- Bookmark
- Share
- CaseIQ
PHILLIPS v. WINTTER
Factual and Procedural Background
The father filed a motion for temporary modification of custody, alleging that the mother subjected their minor child to physical violence and neglect. His allegations included references to a school report recounting the child's statements, the mother's admission of physical altercations with the child in various settings, and concerns about the child's exposure to domestic disputes and marijuana in the home of the mother's adult daughter. The trial court had previously prohibited the mother from leaving the child in the custody of her adult daughter.
Initially, the trial court indicated that the custody modification motion required an evidentiary hearing and could not be considered on motion calendar. After the father resubmitted the motion as a verified ex parte motion for temporary injunction, attaching partial deposition transcripts, the court granted exclusive temporary custody to the father pending an evidentiary hearing. The mother filed an emergency motion to stay the order, which was denied. The evidentiary hearing was later canceled because the order was under appeal. This appeal followed.
Legal Issues Presented
- Whether the trial court abused its discretion in granting exclusive temporary custody to the father based on an ex parte motion without a true emergency.
- Whether the father met the legal standard for temporary modification of custody by establishing a substantial change in circumstances and that the change served the best interests of the child.
- Whether extraordinary circumstances justified granting temporary custody without prior notice or an opportunity to be heard.
Arguments of the Parties
Appellant's Arguments (Mother)
- The trial court abused its discretion in granting temporary exclusive custody to the father.
- No true emergency existed to justify an ex parte order.
- The father's allegations were based on unsubstantiated hearsay and insufficient evidence.
Appellee's Arguments (Father)
- Alleged that the mother physically abused the child, supported by a school report and admissions by the mother.
- Asserted the child was exposed to unsafe environments, including domestic disputes and marijuana presence.
- Filed the motion as an emergency due to the unavailability of timely evidentiary hearings.
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) | Standard of review: abuse of discretion in custody modification. | The court applied the abuse of discretion standard to review the trial court’s order. |
| Kendall v. Kendall, 832 So.2d 878 (Fla. 4th DCA 2002) | Requirements for temporary custody modification: substantial change in condition and best interests of the child. | The court held that the father failed to establish these requirements. |
| Shaw v. Shaw, 696 So.2d 391 (Fla. 4th DCA 1997) | Extraordinary circumstances required for ex parte temporary custody without notice or hearing. | The court found no extraordinary circumstances justified the ex parte order. |
Court's Reasoning and Analysis
The court analyzed whether the trial court abused its discretion in granting exclusive temporary custody to the father on an ex parte basis. It emphasized that temporary custody modifications require a showing of a substantial change in circumstances and that the change serves the child's best interests. The court noted that only extraordinary circumstances warrant an ex parte order without notice and hearing.
The father admitted the emergency filing was due to the unavailability of a timely hearing, not a true emergency. The evidence submitted was largely unsubstantiated hearsay, and the mother's deposition testimony refuted many allegations. Therefore, the court concluded the evidence was insufficient to meet the legal standard for temporary custody modification and that the trial court erred in granting the ex parte injunction.
Holding and Implications
The court reversed the trial court’s order granting exclusive temporary custody to the father and remanded the case for further proceedings.
The direct effect is that the temporary custody order is vacated pending further hearings with proper notice and opportunity to be heard. The court set no new precedent beyond reaffirming existing standards for temporary custody modifications and ex parte orders.
MAY, J.
The mother appeals a trial court order entered on the father's verified ex parte motion for temporary injunction granting exclusive temporary custody of the minor child. She argues that the trial court abused its discretion in entering the order. We agree and reverse.
The father filed a motion for temporary custodial modification, and alleged that the mother had subjected the minor child to physical violence, making reference to a school report recounting the child's statement to a teaching assistant. He also alleged that the mother had previously admitted that she had been engaged in physical fights with her daughter, in the house, the car, and in public. He alleged that the mother was seen "rolling on the asphalt, wrestling and struggling with" the child at a soccer match. He also alleged that the child had been left alone with an infant and a four-year old child while in the custody of the mother's adult daughter, and that she had been exposed to domestic arguments between the adult daughter and her boyfriend. And lastly, he alleged that there was marijuana in the trailer home where the mother's adult daughter lived.
The trial court had previously entered an order prohibiting the mother from leaving the minor child in the custody of her adult daughter.
Initially, the trial court told the father that the motion to change custody required an evidentiary hearing and could not be considered during motion calendar. The court then advised him that the motion could be considered, and additional time would be allowed, if it was submitted as an emergency. Following that advice, the father resubmitted the pleading as a verified ex parte motion for temporary injunction granting exclusive custody of the minor child. He attached partial deposition transcripts of the mother and the adult daughter's boyfriend. The mother's transcript contained her explanation of the allegations forming the basis of the motion. The other deposition contained an admission about the marijuana by the adult daughter's boyfriend.
The trial court granted the motion on November 18, 2002, and awarded the father exclusive temporary custody of the child, pending an evidentiary hearing on December 9, 2002. The mother filed an emergency motion to stay the order, which the court denied. The mother filed this appeal and requested this court to stay the trial court's order. This court denied the stay. On December 9, 2002, only the father and the guardian ad litem appeared. The trial court decided not to conduct the evidentiary hearing because the November 18, 2002, order was on appeal to this court.
This court has reviewed the order under an abuse of discretion standard. Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995). To obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties; and (2) that the change in custody serves the best interests of the child. Kendall v. Kendall, 832 So.2d 878 (Fla. 4th DCA 2002). Only under extraordinary circumstances may a trial court grant a party temporary custody of a child without affording prior notice to the opposing party or an opportunity to be heard. Shaw v. Shaw, 696 So.2d 391 (Fla. 4th DCA 1997).
We agree with the mother that no true emergency existed in this case. The father concedes that the reason he filed for an emergency ex parte injunction was that the trial court had no other available time for an evidentiary hearing until after January, 2003, when a new judge would take over the presiding judge's caseload. The father's frustration with the court docket, however, does not transform his standard motion for modification of custody into an emergency.
There were no sworn affidavits or other forms of evidence to substantiate the father's allegations. The father relied instead on unsubstantiated hearsay. In fact, the mother's deposition testimony explained or refuted much of what the father alleged. This evidence was insufficient to establish a substantial change in the condition of either party or that the change in custody would serve the best interests of the child.
For these reasons, the order is reversed, and the case remanded for further proceedings. We will entertain no motions for rehearing and the clerk is directed to issue the mandate forthwith.
POLEN, C.J., and FARMER J., concur.
Alert