author: GROSS, J. POLEN, J.,

text:
    Jay GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4432.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied Aug. 8, 2007.

      Carey Haughwout, Public Defender, Margaret Good-Earnest and Tatiana Bertsch, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Jay Gordon appeals a number of orders from an indirect criminal contempt proceeding arising from a family law case. We agree with Gordon on one issue — that in this unique case, the trial court erred in failing to appoint the public defender to represent him at a contempt hearing and at sentencing — and reverse for a new contempt hearing with appointed counsel. We reject his other attacks on the proceedings and affirm the circuit court on those matters.

At one time, Gordon was married to Elizabeth Savitt. As part of a contentious divorce proceeding, the circuit court entered a permanent domestic violence injunction directed at Gordon. See § 741.30, Fla. Stat. (2006).

On April 2, 2004, Savitt moved for an order to show cause why Gordon should not be held in indirect criminal contempt for willfully violating the injunction. Attached to the motion, Savitt’s affidavit cat-alogued instances of verbal abuse and threatening conduct including:

1) references to news reports of murders of one spouse by another, with the suggestion that a similar fate would befall Savitt;
2) telephone calls where ' Gordon screamed at Savitt in a “threatening ... verbally abusive, berating” manner;
3) an incident in the fall of 2003 at a children’s soccer game, where Gordon came behind Savitt and whispered, “You’re going to get it. I want my son back;”
4) incidents of intimidation during the exchange of the parties’ minor child; and
5) Gordon’s stalking of Savitt at a shopping center.

On April 22, 2004, after a hearing, Judge Berger entered an order to show cause why Gordon should not be held in indirect criminal contempt. The body of the order stated no facts constituting the alleged contempt, but incorporated and attached Savitt’s motion and affidavit. The order set an arraignment for May 12, 2004 and appointed Savitt’s attorney, Jonathan Root, as a prosecutor. Judge Berger then disqualified himself from the case, which was reassigned to Judge Colbath.

At the July 6, 2004 arraignment, Judge Colbath explained an arraignment to Gordon and invited him to make a statement. Gordon gave a rambling explanation of the factual and procedural history of the case. Then, Gordon handed the court his own affidavit, which the judge treated as a plea of not guilty.

Perfunctorily questioned by the court on the issue of his indigency, Gordon said he had a net worth of about $10,000, that he owned a car, and had $2,000 in retirement funds. The court found him not to be indigent for the purpose of appointing the piublie defender, but acknowledged that, at some point in the future, Gordon might qualify as indigent. Whether Gordon should be admitted to bond was not addressed at the hearing, so his status was tantamount to release on his own recognizance. See Fla. R.Crim. P. 3.840(c). On July 14, 2004, the court entered a written order summarizing its rulings at the July 6 arraignment.

On September 21, 2004, Gordon moved for a change of venue, among other things. The basis for the motion was that Savitt’s “boyfriend” and main witness in earlier proceedings, Martin Colin, had recently been elected a circuit judge in the Fifteenth Judicial Circuit.

On September 29, 2004, the court held a ■contempt hearing on the allegations in the order to show cause. Gordon renewed his request for the services of a public defender. The court again briefly inquired into Gordon’s financial condition. He claimed that he did not work and had liabilities that exceeded his limited assets. The court again found Gordon not to be indigent and also denied his motion for a change of venue.

In his opening statement, Gordon portrayed himself as a 61 year old “caring and loving, involved father who wants to play a meaningful role in [his] son’s life.” He blamed his predicament on Savitt’s desire to exclude him from his son’s life and on Colin, who had served as Savitt’s attorney during the divorce; he told the judge, “[u]ntil Martin Colin got a hold of me three years ago, I had not been involved with the police or any court in any way whatsoever. I’ve never even had a speeding ticket or a moving violation at any time in my. life. Now I stand before you facing criminal charges.” Because the opening statement strayed far from the contempt issue, Judge Colbath tried to get Gordon to focus on the purpose of the hearing.

Savitt’s attorney first called judge-elect Colin as a witness; he testified to numerous instances of Gordon’s conduct specified in the order to show cause. Savitt was the second witness. She authenticated six audio tapes of phone conversations between herself and Gordon. Using a log that she kept, Savitt described other incidents occurring after August, 2003. Gordon cross-examined the witnesses and offered evidence and testimony.

After closing arguments, the court found that Gordon had knowingly and willfully violated certain terms of the injunction and found him not guilty of violating other aspects of the order. The judge adjudicated Gordon to be guilty. The judge did not impose sentence. The court said:

Now with regard to an appropriate sentence, I don’t know what sentence I’m going to impose at this point. I’m going to have you remanded to the custody of the Palm Beach County Sheriffs Office right now. And I’m going to pass your case for about a week until I can figure out what I want to do with you.... At that time I’ll impose a sentence.

The court entered a written judgment of guilt and order of remand and set sentencing for October 5, 2004.

At the October 5 sentencing hearing, the judge heard from Savitt and judge-elect Colin. Colin testified about the effects of Gordon’s conduct upon Savitt and told the judge that the “only thing” that would “stop his arrogance” would be “to spend more time in the Palm Beach County jail.” Savitt told the judge about other incidents of threatening conduct. Savitt’s attorney asked the court to impose a sentence of two to three months incarceration followed by a year of probation, with the requirement that Gordon (1) seek treatment for anger management and other psychological treatment and (2) reimburse Savitt’s attorney’s fees. Gordon called his sister as a witness, who told the court that her brother’s genuine desire to father his son was frustrated by the restraining order Savitt obtained. Gordon explained that he had no desire to harm Savitt and that some of his communications with her had been a mistake. He contended that the picture of him painted by Colin and Savitt was “disconnected from reality.”

After hearing from both sides, the court discussed the case, pointing out that both Savitt and Gordon had engaged in conduct detrimental to their son. The court explained that he meant for Gordon “to spend the brief period of time in jail ... to try to shock [Gordon] into ... the rest of the world’s reality.” The court indicated that it would not impose a sentence at that time and reset sentencing for December 15, 2004; the court released Gordon from jail with the certain conditions, including that Gordon have the opportunity to see a psychiatrist or counselor or psychologist selected by “Savitt and.her attorney, Mr. Root”, with the implied understanding that the court would consider any visits to this counselor at sentencing. The court also indicated that it would evaluate Gordon’s conduct between October 5 and December 15 in imposing a sentence:

I’m going to take some testimony, as I did here, to find out what has happened during some time in October and going into December. So I want to know what you’re doing in the next two months.
If I find that there is any new misconduct, if there are any problems with visitation, I’m going to consider that in my final imposition of a sentence. And I will tell you this: if I believe with certainty that all of the allegations that are difficult to prove, if what they said truly happened and it very well might have been, but prove beyond a reasonable doubt that it did-a high hurdle to jump over, but if I were convinced with the same certainty as I was with the other matters, I will give you the whole six months in jail. But I am largely leaving your sentencing in your hands.
So I have a pretty good idea of what you have done. I know what additional things they think you’ve done, and I want to see how the next two months go. You tell me that there is never going to be another problem; I hope that is true. I hope the two of you can somehow try to figure out how to get along together.

The court’s written order indicated that Gordon was “released from PBSO A.S.A.P. O.R. — sentencing to be reset to 12/15/04 @ 9:30 AM.”

On December 15, 2004, Gordon appeared before the court for sentencing. Savitt told the judge that she had “endure[d] great difficulties from Mr. Gordon ... for almost three years.” She described incidents of Gordon’s misconduct that occurred after the October 5 hearing. On cross-examination of Savitt, Gordon established that he had never physically touched her during the three year period and that Savitt had sent him sarcastic and insulting emails. In a lengthy statement to the court, Gordon acknowledged that he was in “a very serious situation,” but he denied committing the acts of misconduct that Savitt described.

After hearing from both sides, the trial court said, “I’m going to find Mr. Gordon guilty of indirect criminal contempt in that he violated a prior court order.” As a sentence, the court placed Gordon on probation for one year, with the special condition of 30 days in the county jail on weekends, with credit for time already served, and regular counseling by a psychologist.

Gordon timely filed a notice of appeal and was admitted to appeal bond the following day. The public defender was appointed to represent him for the appeal.

Gordon contends that fundamental error occurred when Judge Berger’s order to show cause failed to state essential facts of the alleged contempt. Rule 3.840 requires that an indirect criminal contempt prosecution be commenced by an order to show cause “stating the essential facts constituting the criminal contempt charged.” In Giles v. Renew, 639 So.2d 701, 702 (Fla. 2d DCA 1994), we indicated that a defendant’s “due process rights will be protected if the order expressly incorporates and attaches the sworn petition to the order in place of setting forth the facts in the order.” Our reading of the order to show cause is that it incorporated and attached Savitt’s motion for contempt and supporting affidavit, so that no fundamental error occurred. We also reject the argument that a fundamental error occurred in Judge Colbath’s finding of contempt. Although the hearing could have been conducted in a different fashion, we cannot say that the evidence failed to support the court’s finding of contempt.

Gordon challenges the circuit court’s failure to appoint a public defender to represent him at trial. “Florida law requires a public defender to represent indigent defendants but a court ‘may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.’ ” Haughwout v. Mellor, 870 So.2d 895, 896 (Fla. 4th DCA 2004) (quoting § 27.51(2), Fla. Stat. (2003)). The trial court’s decision about whether to appoint a public defender is reviewed under an abuse of discretion standard. See Romani v. State, 429 So.2d 382 (Fla. 3d DCA 1983); Keur v. State, 160 So.2d 546, 549-50 (Fla. 2d DCA 1964). At the July 6, 2004 arraignment, Gordon admitted to having $12,000 in assets and a car. Previously, he had retained a lawyer in his divorce. Con-tempts arising out of family law cases often require a trial judge to carefully assess the credibility of insolvency claims. We find no abuse of discretion in the circuit court’s failure to appoint the public defender at the July 6 arraignment.

However, when Gordon requested appointed counsel at the September 29 contempt hearing, a different set of circumstances existed. Colin had been elected a circuit court judge earlier that month. One of the tests of indigency is that a “person is unable to pay for the services of an attorney without substantial hardship to his or her family.” § 27.52(2)(b)2, Fla. Stat. (2003). The determination of ability to pay includes an inquiry into the probable expense of defending the case. A likely effect of Colin’s election was to reduce the pool of attorneys who would accept a case opposing the girlfriend of a circuit judge elect or to increase the fee that might be commanded for such representation. As Gordon points out, this was a difficult case, requiring an attorney experienced in both family and criminal law, “not your typical misdemeanor case that a defense attorney might be willing to handle for around $1,000.” The case called for an experienced attorney willing to familiarize herself with the extensive prior history in the case. Savitt’s attorney, who was already conversant with the litigation, testified that $11,565 was his fee to prosecute the contempt. An attorney unfamiliar with the case would likely have demanded an even greater fee to defend Gordon.

The trial court never inquired as to Gordon’s efforts to hire an attorney and what fees attorneys quoted him. At no time did the court reset a status check for further inquiry on Gordon’s efforts to hire counsel. The only evidence in the case, which went unchallenged, was that Gordon was insolvent by the time of the September 29, 2004 contempt hearing. Two months later, the public defender was appointed to handle the appeal. Under these unique circumstances, we hold that the circuit court erred in failing to appoint the public defender prior to the September 29 contempt hearing.

We address other claims raised by Gordon because they might arise on remand.

We reject Gordon’s claim that he was entitled to a jury trial. “The denial of a request for a jury trial in a contempt proceeding limits the maximum term of imprisonment to six months on a finding of guilt.” Wells v. State, 654 So.2d 146, 147 (Fla. 3d DCA 1995). Even though Gordon’s sentence involved a one year probationary term, “his total maximum term of imprisonment would still be six months even on a probation violation.” Id.

Gordon complains that Judge Col-bath did not grant his motion to change venue from the Fifteenth Judicial Circuit despite Colin’s election as a circuit judge. Florida Rule of Criminal Procedure 3.240(a) provides that the ground for a change of venue is “that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge.” Especially in a circuit as large as the Fifteenth, the presence of a circuit judge-elect as a witness in a case does not mandate a change of venue. Gordon’s motion fell outside of the rule, because it was essentially a claim that all the judges in the circuit would be prejudiced because of Colin’s involvement in Savitt’s case. As a successor judge in the case, Judge Colbath correctly perceived that he was not subject to disqualification unless he ruled that he was “in fact not fair or impartial in the case.” Fla. R. Jud. Admin. 2.330(g); see § 38.10, Fla. Stat. (2005). We find no error in the denial of the motion to change venue.

Gordon contends that Judge Berger erred in his April 22, 2004 order by appointing Savitt’s attorney, Jonathan Root, as a special prosecutor to handle the indirect criminal contempt charge. He relies on Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In that case the Supreme Court held improper a district court’s appointment of attorneys who represented a trademark holder to prosecute a criminal contempt for violations of an injunction against trademark infringement. The Court observed that special criminal contempt prosecutors, like United States Attorneys, should have an undivided duty to see justice done. Id. at pp. 803-804, 107 S.Ct. 2124. The government’s interest in a “dispassionate assessT ment of the propriety of criminal charges for affronts to the Judiciary” is not necessarily congruent with the private client’s interest in the monetary benefits of enforcing the court’s injunction. Id. at 805, 107 S.Ct. 2124. The Vuitton Court concluded that because of the private attorneys’ .ethical duties to their own client, the conflict was unusually manifest: the Court wrote that while ordinarily “we can only speculate whether other interests are likely to influence an enforcement officer,” where a prosecutor also represents an interested private party, “the ethics of the legal profession require that an interest other than the Government’s be taken into account.” Id. at p. 807,107 S.Ct. 2124.

Vuitton was decided not on constitutional grounds but under the Supreme Court’s supervisory authority over the lower federal courts. Id. at 808-09, 107 S.Ct. 2124. Vuitton does not establish a due process test for prosecutorial conflicts in criminal contempt cases. Where the Supreme Court acts under its supervisory powers over the federal courts, its ruling is not binding on the states. See Scoggins v. State, 726 So.2d 762, 764-65 (Fla.1999).

Although Judge Colbath appointed attorney Root as a “prosecutor,” the effect of his order was to appoint Root to “assist” the court within the meaning of Rule 3.840(d) by calling witnesses at the contempt hearing. This was not a case where the court’s order bestowed on Root all the powers of a prosecutor.

Five factors lead to the conclusion that we should not apply Vuitton in this case involving enforcement of a domestic violence injunction.

First, to require the appointment of an independent prosecutor in all cases would nullify a remedy provided in the domestic violence statute. Section 741.30(9)(a), Florida Statutes (2006), contemplates enforcement in two distinct ways; either by the “state attorney” bringing a criminal prosecution under section 741.31, Florida Statutes (2006), or “through a civil or criminal contempt proceeding,” which may be commenced by one of the parties in the case. Section 741.31 sets forth the procedures to be followed for a state attorney initiated criminal prosecution, when a petitioner contacts the clerk of the circuit court and files an affidavit that an injunction has been violated. Had the statute intended to make the state attorney the sole gatekeeper for prosecuting section 741 injunction violations, it would not have designated section 741.31 as an alternative to a civil or criminal contempt proceeding.

Second, to apply Vuitton in this case would be to cause a sea change in Florida practice, which is to allow a party to a civil case to initiate and prosecute an indirect criminal contempt proceeding to enforce an order of the court. For example, this court recently affirmed a finding of indirect criminal contempt where the proceeding was initiated and prosecuted by the aggrieved party in a civil suit. See Lewis v. Nical of Palm Beach, Inc., 959 So.2d 745 (Fla. 4th DCA 2007); Feltner v. Columbia Pictures Television, Inc., 789 So.2d 453 (Fla. 4th DCA 2001) (in a case where indirect criminal contempt proceedings commenced by a party in a civil suit, court reversed for new trial because trial court did not allow defendant to make closing argument). The practice is common in dissolution of marriage proceedings. In Lascaibar v. Lascaibar, 773 So.2d 1236 n. 1 (Fla. 3d DCA 2000), the third district approvingly acknowledged the situation where “[cjounsel for the former wife acted as the prosecutor of the indirect criminal contempt.” In Mendana v. Mendana, 911 So.2d 130 (Fla. 3d DCA 2005), the third district affirmed a conviction of indirect criminal contempt in a post-dissolution proceeding commenced and prosecuted by the former wife.

Third, if one of the parties in a civil case may initiate a contempt enforcement proceeding, it follows that the judge may appoint the attorney of the moving party to “prosecute” the case, which is to call witnesses and present evidence at a contempt hearing. This scenario falls within the rule 3.840(d) provision that a judge may conduct a contempt hearing “without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose.” In Routh v. Routh, 565 So.2d 709 (Fla. 5th DCA 1990), the fifth district recognized that in a family law case the trial judge had the authority to appoint the former wife’s counsel to prosecute the former husband for criminal contempt under rule 3.840.

Fourth, rule 3.840 provides adequate procedural safeguards to protect against abuse of the contempt sanction. Rule 3.840 procedures “must be strictly followed before a person is found guilty of indirect criminal contempt.” Mix v. State, 827 So.2d 397, 399 (Fla. 2d DCA 2002). Precision is required at each stage of the contempt proceeding. On the judge’s own motion or an affidavit by a party seeking the order, the judge may issue an order to show cause stating “the essential facts constituting the criminal contempt” and specifying the time and place of the hearing. A judgment of guilty should include “a recital of the facts constituting the contempt.” Fla. R.Crim. P. 3.840. In a case arising out of a dissolution proceeding, the trial court has a wide array of sentencing alternatives to ensure future compliance with its order and to punish past transgressions.

Fifth, orders in family or domestic violence cases are different than the injunction at issue in Vuitton. The Vuitton order arose in a commercial trademark infringement case where a party with deep pockets secured the appointment of its attorneys to conduct a lengthy investigation and prosecution pertaining to counterfeit handbags. In such a case, the Supreme Court observed that criminal contempt proceedings “ ‘are between the public and the defendant, and are not a part of the original cause.’ ” Vuitton, 481 U.S. at 804, 107 S.Ct. 2124 (iquoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445, 31 S.Ct. 492, 55 L.Ed. 797 (1911)). The Court wrote that the appointment of a prosecutor is “solely to pursue the public interest in vindication of the court’s authority” so that a “private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.” Vuitton, 481 U.S. at 804, 107 S.Ct. 2124.

Although the public has an interest in an order entered in a family law or domestic violence case, this interest is far outweighed by the interest of the party seeking the enforcement or protection of the order. The public interest in the authority or dignity of a court is abstract; a litigant’s interest in receiving child support or being free from physical harm or harassment is real and immediate. For this reason, the law should not preclude such parties from using their own attorneys to prosecute indirect criminal contempts. To require the appointment of an independent prosecutor in all cases would inject delay and additional expense into proceedings where litigants are often of limited means. Although an indirect criminal contempt proceeding in a family law case is vitally important to the parties, such a case often has little interest to a professional prosecutor.

Two cases from other jurisdictions have considered Vuitton in the context of a family law case and concluded that it does not bar a party’s attorney from participating in a contempt hearing. See Green v. Green, 642 A.2d 1275 (D.C.1994); Wilson v. Wilson, 984 S.W.2d 898 (Tenn.1998).

In Green, the husband contended that “his due process rights were violated because the wife’s attorneys acted as the prosecuting attorneys during the intrafam-ily contempt proceedings.” 642 A.2d at 1276. Similar to this case, the trial court had entered a civil protective order and the wife, through counsel, moved to hold her husband in contempt for violating it. The trial judge denied the husband’s motion to disqualify the wife’s lawyer from “prosecuting” the criminal contempt. Id. at 1277. The court in Green affirmed and distinguished Vuitton as a commercial case “primarily concerned with the financial and tactical conflicts of interest presented by using [Vuitton’s] counsel to prosecute the criminal contempt charges.” Id. at 1279. The court observed that an intra-family case “does not present the potential for discovery abuses and financial conflicts of interest.” Id. at 1279-80.

Also, Green' relied on the local statutes and rules relating to the enforcement of civil protective orders, which are similar to the enforcement framework of section 741.30(9)(a), and concluded that those “provisions reflect a determination by the [legislative body] that the beneficiary of a [civil protective order] "should be permitted to enforce that order through an intrafamily contempt proceeding.” 642 A.2d at 1279.

Like Green, Wilson involved the enforcement of restraining orders issued by a court in a divorce action. The Tennessee supreme court held that neither “constitutional principle nor ethical standard automatically disqualifies the private attorney for the beneficiary of the order from prosecuting a contempt action for a violation of the order.” 984 S.W.2d at 899. In part, the court reasoned that since the trial judge, and not the private attorney, is the one to determine whether a contempt action may proceed, there is little risk that a “defendant’s liberty interest will be erroneously deprived” by allowing a litigant’s private attorney to prosecute a contempt. Id. at 903. Second, the court pointed to the “tremendous fiscal and administrative burdens” that would result from a rule barring a party’s attorney from prosecuting a criminal contempt in a family law case:

Contempt proceedings often arise in domestic relations cases in state courts. However, unlike the federal system, there is no fund in Tennessee from which to compensate private counsel appointed to prosecute civil contempt actions. It is unrealistic to expect district attorneys to prosecute contempt actions arising from alleged violations of civil court orders. District attorneys already have a heavy case load prosecuting violations of the general criminal laws. Were we to hold that due process precludes a litigant’s private attorney from prosecuting contempt proceedings, many citizens would be deprived of the benefits to which they already have been adjudged entitled by state courts and many state court orders would remain unenforced.

Id. at 903 (citation and footnotes omitted).

Wilson also concluded that the ethical concerns which bothered the Supreme Court in Vuitton were not present in a family law contempt action. “Contempt of court is intended to vindicate a court’s authority and to maintain the integrity of court orders.” Id. at 904. “In a contempt proceeding alleging a violation of a court order, ... the interest of the private litigant coincides with the interest of the court. The common goal is to force compliance with the court order.” Id. The procedural safeguards of the rules of criminal procedure “ameliorate concerns that a private attorney will improperly institute a contempt proceeding in contravention of the interests of justice.” Id. at 905. Criminal contempt proceedings in a family case are typically directed at offensive conduct, without the pecuniary aspect of the trademark infringement proceedings at issue in Vuitton.

We agree with the reasoning of Wilson and Green and decline to follow Gordon’s suggestion that we align with the contrary view taken in Rogowicz v. O’Connell, 147 N.H. 270, 786 A.2d 841 (2001).

Because we are remanding for a new contempt hearing with appointed counsel, we do not dwell at length on Gordon’s complaints about his sentence. We note that the time Gordon spent in jail from September 29, 2004 to October 5, 2004 was not a sentence that violates the rule that a defendant must serve his sentence in one stretch rather than in bits and pieces. See, e.g., Butler v. State, 548 So.2d 780 (Fla. 2d DCA 1989); Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980). Rather, after the court found Gordon guilty of criminal contempt, it exercised its discretion under Florida Rule of Criminal Procedure 3.550 to have him taken into custody. See Harbaugh v. Cochran, 688 So.2d 1020 (Fla. 4th DCA 1997). We agree that Gordon was entitled to the assistance of court appointed counsel at the sentencing hearings. Without deciding the issue, we note our concern with a sentencing proceeding that was based in part upon a defendant’s conduct occurring after a finding of guilt; at a minimum, as with the statements in a presentence investigation, a defendant should have notice of the conduct that will be brought to the attention of the court and a fair opportunity to dispute facts presented by individuals seeking to influence the sentencing judge. See Fla. R.Crim. P. 3.713 (pertaining to disclosure of contents of presentence investigation reports to the parties); see also Doty v. State, 884 So.2d 547, 550 (Fla. 4th DCA 2004) (where court wrote that the “victim’s testimony regarding appellant’s violation of another domestic violence injunction obtained by a different woman was the type of allegation that the court should not have permitted in evidence [at a sentencing hearing].”); Reese v. State, 639 So.2d 1067 (Fla. 4th DCA 1994) (holding that “unsubstantiated allegations of misconduct may not be considered by a trial judge at a criminal sentencing hearing and to do so violates fundamental due process.”).

Affirmed in part, reversed in part, and remanded.

WARNER, J., concurs.

POLEN, J., concurs in part and dissents in part with opinion.

POLEN, J.,

concurring in part and dissenting in part.

I agree with the majority’s reversal in this case, but dissent with its disposition of the issue of whether the former wife’s attorney was properly appointed to prosecute the charge of indirect criminal contempt. While the majority chooses to not apply the holding in Young v. United States ex rel. Vuitton et Fils S.A in a state family law proceeding, I find it relevant and applicable to this case. 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).

The holding in Young is based on the conclusion that the attorney for a private client that has a financial interest in .the outcome of the contempt proceedings should not be appointed as a special criminal contempt prosecutor, due to the concern that the attorney will not be as dispassionate as disinterested counsel. 481 U.S. at 803-04, 107 S.Ct. 2124. I believe this concern is entirely translatable to a family law case such as the one before us. Counsel in family law cases can become just as deeply involved as in cases involving greater financial matters.

While mindful of the majority’s concerns regarding the factual complexity of the instant case and its lack of interest to a professional prosecutor, I would posit the trial court should have first appointed or attempted to appoint counsel from the State Attorney’s office rather than bypassing this step entirely. If it became obvious that the State Attorney’s office was lacking in manpower or ability to take the case, this would be the proper point for the trial court to appoint the former wife’s attorney as a special prosecutor in the case. Therefore, I would reverse as well the trial court’s failure to attempt appointment of a neutral prosecutor.

      . Explaining his work history to the judge, Gordon said, "I've never worked. As a younger man, I owned four vegetarian restaurants. I’ve never had a job where I have worked for somebody else. I always, for the last 17 years or so, I managed my family’s money. First my mother and my own and my wife’s. I was always able to earn enough money doing that.... [Sjince the separation more than two years ago, I’ve tried trading in the market. The market has been bad. Between attorney’s fees, living expenses, child support, and bad stock market, my assets have dwindled to zero.”

      . For example, Gordon stated "I’m at the mercy of Ms. Savitt and Mr. Colin to say and do whatever they want. They've been doing it for three and a half years. None of the things they’ve ever predicted have ever come true ... You can spend one day, one minute with me and my child and you would see how completely preposterous these allegations are ... [I]n the tape recording you heard at the trial that you found me guilty of, those tape recordings had no threatening words in them. Yes I was angry. I said ... I want to be an equal parent to my child but I in no way threatened Ms. Savitt....”

      . Gordon filed no motion for statement of particulars. See Fla. R.Crim. P. 3.840(b).

      . We suspect that had an attorney been appointed for Gordon, see infra, the contempt proceeding would have had greater focus and direction.

      . Justice Blackmun, in a concurring opinion, wrote that “the practice — federal or state — of appointing an interested party's counsel to prosecute for criminal contempt is a violation of due process.” Vuitton, 481 U.S. at 814-15, 107 S.Ct. 2124 .(Blackmun, J., concurring).


source: Caselaw Access Project

author: PER CURIAM. ORFINGER, J.,

license: Public Domain

text:
    Sandra SHOAF and James Shoaf, etc., Appellants, v. Michael GEILING, D.O., Appellee.
    No. 5D05-3384.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Rehearing Denied July 18, 2007.

      Jay M. Levy, of Jay M. Levy, P.A., Miami, and John Elliott Leighton, Patricia M. Kennedy and Mark A. Sylvester, of Leesfield, Leighton & Partners, Miami, and John Fisher and Lora Dunlap of Fisher, Rushmer, Werenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Mark Hicks and Dinah S. Stein, of Hicks & Kneale, P.A., Miami, and Thomas Dukes, of McEwan, Martinez <& Dukes, Orlando, and Pierre J. Seacord of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Appellee.
   PER CURIAM.

Sandra and James Shoaf, individually and as next friends of their daughter, Raven Shoaf, (collectively referred to as “the Shoafs”), appeal an Order Granting Motion for New Trial in the underlying medical malpractice action. Although we are reluctant to have a three week trial retried, the trial court’s ruling on such a motion will not be disturbed in the absence of a clear showing of abuse of discretion. The trial judge is better positioned to fully comprehend the processes by which ultimate decisions are made by the jury. Appellate courts must defer to the superior vantage point of the trial judge. If reasonable judges could differ as to the propriety of the action, then the action is not unreasonable and hence no discretion is abused. We simply conclude there was no abuse of discretion by the trial court. Accordingly, we affirm.

In that our decision may result in another trial, we feel compelled to comment on several issues which surfaced during the trial in the hope that the trial court and the parties may avoid or better deal with them on retrial.

In closing argument, the Shoafs’ attorney played several portions of various witnesses’ videotaped deposition testimony. Although the content of most of the video clips was previously relayed to the jury in the form of impeachment, the video clips were not previously shown to the jury prior to closing argument. In addition, the content in one of the clips had not even been presented at all, as impeachment or otherwise. The trial court concluded that showing the jury this particular video clip resulted in prejudicial error and granted a new trial. We have concluded that the trial judge did not abuse his discretion in reaching this conclusion.

More broadly however, we believe that allowing a party to play any videotaped deposition testimony that has not previously been admitted into evidence in that form is error. At trial, the Shoafs’ attorney contended that showing video clips of deposition testimony used as impeachment “wouldn’t be any different than if we read it to them during the case and now we wanted to show it to them.” We disagree. Impeaching witnesses by reading their deposition testimony to them and later showing a videotape of their deposition testimony are two very different things. A videotape not only shows the testimony, but also the witness’s demean- or, tone of voice and body language. In essence, the Shoafs’ attorney was allowed to introduce for the first time in closing argument, substantive evidence in the form of videotaped deposition testimony. This procedure is improper. While counsel may comment on or read to the jury matter that forms part of the record at trial, counsel may not show the jury evidence which was not introduced at trial.

The trial court admitted Nurse Cloaninger’s alleged hearsay statement regarding when Mrs. Shoafs uterine rupture occurred. This hearsay testimony was improper and well could have resulted in a mistrial because it directly contradicted Dr. Geiling’s testimony that it was not possible for him to have diagnosed the uterine rupture in time to perform a Cesarean.

Another evidentiary issue requires comment. The Shoafs called several nurses to testify who had been in the delivery room during all or part of Raven’s birth. The nurses were permitted to testify about post-delivery conversations amongst themselves regarding concerns they had about the events that had happened during Raven’s delivery. This was improper, irrelevant, and much of it was hearsay. On retrial, such testimony should be omitted, except as may be appropriate for impeachment.

Finally, the jury awarded Mrs. Shoaf damages for pain and suffering and loss of earning capacity. It also awarded Mr. Shoaf damages for loss of consortium. There are two problems with these awards. First, the Shoafs’ attorney told the jury in his opening statement that the parents were not seeking any damages for themselves. We caution counsel that such comments may be construed as waiving such damages. Second, the damages for Mrs. Shoafs loss of earning capacity and Mr. Shoafs loss of consortium were not supported by competent, substantial evidence.

AFFIRMED.

PLEUS, C.J., and EVANDER, J., concur.

ORFINGER, J., concurs and concurs specially, with opinion.

ORFINGER, J.,

concurring and concurring specially.

I concur in the court’s opinion, but write separately to comment on the trial judge’s decision to allow counsel to play portions of video depositions to the jury during closing arguments. As this case demonstrates, the practice can be very dangerous when as here, the wrong material is shown to the jury. Further, the practice seems to run contrary to the premise that closing argument is an opportunity for counsel to comment on the evidence — it is not supposed to be an instant replay.


author: WELLS, J.

text:
    OCEAN-YACHTS, INC., a New Jersey Corporation, Appellant, v. FLORIDA YACHTS INTERNATIONAL, INC., a Florida Corporation, Appellee.
    No. 3D07-606.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.

      Segredo & Weisz and Michel Ociacovski Weisz and Samuel Cozzo, for appellant.
    John H. Ruiz, Miami, and Hector A. Pena, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, J.

Ocean Yachts, Inc., a New Jersey corporation, appeals from a non-final order denying its motion to dismiss Florida Yachts International, Inc.’s (“FYI”) complaint on improper venue grounds. The appealed order stayed the action and directed the parties to proceed to mediation in New Jersey. A subsequent order denying reconsideration concluded that should mediation fail to result in settlement, the matter would proceed in Miami-Dade County. Ocean Yachts maintains that the trial court’s rulings violate that portion of its contract with FYI governing venue. We agree and affirm that portion of the trial court’s orders mandating mediation but reverse that portion of the orders requiring continuation of the action in Miami-Dade County should mediation fail.

In August 2005, Ocean Yachts and FYI entered into an agreement under the terms of which FYI, a Miami-based company, was to serve as an exclusive dealer in a number of Southeast Florida counties for boats manufactured by New Jersey-based Ocean Yachts. That agreement, in pertinent part, provided that disputes between the parties were to be resolved first by non-binding mediation or arbitration to take place where the non-complaining party was located, to be followed by legal action in the place where the prevailing party in the non-binding mediation or arbitration is located if not resolved in nonbinding mediation/arbitration.

Several years into the operation of this agreement, FYI, without first proceeding to nonbinding mediation or arbitration, filed the instant action alleging breach of contract and seeking declaratory relief. Ocean Yachts sought to dismiss, arguing that FYI had failed to submit its dispute with Ocean Yachts to mediation or arbitration as agreed and that the action could not be maintained in this or any venue until this was accomplished.

The trial court denied the motion to dismiss and ordered the parties to mediate. On reconsideration, the trial court decided that because mediation had been ordered, the venue requirements stated in the parties’ agreement did not apply. This is because, as the trial court reasoned, the terms “mediation” and “arbitration” are mutually exclusive terms, with mediation, by definition being non-binding and arbitration, under the rules of the American Arbitration Association (AAA), being binding on the parties. Thus, according to the trial court, because mediation ends without declaring a winner, the “prevailing party” venue privilege provided by the agreement, does not apply. We cannot agree with this assessment for several reasons.

First, there is nothing that prevents agreement to non-binding arbitration even if conducted according to AAA rules. See generally 9 U.S.C. § 4 (allowing parties to an agreement to determine what claims may be arbitrated and how the proceeding will occur, providing: “[t]he court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement”); Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University, 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (observing that “parties are free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which the arbitration will be conducted”); see also United Auto. Ins. Co. v. Ortiz, 931 So.2d 1025, 1026 (Fla. 4th DCA 2006) (“Pursuant to section 44.103(2), Florida Statutes (2005), a court ‘may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.’ ”); Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 -261 (Fla. 4th DCA 1993) (“An arbitrator’s decision in nonbinding arbitration under section 44.103, Florida Statutes, may be ‘vacated’ without any grounds whatever, upon the simple expedient of timely filing a request or motion for trial de novo.”). Second, if, as the trial court found, arbitration necessarily was “binding” on these parties, there would be no need to bring suit much less to select venue, thereby making this provision which clearly addressed venue in the event of failed resolution, superfluous. This surely cannot be what the parties either had in mind or meant. Third, according to AAA rules, mediators are authorized to make “oral and written recommendations for settlement.” See AAA, Commercial Arbitration Rule M-10. We see no reason why these recommendations cannot either indicate, upon request, or be utilized to determine which of the parties prevailed, as the parties here agreed.

The parties to a contract may, of course, “include a provision that establishes venue in a particular forum in the event of a contract dispute. See Mercedes Homes, Inc. v. Osborne, 687 So.2d 840, 841 (Fla. 2d DCA 1996).” Management Computer Controls, Inc. v. Charles Perry Const., Inc., 743 So.2d 627, 630-31 (Fla. 1st DCA 1999). This general rule would include the procedures to be followed in making a determination of venue. Here, the parties established a procedure whereby, whether by mediation or arbitration, each would have the opportunity to argue its position before a neutral third person in an effort to resolve their dispute before going to court. Should that procedure fail to result in a resolution, venue for any subsequent litigation would rest in the venue of whichever party was determined or indicated by that neutral arbiter to have prevailed in either the arbitration or mediation proceeding.

Accordingly, we affirm that portion of the trial court’s ruling ordering mediation, we reverse that portion of the court’s ruling which, without necessity or justification, rewrote the parties’ agreement and approved venue in Miami-Dade County irrespective of which party prevailed. Affirmed in part, reversed in part, and remanded for further proceedings to be conducted as outlined herein.


author: MONACO, J. SAWAYA, J.,

text:
    Karen Michelle VITT, etc., Appellant, v. Nelson Robert RODRIGUEZ, Appellee.
    No. 5D06-1825.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.
    Douglas Bowdoin, of Douglas Bowdoin, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   MONACO, J.

The issue in this case is straight forward, yet curiously does not seem to have been previously addressed by the appellate courts of this state. The question posed is whether past due child support payments are to be applied first to interest that has accrued on the debt, or whether it is first to be applied to reduce the principal amount outstanding on delinquent child support payments. We conclude that it should first be applied to reduce the outstanding interest.

Briefly, the marriage of the parties was dissolved in 1989. The appellant, Karen Michelle Vitt, was awarded sole parental responsibility of the minor child that resulted from her marriage with the appel-lee, Nelson Robert Rodriguez. In the final judgment of dissolution Mr. Rodriguez was ordered during the minority of the child to pay $400 per month in child support for the first thirty months, and $600 per month thereafter. Mr. Rodriguez paid some support for a while, and then disappeared in 1990. He was eventually located in Tampa in 2008, at which point he was behind in his child support plus accrued interest in the amount of approximately $161,000.

Mr. Rodriguez began paying child support again in 2003 through the Clerk of the Circuit Court. The Clerk applied the payments first to current child support obligations of Mr. Rodriguez, and then to the principal amount due on past child support, rather than to interest on the delinquent support payments. The Clerk did so in accordance with a since withdrawn local administrative order which, though ambiguous, was construed to require application of payments sequentially to current child support, past child support, and finally to interest on the arrearages. Ms. Vitt did not object to the application of the payments in the first instance to her former husband’s current child support obligations. She did object, however, to the application of the remainder of each payment first to the principal amount of back child support, and then to interest. Because interest was not calculated on the accrued interest, it made a difference in the final analysis of approximately $30,000. See Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980), review denied, 399 So.2d 1144 (Fla.1981); Coggan v. Coggan, 183 So.2d 839 (Fla. 2d DCA), cert. denied, 188 So.2d 820 (Fla.1966).

Ms. Vitt brought this matter to the attention of the General Magistrate, who concluded that the Clerk was properly applying the payments as required by the administrative order. Ms. Vitt took exception to the conclusion of the General Magistrate, but the trial court again agreed with the methodology used by the Clerk, and rendered an order to that effect. Ms. Vitt appeals. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

The entitlement to interest in the child support context is well established in Florida law. Many cases have held that the spouse to whom child support is awarded is entitled to prejudgment interest for all arrearages from the date the child support is due until the date of the arrearage judgment, along with interest that accrues on the arrearage judgment itself. See, e.g., Lamar v. Lamar, 889 So.2d 983, 984 (Fla. 4th DCA 2004); Warner v. Warner, 692 So.2d 266, 270 (Fla. 5th DCA 1997); Matteo v. Matteo, 667 So.2d 1003, 1004 (Fla. 3d DCA 1996); Romans v. Romans, 611 So.2d 92 (Fla. 1st DCA 1992); Applegate v. Applegate, 566 So.2d 865, 866 (Fla. 1st DCA 1990); Melvin. The reason for this stems from the notion that unpaid child support becomes a “vested property right,” and is essentially recognized as a judgment by operation of law. See Dep’t of Health & Rehab. Servs. v. Atterberry, 578 So.2d 485, 486 (Fla. 5th DCA 1991). Indeed, in the present case the attorney for Mr. Rodriguez essentially conceded that interest on the missed child support payments was due.

Unfortunately, we can find no direct guidance in the statutes governing child support concerning how payments on ar-rearages are to be applied. We note that section 61.14(6), Florida Statutes (2006), relates that unpaid support payments that are required to be paid through a local depository or through the State Disbursement Unit are treated under certain circumstances as final judgments by operation of law; and subparagraph (6)(d) of that statute says that the depository “shall charge interest at the rate established in s. 55.03 on all judgments for support.” Section 55.03, of course defines that rate of interest to be charged on judgments. Still, we have nothing that specifically applies to the issue before us. Under these circumstances, we generally seek direction from the common law.

The common law rule associated with the partial payment of debts in the United States appears to have emanated from the United States Supreme Court’s decision in Story v. Livingston, 38 U.S.(13 Pet.) 359, 10 L.Ed. 200 (1839). There, the high court held essentially that in applying a payment on a debt, the interest due should first be satisfied, and the balance should then to be applied to diminish the principal. If the payment falls short of the interest due, then the balance of interest is not added to the principal, but should be set aside and extinguished by the next payment, if sufficient. This maxim, of course, would only be applied in the absence of a statutory, contractual or other requirement to the contrary. A decade later the Florida Supreme Court, citing to Story, adopted the same rule for application in Florida. See Hart v. Dorman, 2 Fla. 445 (Fla.1849). Since then the courts of Florida have generally adhered to the rule as enunciated in Story and Hart. See, e.g., Joyner v. Bernard, 153 Fla. 372, 14 So.2d 724, 725 (1943); Pearson v. Grice, 8 Fla. 214 (Fla.1858); Young Mfg., Inc. v. Brooks, 543 So.2d 388 (Fla. 3d DCA 1989).

In applying the common law rule to the case before us we conclude that the trial court erred in its ruling that Mr. Rodriguez’s past due payments would first be applied to principal, and then to interest. The payments made by Mr. Rodriguez must first be applied to the current child support installment due, then to accrued and outstanding interest on his delinquent child support obligations, and finally to the principal amount due on unpaid child support.

REVERSED and REMANDED for action consistent with this opinion.

PALMER, J., concurs.

SAWAYA, J., concurs in part, dissents in part, with opinion.

SAWAYA, J.,

concurring in part; dissenting in part.

I agree with the majority that the order allocating the arrearage payments to reduce the unpaid principal rather than the accrued interest should be reversed. However, I respectfully disagree with the majority’s adoption of a strict rule requiring past due child support payments be applied to accrued interest first. It is my view that the question of whether such payments should first be applied to principal or interest, or whether a percentage of the payments should be applied to each, is a matter that should be left to the sound discretion of the trial court. Accordingly, I would reverse and remand this case to the trial court to resolve this issue based on the exercise of its sound discretion.

This court has held that “the trial court has discretion in determining the manner in which arrearages will be repaid.... ” Dep’t of Revenue ex rel. Hall v. Hall, 699 So.2d 1036, 1038 (Fla. 5th DCA 1997). Other courts have adopted this rule, and it has long been part of our jurisprudence. See State, Dep’t of Health & Rehab. Servs. v. Alvarez, 629 So.2d 247, 248 (Fla. 3d DCA 1993); Puglia v. Puglia, 600 So.2d 484, 486 (Fla. 3d DCA 1992); Larger v. Diaz, 595 So.2d 1092, 1094 (Fla. 3d DCA 1992); Leone v. Weed, 474 So.2d 401 (Fla. 4th DCA 1985); Shellmyer v. Shellmyer, 418 So.2d 477, 478 (Fla. 4th DCA 1982); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Gottesman v. Gottesman, 220 So.2d 640 (Fla. 3d DCA 1969). Clearly, determining the manner in which arrearages will be repaid includes the task of designating whether the payments will be applied to the principal or to the interest, or whether a percentage should be applied to each.

One factor the trial court must consider in exercising its discretion is the parent’s ability to pay. Hall; Alvarez; Puglia. In some instances, for example, a parent may only have the ability to pay current obligations and a small portion of the arrear-age. To continue to have the arrearage payment applied to accrued interest so the delinquent principal amounts can continue to generate interest may cause the obligor to sink further into debt and create an obligation that he or she may never be able to fully pay. This is essentially what happened in McCready v. Jarvis-Fox, 779 So.2d 581 (Fla. 5th DCA 2001). There, a 1992 order established an arrearage amount of unpaid principal. The trial court determined the unpaid principal would not accrue interest. Approximately eight years later, the mother, during contempt proceedings, requested that the trial court award interest on the arrearage amount determined by the 1992 order. The trial court assented to this request and ordered that the arrearage payments made pursuant to the 1992 order be applied to reduce the accrued interest, thus increasing the unpaid principal by a substantial amount. This court reversed the subsequent order, emphasizing that the payment schedule included in the 1992 order was based on what the trial court found the father capable of paying and would take approximately nineteen years to complete. This court stated that “[i]f the court had intended that the legal rate of interest be added to the arrearage, the interest alone would have exceeded the $60 per month payment so that each month the father would have gone further into debt. This was not the intent of the 1992 court.” Id. at 581.

Noting that the trial court had relied on section 55.03, Florida Statutes, for the assessment of interest in the subsequent order, this court held in McCready that “[although the legislature by the above cited statute has determined that ‘judgments and decrees’ shall bear interest, this does not prohibit the trial court, in fashioning a remedy in a contempt proceeding in which an arrearage is established, to enter an order for periodic repayment of the arrear-age only.” Id. at 581-82. This court further stated, “Because we have now found that the 1992 court, if it determined that equity required it, had the authority in an enforcement proceeding in which a judgment was not sought to order periodic payments to bring the father into compliance without including interest, that issue has been resolved.” Id. at 582. Although the mother’s failure to appeal the 1992 order was a factor in this court’s decision to reverse the subsequent order requiring the paid arrearage amounts be applied to accrued interest, this court clearly recognized that a trial court has the equitable power to require arrearage payments be applied to reduce the unpaid principal as opposed to the accrued interest.

As a trial judge, I presided over cases in which a parent became incapable of making child support payments because of illness and another family member — usually a parent or sibling of the disabled parent — gratuitously made the child support payments and contributed to the arrearage payments. In these cases, the goal of the donors was to contribute to the child’s welfare and assist the disabled parent by reducing the principal amount of the ar-rearage. I know of no instance where the donor was willing to pay the interest and thereby allow the unpaid principal to continue to grow and generate more interest. Under the rule adopted by the majority, if the donor is denied his or her request to have the payments applied to reduce the unpaid principal, the donor may well refuse to continue making the interest payments. As the court stated in Department of Revenue v. Jackson, 846 So.2d 486, 491 (Fla.2003), “Payments actually made are, most assuredly, more important than mere paper judgments.” I believe that in such a circumstance, the trial court should have the discretion to order that the arrearage payment be applied to reduce the unpaid principal.

I recognize there may be instances where a parent deliberately evades his or her child support obligations despite the ability to pay the amount ordered. In such an instance, and the present case may certainly involve such a parent, the trial court should have discretion to order that all arrearage payments be directed to first satisfy accrued interest so that the unpaid principal amount may continue to accrue interest.

As the majority correctly observes, the Legislature has not directly addressed this issue. I believe the Legislature’s silence tells us that designation of arrearage payments to either past due principal or accrued interest is an equitable matter best left to the sound discretion of the trial court after consideration of the obligor’s ability to pay and other relevant factors. See, e.g., Coltea v. Coltea, 856 So.2d 1047 (Fla. 4th DCA 2003). As the court explained in Coltea, “Proceedings under chapter 61 are now recognized as primarily equitable in nature. When specific statutory rules are lacking, chapter 61 reposes discretion in the trial court to achieve the purposes and aims of the statutes.” Id. at 1053 (citing Rosen v. Rosen, 696 So.2d 697 (Fla.1997)). In fact, equitable considerations permeate the provisions of chapter 61. As the court observed in Rosen:

[Proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. See § 61.011, Fla. Stat. (1995) (“Proceedings under this chapter are in chancery.”). The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings. See, e.g., § 61.001, Fla. Stat. (1995). Thus, section 61.16 should be liberally — not restrictively — construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.

696 So.2d at 700; see also Alois v. Alois, 937 So.2d 171, 175 (Fla. 4th DCA 2006) (“Parents have a legal duty to provide financial support for their children. However, proceedings under chapter 61 are equitable in nature and thus are governed by basic rules of fairness. One of the most basic rules of fairness is that a court cannot order a parent to pay child support which that parent cannot afford to pay.”) (citations omitted). Hence, this court has repeatedly held that the standard of review appellate courts must generally apply to child support issues is abuse of discretion. Karimi v. Karimi, 867 So.2d 471, 473 (Fla. 5th DCA 2004) (“Perhaps the most important issues raised by this appeal concern child support. The standard of review for each of these issues is one of abuse of discretion.”); Thomas v. Thomas, 776 So.2d 1092 (Fla. 5th DCA 2001); see also Fla. Dep’t of Revenue ex rel. Kaiser v. Kaiser, 890 So.2d 364, 366-67 (Fla. 4th DCA 2004) (“The standard of review of a trial court’s order to decrease child support is abuse of discretion.”). Given the equitable nature of proceedings under chapter 61, which includes provisions governing child support awards, I do not believe that the strict rule of law adopted by the majority is either appropriate or necessary.

I conclude that whether arrearage payments should first be applied to accrued interest or to unpaid principal, or whether a percentage should be applied to each, is a matter of equity to be determined based on the trial judge’s discretion after consideration of all relevant facts and circumstances, including the ability of the obligor to pay. It should not be determined by judicial fiat that adopts a strict rule that binds the hands of equity and the trial court’s exercise of sound judicial discretion. Here, it appears that the trial court thought it was compelled by an administrative order that directed arrearage payments be first applied to unpaid principal. Accordingly, the trial court did not have the opportunity to exercise its discretion in determining how the arrearage payments made by the father should be allocated. I therefore agree that the order under review should be reversed and remanded, not to apply the rule adopted by the majority, but to allow the trial court, based on its sound discretion, the opportunity to determine how the payments should be applied.

      . The history of this principle is outlined in Ohio Sav. Bank & Trust Co. v. Willys Corp., 8 F.2d 463 (2d Cir.1925), which traces its common law origins to a period well before the Revolutionary War.


author: SILBERMAN, Judge.

text:
    Leslie Ann FREDMAN, n/k/a Leslie Ann Melton, Appellant, v. David Lynn FREDMAN, Appellee.
    No. 2D06-1674.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Robert M. Geller of Law Offices of Robert M. Geller and Associates, Tampa, for Appellee.
   SILBERMAN, Judge.

In this post dissolution proceeding, Leslie Ann Fredman, n/k/a Leslie Ann Melton (the Mother), appeals a final order denying her supplemental petition and prohibiting her from relocating with the parties’ two children to Texas. She contends that section 61.13(2)(d), Florida Statutes (2004), the parental relocation statute, is unconstitutional because it abridges her fundamental rights to privacy and travel and violates her right to equal protection of the law. She also contends that the trial court abused its discretion in denying her request to relocate to Texas. We affirm, holding that the statute is constitutional on its face and that the trial court did not abuse its discretion in denying her request to relocate.

The Mother and David Lynn Fredman (the Father) have two sons, born December 21, 1994, and December 22, 1997. The parties divorced in October of 2002, and the final judgment of dissolution of marriage incorporated the parties’ marital settlement agreement (MSA). The parties have shared parental responsibility, with the Mother being the primary residential parent and the Father having liberal visitation, specifically including a minimum of one night per week and every other weekend. The MSA and the final judgment do not contain a restriction on the Mother’s relocation with the children. At the time the parties entered into the MSA and provided for the specific visitation, the Mother had a relationship with Mike Melton, whom she later married.

The Mother and Mr. Melton met while he was working on a project in Florida for an extended time. Mr. Melton lives in Ponder, Texas, with his son, and he now works in Ponder. The Mother works in Hillsborough County, Florida, and lives with the parties’ two sons in a two-bedroom apartment in Brandon, Florida. On January 23, 2004, the Mother filed a supplemental petition seeking to modify the Father’s visitation because she would be marrying Mr. Melton and relocating with the children to Mr. Melton’s home in Ponder, Texas. Upon the Father’s motion for injunctive relief, the court entered a temporary injunction prohibiting the Mother from moving the children to Texas.

At the final hearing in November 2004, the Mother testified to the benefits of moving the children to the small community of Ponder, Texas, particularly Mr. Melton’s new 3000-square-foot home and the amenities at the nearby public school. The Mother testified that she earns $58,000 per year and has the possibility for advancement at her current Florida employment. The Mother testified that she planned to be a stay-at-home mom in Ponder, but if necessary she could .find comparable employment there. The only people her children know in Ponder are Mr. Melton and his son. The Mother has no family in Ponder; her family lives in Oklahoma, two and one-half hours away from Ponder.

Mr. Melton testified that he worked in the oil and gas industry as a right-of-way agent, that he earned $70,000 to $90,000 per . year, and'that he could not find employment in his field of work in Florida.

The Father testified that he works a night shift from 11:00 p.m. to 7:30 a.m., that he exercised visitation with his children on Tuesdays and every other weekend, and that when he did not exercise visitation it was due to his work schedule. Since the Mother filed the supplemental petition, he has increased the overnight visitation because his new wife is home while he is working at night. The Father picks the children up from school on the days he has visitation. He testified that he helps them with their homework and that he enjoys recreational activities with his sons, including bowling and fishing.

The Father has extended family in Hills-borough County, including his mother, grandmother, uncles, aunts, and cousins. The Father testified that the children have seen their grandmother at least once a week throughout their lives. The Father sees his family every weekend, and the children have frequent contact with them, enjoying “boating, fishing, swimming, and just hanging out as a family” at their grandmother’s home. The Father’s family is also involved in a bowling league in which the children and the Father participate, so that the children spend time with the- Father and his family on Tuesday nights. Furthermore, the Father testified that both the Father and the Mother attend the children’s bowling league on Saturdays.

On December 10, 2004, after a final hearing, the trial court rendered an order applying the factors in section 61.13(2)(d) regarding relocation and denying the Mother’s request for modification of visitation. On appeal, this court reversed and remanded for the trial court to use the proper legal standard set forth in section 61.13(2)(d)(4) regarding the proposed substitute visitation for the Father. See Fredman v. Fredman, 917 So.2d 1038 (Fla. 2d DCA 2006). On remand, the trial court reconsidered that factor, and in an order rendered March 24, 2006, found that the proposed visitation plan was “adequate to foster a continuing, meaningful relationship between the children and the Father” but found, considering all the factors, that the move was not in the children’s best interest. Thus, the trial court denied the Mother’s supplemental petition and her request to relocate. The Mother now appeals from the trial court’s March 2006 order.

I.CONSTITUTIONALITY OF RELOCATION STATUTE

Although the Mother did not raise the constitutionality of the relocation statute in the trial court, she challenges the facial constitutionality of the statute on the ground that application of the allegedly unconstitutional statute constitutes fundamental error which she can raise for the first time on appeal. See State v. Johnson, 616 So.2d 1, 3 (Fla.1993) (“A facial challenge to a statute’s constitutional validity may be raised for the first time on appeal only if the error is fundamental.”); B.C. v. Dep’t of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (recognizing that the facial unconstitutionality of a statute may be raised for the first time on appeal but that the unconstitutional application of a statute to a particular set of facts may not be raised for the first time on appeal). The constitutionality of the relocation statute appears to be a question of first impression in the State of Florida. We emphasize, however, that this opinion does not address the significantly amended version of the relocation statute in section 61.13001 but applies only to the version of the statute in section 61.13(2)(d).

Section 61.13(2)(d) provides as follows:

No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to remove the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. In making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:
1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child.

The constitutionality of a statute is reviewed de novo; however, a legislative enactment comes to the reviewing court with a presumption of constitutionality, and the reviewing court should, if possible, construe a statute in a manner resulting in a constitutional outcome. Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005).

When the legislature enacted section 61.13(2)(d), Florida Statutes, in 1997, it provided, “No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.” See Ch. 97-242, § 1, at 4436, Laws of Fla. That provision effectively overruled the Florida Supreme Court’s decisions in Mize v. Mize, 621 So.2d 417 (Fla.1993), and Russenberger v. Russenberger, 669 So.2d 1044 (Fla.1996), which provided that when a primary residential parent is seeking in good faith to relocate, there is a rebuttable presumption in favor of the request to relocate. See Russenberger, 669 So.2d at 1047. The Mother contends that this standard was one of constitutional dimension and that by removing the presumption in favor of relocation, the relocation statute “is a clear violation of numerous constitutionally protected rights.” Specifically, the Mother raises the right to privacy, the right to travel, and equal protection.

Right to Privacy

The mother contends that the relocation statute violates a primary residential parent’s right to privacy because it empowers the State to dictate where the primary residential parent may or may not live. See Art. I, § 23, Fla. Const, (providing “the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein”); Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998) (recognizing parent’s fundamental right to privacy in childrearing decisions and holding grandparent visitation statute unconstitutional). The argument regarding her fundamental right to privacy seems to be very similar to her argument regarding her fundamental right to travel because the privacy argument is based on her right to choose where she lives. Thus, the discussion on her right to travel will encompass her right to choose where she lives.

To the extent that the mother is arguing that she has a fundamental right as a parent to decide where her children live, she must recognize that the father shares the same fundamental right. The Von Eijf court stated that when a governmental regulation implicates a privacy interest, the State must establish “that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.” 720 So.2d at 514 (quoting Winfield v. Div. of Pari-Mutuel Wagering, Dept. of Bus. Regulation, 477 So.2d 544, 547 (Fla.1985)). In Winfield, however, the supreme court explained that “before the right of privacy is attached and the delineated standard applied, a reasonable expectation of privacy must exist.” 477 So.2d at 547. In City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla.1995), the court stated that the Florida right to privacy “is circumscribed and limited by the circumstances in which it is asserted.” The court determined that an applicant for a government job did not have a reasonable expectation of privacy in the disclosure on a job application of whether she was a smoker. Id. The court therefore determined that the circumstances did not implicate Florida’s right of privacy. Id.

Unlike Von Eijf, where a parent asserted his privacy right regarding childrearing decisions against third parties (the grandparents), here, the Mother asserts her right to make childrearing decisions against the Father. The final judgment of dissolution of marriage provides that the parties have shared parental responsibility as to the children and that the Mother is the primary residential parent. As primary residential parent, the Mother does not make all childrearing decisions. Rather, section 61.046(15) defines “shared parental responsibility” as “a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.” It is obvious that what school a child attends and in what state a child lives are major decisions affecting the child’s welfare.

Therefore, when the parties agree to shared parental responsibility in the marital settlement agreement and a court order provides for shared parental responsibility, we conclude that the Mother does not have a reasonable expectation of privacy to decide in what state her children live, with respect to the Father, although she would have a reasonable expectation of privacy as to a third party. Thus, in this particular circumstance, the Mother’s right to privacy is not implicated.

Right to Travel

The Mother contends that the relocation statute violates her fundamental right to travel by requiring her to obtain court permission to relocate to another state. The United States Supreme Court has “long ‘recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rales, or regulations which unreasonably burden or restrict this movement.’ ” Saenz v. Roe, 526 U.S. 489, 499, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (quoting Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)); see also State v. J.P., 907 So.2d 1101, 1112 (Fla.2004) (“The freedom to travel throughout the United States and the freedom of movement have been recognized as basic rights under the federal Constitution.”)

Here, the relocation statute does not prevent the Mother from relocating to another state, but it does restrict her in moving with the parties’ children to another state. In Shapiro, the Court recognized that “[i]f a law has ‘no other purpose * * * than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it (is) patently unconstitutional.’ ” 394 U.S. at 631, 89 S.Ct. 1322 (quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). In applying this concept to a relocation case, the New Mexico Supreme Court stated that “it makes no difference that the parent who wishes to relocate is not prohibited outright from doing so; a legal rule that operates to chill the exercise of the right, absent a sufficient state interest to do so, is as impermissible as one that bans exercise of the right altogether.” Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 306 (1991) (citing Shapiro, 394 U.S. at 631, 89 S.Ct. 1322). In In re Marriage of Ciesluk, 113 P.3d 135, 142 (Colo.2005), the Colorado Supreme Court, citing Jaramillo and Shapiro, determined that although the Colorado statute at issue “does not prohibit outright a majority time parent from relocating, it chills the exercise of that parent’s right to travel because, in seeking to relocate, that parent risks losing majority parent status with respect to the minor child.”

The Colorado Supreme Court in Ciesluk discussed the competing interests involved in a relocation by the “majority time parent” and the different approaches courts have taken on the subject. There, an amendment to a Colorado statute replaced a case law “presumption in favor of the majority time parent with a liberal fact-driven analysis.” Id. at 141. Like the present case, the mother in Ciesluk argued that by removing the presumption in favor of relocation, the amended statute “discourages her from relocating, and unconstitutionally infringes upon her right to travel.” Id. at 142.

Ciesluk recognized, however, that it is not only the relocating parent’s fundamental right to travel that is at stake. “In addition, a minority time parent has an equally important constitutional right to the care and control of the child.” Id. (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (reiterating the fundamental liberty interest that parents have “in the care, custody, and control of their children”)). Furthermore, intertwined with the parents’ competing rights is the concern for the best interests of the child. Ciesluk, 113 P.3d at 142. “Thus, relocation disputes present courts with a unique challenge: to promote the best interest of the child while affording protection equally between a majority time parent’s right to travel and a minority time parent’s right to parent.” Id.

The Ciesluk court considered and rejected the approach by the Wyoming Supreme Court in Watt v. Watt, 971 P.2d 608 (Wyo. 1999), that a custodial parent’s right to travel and to relocate the children is not to be denied unless there is a substantial and material change in circumstances and unless detriment to the child can be shown. Ciesluk, 113 P.3d at 143. We agree that this approach fails to take into consideration the other parent’s fundamental right to parent, and the Florida relocation statute’s fact-driven approach balances all interests, including the best interests of the child.

The Ciesluk court also considered and rejected the approach by the Minnesota court in LaChapelle v. Mitten, 607 N.W.2d 151 (Minn.Ct.App.2000), which determined that the deprivation of the right to travel was justified by a compelling state interest: the best interests of the child. Cies-luk, 113 P.3d at 144-45. Although this approach has some appeal because the best interests of the child generally is a paramount concern, the Florida Supreme Court has held, albeit in a different context, that the best interests of the child is not a compelling state interest. In Von Eiff, the supreme court held a grandparent visitation statute unconstitutional. 720 So.2d at 517. The court determined that the statute infringed on the parents’ right to privacy, which includes the right to make childrearing decisions. Id. at 513-14. To justify an intrusion on the right to privacy, the State had to demonstrate “that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.” Id. at 514 (quoting Winfield, 477 So.2d at 547). The court determined that the best interests of the child was not a compelling state interest; rather, “ ‘the State may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm,.’ Id. (citation omitted). The Von Eiff court noted that it did not intend to disrupt the best interest standard in other areas of family law. Id. at 514 n. 3.

Of course, Von Eiff is factually distinguishable in that the father and adoptive mother’s right to raise their child was pitted against the desire for visitation by third parties, the maternal grandparents. Here, the Mother and the Father have competing rights. The Colorado court in Ciesluk placed much emphasis on these competing rights, along with the State’s concern for the best interests of the child, and chose to adopt the New Mexico Supreme Court’s approach in Jaramillo. 113 P.3d at 146.

The Jaramillo court determined that in a joint custody situation, a parent wishing to relocate should not be burdened by an adverse presumption. 823 P.2d at 305. It also determined that the resisting parent should not be burdened with a presumption in the relocating parent’s favor, because the resisting parent has a fundamental liberty interest in parenting. Id. at 306. Instead, the court concluded that

neither parent will have the burden to show that relocation of the child with the removing parent will be in or contrary to the child’s best interests. Each party will have the burden to persuade the court that the new custody arrangement or parenting plan proposed by him or her should be adopted by the court, but that party’s failure to carry this burden will only mean that the court remains free to adopt the arrangement or plan that it determines best promotes the child’s interests.

Id. at 309.

The Ciesluk court determined that in applying the Colorado statute, a court is not to make a presumption in favor of or against relocation and that neither party has a burden of proof. Rather, “ ‘both parents share equally the burden of demonstrating how the child’s best interest will be served.’” 113 P.3d at 147 (quoting Jaramillo, 823 P.2d at 308). The court has the duty to consider and make findings on the twenty-one factors set out in the Colorado statute, with the focus on the child’s best interests. Id. at 147-48. Therefore, the Colorado court balanced the two competing fundamental rights, along with the child’s best interests, and determined that if neither party had a presumption or burden of proof, the rights were appropriately balanced and the child’s interests taken into account.

Here, the Florida relocation statute expressly states that there is no presumption in favor of or against relocation. Because the Father’s constitutional rights must also be considered, we reject the Mother’s argument that the lack of a presumption in favor of the Mother is unconstitutional. Further, section 61.13(2)(d) is silent as to the burden of proof. See Gerov v. Hotter, 731 So.2d 152, 153 (Fla. 4th DCA 1999); see also Bartolotta v. Bartolotta, 703 So.2d 1229, 1230 n. 1 (Fla. 4th DCA 1998) (“Although there is no longer any presumption favoring relocation, the burden of proof as to whether a relocation meets the statutory criteria is not addressed by the statute.”)

When a primary residential parent seeks to relocate a child, section 61.13(2)(d) requires the court to consider all the statutory factors without any presumptions in favor of either party. The factors address, among other things, the relocating parent’s quality of life, the other parent’s ability to maintain a meaningful relationship with the child, and the child’s best interests. See § 61.13(2)(d)(l), (4), (6). Thus, the relocation statute requires the court to consider the competing interests, with an appropriate focus on the parents’ rights, along with the best interest of the child. Therefore, the statute does not violate the Mother’s right to travel.

Equal Protection

The Mother contends that the relocation statute violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution because it discriminates against primary residential parents. She argues that primary residential parents must obtain permission to relocate, while secondary residential parents need not obtain permission to relocate from the area where their child resides. The Mother cites no equal protection cases in her argument.

An equal protection analysis is appropriate only if similarly situated individuals are treated differently. “Equal protection is not violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly.” Troy v. State, 948 So.2d 635, 645 (Fla.2006) (quoting Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000)). In a challenge to a Nevada relocation statute on equal protection grounds, the Nevada Supreme Court recognized that custodial and noncustodial parents are not similarly situated. Reel v. Harrison, 118 Nev. 881, 60 P.3d 480, 483 (2002). The court explained that if the noncustodial parent did not consent to the move, the Nevada statute required the custodial parent to obtain court permission to move with the child. The Nevada Supreme Court, quoting from its earlier opinion in Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268, 1270 (1991), noted the statute’s purpose was “ ‘to preserve the rights and familial relationship of the noncustodial parent with respect to his or her child.’ ” Reel, 60 P.3d at 483 (footnote omitted).

Here, the Mother, as the primary residential parent, must obtain permission to relocate with the children because relocation would affect the secondary residential parent’s fundamental right to parent and would limit the Father’s access to the children. However, if the Father chooses to relocate out of state, it does not deny the Mother access to her children. Thus, to the extent that a primary residential parent must seek court permission to relocate, the parties are not similarly situated; thus, the statute does not violate the Equal Protection Clause. Therefore, we conclude that the statute is constitutional on its face.

II. DENIAL OF REQUEST TO RELOCATE

The Mother contends that, in applying section 61.13(2)(d), the trial court abused its discretion in denying her relocation request on remand following the earlier appeal. The standard of review regarding a trial court’s order on relocation is abuse of discretion. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003). Competent, substantial evidence must support the trial court’s findings as to the factors in section 61.13(2)(d) that the trial court must consider in making its determination. See Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004); Botterbusch, 851 So.2d at 904. Here, the record reflects competent, substantial evidence to support the trial court’s findings, and we cannot say that the trial court abused its discretion in denying the Mother’s request to relocate to Texas.

In this court’s prior opinion in Fredman v. Fredman, 917 So.2d 1038, 1041 (Fla. 2d DCA 2006), we reversed and remanded for the trial court to again consider the mother’s proposed relocation under section 61.13(2)(d), with directions to use the proper standard as stated in section 61.13(2)(d)(4): “Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.”

In its new order, rendered on March 24, 2006, the trial court found that the Mother’s proposed substitute visitation schedule “would be adequate to foster a continuing, meaningful relationship between the children and the Father.” The trial court adopted the findings in its previous order rendered December 10, 2004, except paragraph 13, which had used the improper standard regarding substitute visitation. Although the court found that the substitute visitation would be adequate, the trial court again denied the relocation request. After considering the statutory factors discussed in the 2004 order and the visitation factor that it reconsidered under the proper standard, the court concluded

that relocation would not be in the best interest of the children, even though it may be in the best interest of the Former Wife and her new husband. The Court finds that the proposed relocation does not benefit the children inasmuch as there has not been a showing that the proposed relocation would improve the children’s school, family or even home life. See Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004).

In its findings, the court recognized that the family would live in a 3000-square-foot home in Texas and that the Mother currently lives in a two-bedroom apartment in Hillsborough County. On cross-examination, however, the Mother admitted that one could find a house in Hillsborough County, Florida, at a cost comparable to the cost of the home in Ponder. The Father also testified that there were homes available in his community in Brandon at a cost comparable to Mr. Melton’s home in Ponder.

With respect to schooling, the court found that although the Mother contended that the children would be in a better school in Texas, the Father testified that comparable public schools are available in Hillsborough and that the children were doing well in their present school. The Mother had testified to all the facilities that the children’s small private school in Brandon did not have, but she admitted on cross-examination that good public schools were available in Hillsborough County.

With respect to family life, the court recognized both parents’ involvement with the children’s sport activities. However, the court emphasized that the Father is actively involved with the children and that he and the children share a “passion for bowling.” The court also recognized that the children have frequent contact with the Father’s relatives in Hillsborough County, including the Father’s mother, grandmother, uncles, aunts, and cousins. The Mother has no family in Texas, and the court noted that Mr. Melton’s extended family does not reside in Ponder, Texas. In fact, it appears that the children know no one in Ponder other than their stepfather and stepbrother. This is in stark contrast to the excellent relationship that the children have with the Father’s family in Hillsbor-ough County.

The trial court recognized that the move would improve the home life for the Mother and her new husband. However, in Berrebbi, this court reversed an order that allowed relocation, stating that “[a]ny evidence regarding the benefits of relocation related to the Mother and her new husband” and that there was no evidence that relocation would be good for the child. 870 So.2d at 173. Here, the Mother believed that relocation would provide certain benefits for the children. However, the Father presented contrary evidence, as well as evidence reflecting that the children’s best interests would be served by allowing them to remain in Hillsborough County. Based on this record, we cannot say that the trial court abused its discretion in denying the Mother’s request to relocate with the children to Texas.

Affirmed.

WHATLEY and KELLY, JJ., Concur.

      . The legislature significantly amended the parental relocation statute and moved it to section 61.13001, effective October 1, 2006. See Ch.2006-245, §§ 2, 4, at 2017-22, Laws of Fla. The parties did not mention the new ■ statute in their briefs, and the trial court’s orders were entered prior to the amendment, pursuant to section 61.13(2)(d). Thus, this opinion does not address section 61.13001.


text:
    In re Thomas G. McHUGH.
    No. 2007-B-1337.
    Supreme Court of Louisiana.
    July 3, 2007.
   In re McHugh, Thomas G,; Disciplinary Counsel; — Plaintiff(s); Applying for Joint Petition for Interim Suspension Pursuant to Rule XIX, § 19.3.

ORDER

Considering the Joint Petition for Interim Suspension filed by the respondent, Thomas G. McHugh, and the Office of Disciplinary Counsel,

IT IS ORDERED that Thomas G. McHugh, Louisiana Bar Roll number 24551, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    Christopher BRISCO, et ux v. Frederick BOUDREAUX, et al.
    No. 2007-CC-1392.
    Supreme Court of Louisiana.
    July 7, 2007.
   In re Brisco, Lorita; Brisco, Christopher et ux.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, Nos. 2006-2887; to the Court of Appeal, Third Circuit, No. CW 07-00829.

|! Denying writ.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant and assigns reasons.

KNOLL, J.,

would grant. I would grant a motion for continuance, and in absence of a continuance I would reverse the trial court’s ruling disallowing the testimony of Dr. Leoni and allow him to testify.

JOHNSON, J., would grant.

11 Most Jurisdictions require that lawyers certify in the motion to set for trial that all discovery had been completed, and the matter is ready for trial.


text:
    William G. ADAMSON v. Jack M. BAILEY, Jr.
    No. 2007-CC-1060.
    Supreme Court of Louisiana.
    July 11, 2007.
   ORDER

Considering the Motion to Dismiss filed jointly by the plaintiff and the defendant,

IT IS ORDERED that the motion to dismiss be and hereby is granted.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    In re Robert F. DeJEAN.
    No. 2007-B-1523.
    Supreme Court of Louisiana.
    July 19, 2007.
   In re Disciplinary Counsel; — Applying for Petition for Interim Suspension for Threat of Harm Pursuant to Rule XIX, § 19.2.

ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Robert F. DeJean, Jr., Louisiana Bar Roll number 4819, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the pending investigative matters numbered 21253, 22361, and 22601 be the proceedings bearing the disciplinary board’s docket number 03-DB-043 and 05-DB-063. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Corey HOLDER & Jerrod Johnson.
    No. 2007-KK-1576.
    Supreme Court of Louisiana.
    July 27, 2007.
   In re Holder, Corey et al.; Johnson, Jerrod; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 240,612; to the Court of Appeal, Second Circuit, No. 42829-KW.

Writ Granted. The Court of Appeal erred in overturning the decision of the district court and concluding that Lieutenant Azlin has the expertise to offer an opinion in scarring related to dog bites. The district court’s conclusion that the Lieutenant is not qualified to render an expert opinion in scarring from a dog bite has support in the record and is not, on the record before us, an abuse of discretion. The Court of Appeal’s ruling is reversed and the district court’s ruling is reinstated. Nothing in this ruling prevents the presentation of factual evidence related to the scar.

TRAYLOR, J., would deny the writ.


text:
    Edward URSIN v. NEW ORLEANS AVIATION BOARD and City of New Orleans In re Class Counsel v. RMGC Properties, L.L.C.
    No. 2007-CC-1525.
    Supreme Court of Louisiana.
    July 27, 2007.
   In re RMGC Properties L.L.C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 243-595; to the Court of Appeal, Fifth Circuit, No. 07-C-497.

Stay denied. Writ denied.


text:
    Michael O. CRAIG v. Tobie Young CRAIG.
    No. 2007-CJ-1349.
    Supreme Court of Louisiana.
    July 27, 2007.
   In re Craig, Michael O.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 101,992-A; to the Court of Appeal, Second Circuit, No. 42,-363-CA.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.

TRAYLOR, J., would grant and reinstate trial court judgment.


text:
    STATE of Louisiana v. Corey HOLDER & Jerrod Johnson.
    No. 2007-KK-1575.
    Supreme Court of Louisiana.
    July 27, 2007.
   In re Holder, Corey et al.; Johnson, Jerrod; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 240,612; to the Court of Appeal, Second Circuit, No. 42829-KW.

Denied.


author: KIMBALL, J.,

text:
    Mabel PINO, Curatrix of Sharon E. Pino and Tutrix of Amber Babin v. Timothy F. TOWNSEND.
    No. 2007-CC-1581.
    Supreme Court of Louisiana.
    July 30, 2007.
   In re Pino, Mabel Curatrix Sharon E. Pino; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 555,873; to the Court of Appeal, First Circuit, No. 2007 CW 1371.

Granted. Considering the affidavit of Sharon’s health care provider, we find the trial court abused its discretion in requiring Sharon to testify at the hearing. The matter is remanded to the trial court to determine if there are alternatives to requiring Sharon to testify at the hearing which will not adversely affect her treatment.

KIMBALL, J.,

concurs. While I agree the trial court abused its discretion by requiring Sharon to testify, I disagree any alternative is necessary or appropriate, considering Sharon’s status as an interdict and the health care provider’s affidavit stating Sharon will not be able to provide meaningful testimony.


text:
    STATE of Louisiana v. Anthony BELL.
    No. 2007-KK-1124.
    Supreme Court of Louisiana.
    July 30, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Rehearing of this Court’s Per Curiam dated June 29, 2007; Parish of East Baton Rouge, 19th Judicial District Court Div. A, No. 05-06-0751; to the Court of Appeal, First Circuit, No. 07-KW-0580.

Rehearing denied.