Third District Court of Appeal
State of Florida
Opinion filed February 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-10
Lower Tribunal No. 09-27608
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Juan Allende,
Appellant,
vs.
Felicita Veloz,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Daryl E. Trawick, Judge.
Law Offices of Karim Batista, P.A., and Karim Batista, for appellant.
Felicita Veloz, in proper person.
Before SALTER, LINDSEY, and HENDON, JJ.
HENDON, J.
Juan O. Allende (“Father”) appeals from an order, which among other things,
denies his emergency motion for physical custody of his minor child (“Child”) and
to suspend the time-sharing of the Child’s mother, Felicita Veloz (“Mother”). For
the reasons that follow, we affirm.
The Mother and the Father divorced in 2010. Their final judgment of
dissolution of marriage incorporated a mediated settlement agreement, which
provides, in part, that they have shared parental responsibility pursuant to section
61.13 of the Florida Statutes; sets forth a time-sharing plan; and provides that “[a]ny
relocation of the Child is subject to and must be sought in compliance with section
61.13001, Florida Statutes.”
In November 2015, the Mother relocated to Orlando with the Child after
obtaining the Father’s oral consent. This oral agreement, however, did not comply
with section 61.13001, Florida Statutes (2015), which requires the relocating parent
to: (1) obtain a written and signed agreement from the non-relocating parent
consenting to the relocation, and thereafter, seek a court order ratifying the
agreement, § 61.13001(2); or (2) file a petition to relocate containing specific
information, which must be served on the non-relocating parent, and thereafter,
obtain permission to relocate from the court, § 61.13001(3).
In November 2017, while the Child was in the Father’s care for the
Thanksgiving holiday pursuant to the parties’ time-sharing plan, the Father filed an
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emergency motion, through counsel, alleging that based on his own observations
and/or information provided to him by the Child, the Child was malnourished, did
not maintain proper hygiene while in the Mother’s care, and was having nightmares
(“emergency motion”). In the emergency motion, the Father requested that the trial
court enter an order that: (1) grants the Father physical custody of the Child; (2)
suspends the Mother’s time-sharing; (3) appoints a guardian ad litem to investigate
the allegations in the emergency motion; and (4) refers the child to Family Court
Services for individual therapy.
On November 26, 2017, the Father failed to return the Child to the Mother as
scheduled. The following day, the Mother filed a verified emergency motion
seeking an order to pick up the Child (“emergency pick-up motion”).
On November 29, 2017, the trial court conducted a hearing on the Father’s
emergency motion and the Mother’s emergency pick-up motion. Following the
arguments of counsels, the trial court: (1) denied the Father’s motion for physical
custody of the Child; (2) denied the Father’s motion to suspend the Mother’s time-
sharing, but modified the parties’ time-sharing plan to address the transportation of
the Child; (3) granted the Father’s motion to appoint a guardian ad litem for the
purpose of investigating the allegations and making appropriate recommendations
to the trial court; (4) granted the Father’s motion for referral to Family Court
Services for the Child to begin individual therapy; and (5) denied the Mother’s
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emergency pick-up order.1 In making its rulings, the trial court stated as follows:
I do not want to reward in any way the mother’s violation of law. On
the other hand, I loathe to disrupt the child’s life by taking him out of
the school, the place where he has resided with the father’s
acquiescence, and bring him to Miami for an indefinite period of time
when we don’t know whether there is going to be a relocation hearing,
whether there’s going to be an agreement reached, et cetera.
The trial court specifically found that it was permitting the child to go back to
Orlando with the Mother “solely” because it was “the least disruptive means of
dealing with the child at this time and is in the best interest of the child.” The trial
court further stated: “I am specifically finding that this is not an oral granting [of] a
temporary relocation.” Prior to the completion of the hearing, the trial court obtained
a commitment from the Mother’s counsel that the Mother would be filing a petition
to relocate under section 61.13001 as soon as possible to bring this matter to a final
resolution. On December 1, 2017, the trial court entered a written order consistent
with its oral pronouncements, which states, in part: “This order shall not be
construed as an order retroactively granting temporary relocation of the child, as no
such petition or motion has ever been filed.”2
Two weeks after the hearing, the Mother, as promised, filed a petition to
1
At the hearing, the Child’s medical and school records were introduced. The
medical records do not reflect any concerns regarding the Child, and the school
records reflect that the Child is performing well in school.
2
The written order does not refer to the Mother’s oral commitment to file a petition
to relocate.
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relocate under section 61.13001. Thereafter, the Father timely appealed the
December 1, 2017 order.
The Father contends that the trial court’s decision to allow the Child to remain
with the Mother in Orlando pending final disposition amounts to a “temporary
relocation” of the Child under section 61.13001(6)(b), and that the trial court erred
by granting the “temporary relocation” because a “temporary relocation” cannot be
granted unless a petition to relocate has been filed.3 We disagree.
As stated above, the Mother relocated with the Child without a written
agreement of the parties or court approval, as required by sections 61.13001(2) and
(3). Section 61.13001(3)(e) sets forth the consequences for relocating a child
without complying with the statutory relocation procedures.4 Section
3
Although the Mother filed a petition to relocate two weeks later, at the time of the
hearing, there was no pending petition to relocate.
4
Section 61.13001(3)(e) provides:
Relocating the child without complying with the requirements of
this subsection subjects the party in violation to contempt and other
proceedings to compel the return of the child and may be taken into
account by the court in any initial or postjudgment action seeking a
determination or modification of the parenting plan or the access or
time-sharing schedule as:
1. A factor in making a determination regarding the relocation of
a child.
2. A factor in determining whether the parenting plan or the
access or time-sharing schedule should be modified.
3. A basis for ordering the temporary or permanent return of the
child.
4. Sufficient cause to order the parent or other person seeking to
5
61.13001(3)(e) provides that the failure to comply with the statutory relocation
procedures subjects the violating party to either (1) contempt proceedings, or (2)
other proceedings to compel the return of the child. Although section 61.13001(3)(e)
provides that the violating party is subject to these proceedings, the statute does not
mandate a specific result. Thus, the trial court’s determinations as to whether the
violating parent should be held in contempt or whether to compel the return of the
child are discretionary.5
Section 61.13001(6)(a) also addresses the relocation of a child without a
written agreement of the parties or court approval. Specifically, a court is
authorized, but not required, to enter a temporary order requiring “the return of the
child, if a relocation has previously taken place.” § 61.13001(6)(a) (providing that
“[t]he court may . . . order the return of the child, if a relocation has previously taken
place”) (emphasis added). Further, section 61.13001(6)(a)2. authorizes a court to
relocate the child to pay reasonable expenses and attorney’s fees
incurred by the party objecting to the relocation.
5. Sufficient cause for the award of reasonable attorney’s fees
and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child.
5
In addition to being subject to “contempt and other proceedings to compel the
return of the child,” section 61.13001(3)(e) also provides that the fact that a parent
relocated without complying with the relocation procedures “may be taken into
account by the court in any initial or postjudgment action seeking a determination or
modification of the parenting plan or access or time-sharing schedule[.]” (emphasis
added).
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“order other appropriate remedial relief, if the court finds: . . . 2. That the child has
been relocated without a written agreement of the parties or without court
approval[.]” (emphasis added).
In the instant case, as stated earlier, the trial court denied the Father’s motion
for physical custody of the Child and motion to suspend the Mother’s time-sharing,
but granted the Father’s motion to appoint a guardian ad litem and motion for referral
to Family Court Services. During the hearing, the trial court stated that it would
allow the Child to remain with the Mother in Orlando because it did not want to
disrupt the Child’s schooling and it was “the least disruptive means of dealing with
the child at this time and is in the best interest of the child.” The trial court’s order
further states: “This order shall not be construed as an order retroactively granting
temporary relocation of the child, as no such petition or motion has ever been filed.”
Thus, based on the trial court’s statements and the order under review, it appears that
the trial court was attempting to fashion “other appropriate remedial relief” as
permitted by section 61.13001(6)(a)2., and was not granting a temporary relocation
under section 61.13001(6)(b).
Section 61.13001(6)(b) provides that a trial court is permitted to grant a
“temporary order permitting the relocation pending final hearing” if the trial court
finds that the relocating parent has filed a proper petition to relocate under section
61.13001(3) and, following an evidentiary hearing, the trial court finds that there is
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a “likelihood that on final hearing” it “will approve the relocation of the child[.]”
Although the Father is correct that a trial court cannot grant a “temporary relocation”
under section 61.13001(6)(b) unless a petition to relocate has been filed, it appears
that the trial court recognized this—“This order shall not be construed as an order
retroactively granting temporary relocation of the child, as no such petition or
motion has ever been filed”—and instead may have been attempting to fashion
“other appropriate remedial relief” under section 61.13001(6)(a)2. Prior to the
conclusion of the hearing, the trial court recognized that removing the Child from
his school in Orlando would be disruptive; obtained a commitment from the Mother
that she would file a petition to relocate; acknowledged that the appointment of a
guardian ad litem was necessary to investigate the allegations in the Father’s
emergency motion; and in the interim, referred the Child to Family Court Services
for individual therapy.
In support of his argument, the Father cites to cases for the proposition that a
trial court cannot grant a “temporary relocation” unless the relocating parent has first
filed a proper petition to relocate under section 61.13001(3). However, those cases
are distinguishable because the “temporary relocation” was pursuant to section
61.13001(6)(b). For example, in Raulerson v. Wright, 60 So. 3d 487 (Fla. 1st DCA
2011), the mother verbally notified the father of her intent to relocate with the child.
In response, the father filed an emergency motion to enjoin the relocation.
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Raulerson, 60 So. 3d at 488. A few days later, the mother hand-delivered to the
father an unsworn “Notice of Intent to Relocate With Child,” but did not file the
notice with the court.
Id. The following day, the mother and child relocated.
Id.
On the same day of the relocation, the father served a notice of hearing on the mother
noticing the father’s emergency motion to enjoin.
Id. Prior to the scheduled hearing,
the father filed a motion for contempt and a motion for return of child to the father.
Id. However, the motion for contempt and motion for return of child were not
noticed for hearing.
Id.
At the scheduled hearing, the parties limited their testimony to the father’s
motion to enjoin and did not address whether relocation would be in the best interest
of the child. Id. However, at the hearing, the mother verbally requested permission
to relocate. In response, the father argued that the granting of a temporary relocation
would be improper because the mother had not complied with the requirements of
section 61.13001.
Id. The trial court granted the mother’s oral request to temporarily
relocate, stating that the mother had “substantially complied” with the requirements
of section 61.13001, and there was a likelihood that the relocation of the mother and
the child would be granted at the final hearing.
Id. at 488-89. The father’s appeal
followed.
The First District addressed whether the trial court properly granted the
mother’s oral motion to relocate under section 61.13001(6)(b), which provides as
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follows:
(6) Temporary order.—
....
(b) The court may grant a temporary order permitting the
relocation of the child pending final hearing, if the court finds:
1. That the petition to relocate was properly filed and is otherwise
in compliance with subsection (3); and
2. From an examination of the evidence presented at the
preliminary hearing, that there is a likelihood that on final hearing the
court will approve the relocation of the child, which findings must be
supported by the same factual basis as would be necessary to support
approving the relocation in a final judgment.
The First District reversed the portion of the order granting the mother’s oral motion
to relocate, concluding as follows:
The [m]other’s efforts in this case were inadequate because she failed
to comply with the threshold requirement of properly filing a sworn
petition [to relocate] with the trial court. See § 61.13001(6)(b)1.
Rather, she merely hand-delivered to the [f]ather an unsworn “Notice
of Intent to Relocate With Child” one day before relocating. The
[m]other did not file any form of documentation with the court, despite
the statute’s explicit directive to file a sworn petition. Thus, she failed
to comply with the statute and should not have been granted permission
to relocate.
Raulerson, 60 So. 3d at 490.
Raulerson is distinguishable from the instant case. In the instant case, it
appears that the trial court’s decision to allow the Child to remain with the Mother
was not pursuant to section 61.13001(6)(b). First, the Mother did not request that
the trial court grant a temporary motion to relocate under section 61.13001(6)(b).
Second, the trial court recognized that it could not grant a temporary relocation under
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section 61.13001(6)(b) because the Mother had not filed a petition to relocate—
“This order shall not be construed as an order retroactively granting temporary
relocation of the child, as no such petition or motion has ever been filed.”
In the instant case, it appears that the trial court was traveling under section
61.13001(6)(a)2., which provides, in part, as follows: “(6) The court may . . . order
other appropriate remedial relief, if the court finds: 2. That the child has been
relocated without a written agreement of the parties or without court approval[.]”
Thus, the Father’s reliance on Raulerson is misplaced.
In conclusion, sections 61.13001(3)(e) does not mandate that a child must be
returned to the non-violating parent when the other parent relocates without
following the requirements of section 61.13001. Thus, the trial court has certain
discretion in fashioning appropriate relief in such situations. In the instant case, the
trial court did not abuse its discretion in denying the Father’s emergency motion to
for physical custody of the Child and to suspend the Mother’s time-sharing. The
trial court recognized that (1) the Child relocated with the Father’s acquiescence two
years earlier; (2) requiring the Child to return to Miami would disrupt his schooling;
and (3) appointing a guardian ad litem was necessary to address the allegations in
the Father’s emergency petition. Further, although the allegations in the Father’s
emergency petition are serious, the trial court had before it the Child’s medical
records, which gave no indication that the Child was malnourished, and the Child’s
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school records, which indicates that he was doing well in school at the time of the
hearing. Finally, prior to the conclusion of the hearing, the trial court obtained a
commitment from the Mother that she would file a proper petition to relocate under
section 61.13001(3).6 Accordingly, we affirm the non-final order under review.
Affirmed.
6
The record before this Court indicates that the Mother filed her petition to relocate
prior to the Father filing his notice of appeal. Had the Father not appealed, the trial
court by now would have most likely made a final determination as to the Mother’s
petition to relocate.
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