Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 04-16-2022
Case Style:
MARIA LUISA MASSA CISNEROS, vs CARLOS A. GUINAND, et al
Case Number: 3D21-1910
Judge: Bronwyn C. Miller
Court:
Third District Court of Appeal
State of Florida
On appeal from A Case of Original Jurisdiction -- Mandamus
Plaintiff's Attorney:
Defendant's Attorney:
RCC Family Law, and Richard J. Preira, and Kira Elise Willig
Description:
Miami, FL - Divorce lawyer represented Petitioner with seeking a writ of mandamus.
“The right of mandamus lies . . . where an inferior court refuses to take
jurisdiction when by law it ought to do so, or where, having obtained
jurisdiction, it refuses to proceed in its exercise.” Ex parte Parker, 131 U.S.
221, 226 (1889). “It does not lie,” however, “to correct alleged errors in the
exercise of . . . judicial discretion.” Id. The resolution of this case turns on
whether the trial court was divested of jurisdiction to reconsider and modify
the terms of the stipulated judgment.
We begin our analysis by observing that “[c]hild custody
determinations are ‘some of the most difficult and sensitive problems [that]
face the judiciary.’” Talarico v. Talarico, 305 So. 3d 601, 603 (Fla. 3d DCA
2020) (alteration in original) (quoting Waites v. Waites, 567 S.W.2d 326, 330
(Mo. 1978)). Such determinations are rarely static and often require
consideration of intervening changes in circumstances. To this end, a vast
5
body of decisional authority recognizes a trial court is vested with “jurisdiction
to modify its custody orders, which would include visitation privileges, until
such time as the minor children reach their majority.” Poliak v. Poliak, 235
So. 2d 512, 514 (Fla. 2d DCA 1970). Correspondingly, section 61.13(3),
Florida Statutes, authorizes the modification of a parenting plan and timesharing upon “a showing of a substantial, material, and unanticipated change
in circumstances.” Such determinations are made by evaluating “all of the
factors affecting the welfare and interests of the particular minor child and
the circumstances of the family.” Id.
Here, while couched in terms of a motion for reconsideration, the
mother sought a modification of the custody and parental responsibility
provisions embodied in the judgment and program referral order. Because
the motion facially alleged a substantial and unanticipated change in
circumstances, it comported with the relevant statutory and decisional
framework. Further, as is so often the case in custody proceedings,
regardless of the nomenclature employed by the parties, the stipulated
judgment clearly anticipates the expenditure of further judicial labor,
rendering it nonfinal. See, e.g., Kirkland v. Kirkland, 153 So. 3d 942 (Fla.
1st DCA 2014); Fowler v. Fowler, 166 So. 3d 188 (Fla. 1st DCA 2015); Freiha
v. Freiha, 169 So. 3d 1292 (Fla. 1st DCA 2015). This is evidenced through
6
both a conflict resolution provision, expressly permitting the parties to submit
any unresolved time-sharing matters to the court for resolution, and an
extraordinarily broad reservation of jurisdiction clause, allowing the court to
adjudicate a myriad of outstanding issues and order any other relief deemed
proper.
Accordingly, contrary to the ruling below, the trial court possesses
jurisdiction to consider the merits of the motion and the mother lacks any
other plain and adequate remedy at law. See Seigler v. Bell, 148 So. 3d
473, 479 (Fla. 5th DCA 2014). In closing, we are not unmindful mandamus
is an extraordinary remedy. Child custody determinations, however,
implicate rights of a constitutional dimension, and the law permits a complete
denial of parental rights only under the most extreme of circumstances.
Here, it is axiomatic the refusal to allow contact between the mother and her
children for well over two years, a time period nearly tenfold that bargained
for by the parties, warrants closer scrutiny.3
We grant the writ but, being
confident the trial court will promptly rule on the pending motion, withhold
issuance.
Outcome: Petition granted.
Plaintiff's Experts:
Defendant's Experts:
Comments: