because we are reversing on the procedural issue, we need not reach the other issues raised by the mother on appeal. However, on remand, the trial court may again be confronted with the same issues. We thus note that the trial court did not make any factual findings in its order that it would be in the best interest of the child to change the temporary custody of the parties' child to the father. Additionally, neither the trial court nor the father's counsel have cited to any legal authority in support of the order compelling the mother to be admitted to a hospital for treatment. Likewise, we can find no support for ordering the mother to waive her rights as they relate to the confidentiality of the doctors' reports and/or discharge summaries.
The only support was suggested by the mother and is contained in chapter 397 of the Florida Statutes, but there was no attempt to follow such statutory authority. The father argues that the mother simply should disobey the court's order, hardly a viable option.
Reversed and remanded.
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