Davis v. Lopez-Davis
162 So. 3d 19
| Fla. Dist. Ct. App. | 2014Background
- Wife filed for dissolution, sought primary residential custody and asked that husband have supervised visitation due to concerns about abuse; husband filed a counterpetition seeking primary custody.
- At a magistrate hearing wife testified husband had not lived in Florida for over five years and did not know the child’s school, activities, or medical history; the husband did not appear.
- Magistrate recommended denying the husband any timesharing, finding the parties did not know each other and visitation was inappropriate.
- Trial court adopted the magistrate’s recommendation and entered an amended final judgment denying the husband all timesharing.
- Husband appealed, arguing the complete denial was unsupported by the evidence, created a catch-22, and exceeded relief requested by wife.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denying husband all timesharing was proper | Wife sought primary custody and supervised visitation (argued husband should be restricted) | Husband argued denial was unnecessary, no evidence it would harm the child | Reversed: court abused discretion; denial unsupported and disfavored absent necessity to protect child |
| Whether absence/ lack of relationship justified total denial | Wife emphasized husband’s long absence and that child didn’t know him | Husband said absence/lack of relationship alone doesn’t show detriment | Held absence alone insufficient to show harm from visitation |
| Whether judgment must specify steps to reestablish timesharing if denied | Implicitly, wife argued restrictions appropriate now | Husband argued order must provide clear steps to reconnect | Court held if visitation is restricted, order must set specific steps to reestablish time-sharing (avoid catch-22) |
| Whether court may grant relief not requested in pleadings | Wife did not request complete denial of timesharing | Husband argued court exceeded requested relief by denying all timesharing | Court held denying all timesharing awarded relief not requested and was erroneous |
Key Cases Cited
- Culbertson v. Culbertson, 90 So.3d 355 (Fla. 4th DCA 2012) (time-sharing determinations reviewed for abuse of discretion; restrictions disfavored)
- Grigsby v. Grigsby, 39 So.3d 453 (Fla. 2d DCA 2010) (when visitation is restricted, court must specify steps to reestablish time-sharing)
- Yandell v. Yandell, 39 So.2d 554 (Fla. 1949) (visitation privilege should not be denied so long as parent’s conduct won’t harm child)
- Schutz v. Schutz, 581 So.2d 1290 (Fla. 1991) (parents have constitutionally protected right to meaningful relationship with children)
- Escobar v. Escobar, 76 So.3d 958 (Fla. 4th DCA 2011) (courts may not grant relief not requested in the pleadings)
- Schram v. Schram, 932 So.2d 245 (Fla. 4th DCA 2005) (restrictions on visitation are generally disfavored)