text:
    Craig KRAUSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4086.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.

      Stephen J. -Finta of Law Offices of Stephen J. Finta, P.A., Fort Lauderdale, Special Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The issue presented in this case is whether the trial court committed fundamental error by instructing the jury that voluntary intoxication was not a defense, even though at the date of the commission of the crime, voluntary intoxication was still a viable defense. Although the trial court incorrectly instructed the jury on the law, we find the error was not fundamental error and does not compel a reversal.

Craig Krause resided with the victim and her son. Krause and the victim argued frequently, and Krause threatened to kill the victim several months before she was murdered. On August 21, 1999, a neighbor heard Krause and the victim arguing and then saw Krause sitting outside the house crying. Krause had a bottle in his hand at the time.

About an hour later, the same neighbor was awakened to the sound of his mother yelling about a fire. The victim was found in the charred residence with fourteen stab wounds, which included defensive wounds and a stab wound to the left side of her head. The victim died due to multiple sharp force injuries.

Krause was found a little over one mile from the victim’s residence. Krause admitted to law enforcement that he killed the victim and set her residence on fire.

During the trial, the jury was permitted to submit written questions to the witnesses. One juror submitted this question: “During the investigation of Mr. Krause was there ever any indication, or was he ever tested for being intoxicated?” The trial court determined that the question could not be asked because intoxication was not a legal defense. Neither side objected to the trial court’s ruling.

After the testimony of another witness, a nurse who treated Krause in the emergency room, a juror asked, “[D]id the patient appear to be intoxicated?” Another juror similarly asked, “Did Mr. Krause appear to be intoxicated or show signs of intoxication?” The trial court again noted that voluntary intoxication was not a defense, except this time the State noted that an instruction on voluntary intoxication needed to be given.

During the jury charge conference, the State requested, as a result of all the questions from the jury, a jury instruction stating that voluntary intoxication was not a defense in this case. Krause’s counsel objected without explanation, simply stating: “Judge, for the record we object to the voluntary intoxication instruction.” The trial court overruled Krause’s objection.

During closing argument, the State mentioned on several occasions that voluntary intoxication is not a defense. Krause made no mention of voluntary intoxication in closing argument; rather he argued the lack of evidence linking him to the crime and the possibility that another person may have committed the crime.

During jury deliberations, the trial court announced to the parties that it had conducted further research and realized that the defense of voluntary intoxication was repealed on October 1, 1999. Since the crime took place on August 21, 1999, Krause was, in fact, entitled to the affirmative jury instruction of voluntary intoxication as a viable defense.

The State suggested that the jury be reinstructed on the correct law, but Krause objected to reading the jury instruction on voluntary intoxication, stating that it would be unfair to read a new instruction in the middle of the jury’s deliberations. Krause’s counsel believed the instruction was unnecessary, and further, that voluntary intoxication was not part of Krause’s defense strategy. Significantly, Krause personally agreed on the record with his counsel on this matter:

COURT: So you think I should not instruct them on voluntary intoxication?
DEFENDANT: Right, I stick with my lawyer on this.
COURT: Okay. So you agree with Mr. Fein on one thing?
DEFENDANT: Finally.

“Generally speaking, the standard of review for jury instructions is abuse of discretion,” but that “discretion, as with any issue of law is strictly limited by case law.” Lewis v. State, 22 So.3d 758, 758 (Fla. 4th DCA 2009) (alteration omitted) (citation omitted). Any objection to a jury instruction must be specific, and a general objection to a jury instruction will not be sufficient to preserve the issue for appeal. Tolbert v. State, 679 So.2d 816, 818 (Fla. 4th DCA 1996).

Since there was no specific objection during the jury charge conference, we must review to determine if the error was fundamental error. Fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010) (quoting Lawrence v. State, 831 So.2d 121, 137 (Fla. 2002)). An erroneous instruction constitutes fundamental error if it negates the defendant’s sole defense. Wagner v. State, 88 So.3d 250 (Fla. 4th DCA 2012); Brown v. State, 59 So.3d 1217,1219 (Fla. 4th DCA 2011). We find that the incorrect jury instruction given by the trial court did not constitute fundamental error, as it did not negate appellant’s sole defense. Appellant’s defense centered entirely on the lack of evidence and on the possibility of another perpetrator committing the crime. Appellant never mentioned or relied on the voluntary intoxication defense.

Finally, we find that Krause also waived any error emanating from the erroneous jury instruction by agreeing not to instruct the jury with the proper instruction. “[F]undamental error can be waived when defense counsel requests an erroneous instruction, see Armstrong v. State, 579 So.2d 734, 735 (Fla.1991), or affirmatively agrees to an improper instruction, see State v. Lucas, 645 So.2d 425, 427 (Fla.1994).” Falwell v. State, 88 So.3d 970 (Fla. 5th DCA 2012). When given the opportunity to instruct the jury with the correct jury instruction, Krause declined. Krause reiterated that his defense theory was that he did not commit the crime and did not raise the voluntary intoxication defense at all. The trial court did not instruct the jury on the correct instruction pursuant to Krause’s request. By refusing the curative instruction, Krause waived any error.

Affirmed.

WARNER, STEVENSON and CONNER, JJ., concur.


source: Caselaw Access Project

author: MAHL, J.F., Associate Judge.

license: Public Domain

text:
    KINGS RIDGE COMMUNITY ASSOCIATION, INC., Appellant, v. SAGAMORE INSURANCE COMPANY, Appellee.
    No. 5D11-1051.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    Rehearing En Banc Denied Aug. 8, 2012.

      Robyn Marie Severs and Patrick C. Howell of Taylor & Carls, P.A., Palm Coast, for Appellant.
    Jennifer J. Kennedy and Scot E. Samis of Traub Lieberman Straus & Shrewsber-ry LLP, St. Petersburg, for Appellee.
   MAHL, J.F., Associate Judge.

Kings Ridge Community Association, Inc. (“the Association”), appeals a final summary judgment in favor of its insurer, Sagamore Insurance Company. The trial court concluded that the Association’s damaged clubhouse was not in a state of “collapse,” as that term is defined by the insurance policy issued by Sagamore, and thus the loss was not covered. We respectfully disagree and accordingly reverse the final judgment.

The Association owns and maintains the common areas, including the clubhouse, of a Lake County community known as “Kings Ridge.” On the morning of February 24, 2010, the exterior doors of the west wing of the clubhouse began to shake and the drop ceiling and soffits deflected downward. The flat roof above the deflected ceiling revealed a substantial depression adjacent to the westernmost HVAC unit. The drop ceiling in the northwest corner of the west wing of the clubhouse structure was significantly deflected downward. The first eleven roof trusses adjacent to the west face mansard roof section had deflected approximately twelve inches at midspan.

The clubhouse was insured under an all-risks business owner’s policy issued by Sagamore. The policy provides that the insurer will pay for direct physical loss of, or damage to, the subject premises caused by or resulting from any “Covered Cause of Loss.” A “covered cause of loss” includes:

5.d. Collapse
(1) With respect to buildings:
(a) Collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose;
(b) A building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse;
(c) A part of a building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building;
(d) A building that is standing or any part of a building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.
(2)We will pay for direct physical loss or damage to Covered Property, caused by collapse of a building or any part of a building that is insured under this policy, if the collapse is caused by one or more of the following:
(d) Weight of people or personal property;
(e) Weight of rain that collects on a roof;
(f) Use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the course of the construction, remodeling or renovation. However, if the collapse occurs after construction, remodeling or renovation is complete and is caused in part by a cause of loss listed in Paragraphs (a) through (e), we will pay for the loss or damage even if use of defective material or methods in construction, remodeling or renovation, contributes to the collapse.

The policy also provided for the following exclusion:

B.2. We will not pay for loss or damage caused by or resulting from any of the following:
i. Collapse
Collapse, except as provided in the Additional Coverage for Collapse. But if collapse results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.

3. We will not pay for loss or damage caused by or resulting from any of the following Paragraphs a. through c. But if an excluded cause of loss that is listed in Paragraphs a. through c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
c. Negligent Work
Faulty, inadequate or defective:
(1) Planning, zoning, development, surveying, siting;
(2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
(3) Materials used in repair, construction, renovation or remodeling; or
(4) Maintenance;
of part or all of any property on or off the described premises.

Following the event, each party hired expert engineers to inspect the property, investigate the cause of the damage, and issue reports. The parties agree that the findings and conclusions of both parties’ engineers are virtually identical. The engineers found that the first eleven roof trusses in the western area of the west wing of the clubhouse failed, deflecting approximately twelve inches at midspan. As a result, the roof above the trusses depressed twelve inches and the ceiling below the trusses deflected twelve inches as well.

Both engineers noted that the top chord of the original trusses in the clubhouse west wing had been field-modified at the time of the building’s construction. They also noted that the original air-conditioning units on top of the building had been replaced by units that weighed more than the original units and that rainwater would regularly pond on the roof. The engineers concluded that the combined factors of the cut top chord, the heavier HVAC unit, and the ponding rainwater all contributed to the failure of one or several of the eleven consecutive roof trusses, which resulted in the progressive failure of the remaining eleven trusses on the day of the reported incident. As a result of the damage to the roof, drop ceiling, and roof trusses, it was the opinion of the engineers that the structure represents a dangerous and unsafe structural condition.

After the Association submitted a claim under the policy, Sagamore filed a declaratory judgment action to determine the extent, if any, of its duty to provide coverage for the claimed loss. Relying on the aforementioned paragraphs 5.d.(l)(c) and (d) of the policy, the trial court concluded that the clubhouse was not in a state of collapse within the terms of the policy and granted Sagamore’s motion for summary judgment.

We review the entry of a summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Id. We also review the legal interpretation of contractual terms de novo. Lowe v. Winter Park Condo. Ltd. P’ship, 66 So.3d 1019, 1020 (Fla. 5th DCA 2011).

In interpreting an insurance contract, the courts are bound by the plain meaning of the contract’s text. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla.2011). If the language is plain and unambiguous, the courts must give effect to the policy as it was written. However, if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, then the policy is ambiguous. When language in an insurance policy is ambiguous, a court will resolve the ambiguity in favor of the insured by adopting the reasonable interpretation of the policy’s language that provides coverage as opposed to the reasonable interpretation that would limit coverage.

Sagamore argues that the policy does not cover the claimed loss because the roof has not “fallen” and the building is still standing. The photographs and engineering reports show that the roof of the clubhouse has not fallen to the ground. Nevertheless, the loss appears to meet the requirements in section 5d.(l) for a “collapse.” The policy defines “collapse” as an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose. “Abrupt” is defined as “characterized by or involving action or change without preparation or warning: unexpected.” Merriam-Webster’s Collegiate Dictionary 4 (11th ed. 2008).

The record establishes that on February 24, 2010, there was an unexpected change to the clubhouse when the exterior doors of the west wing of the clubhouse began to shake and the drop ceiling and soffits deflected downward, the flat roof above the deflected ceiling substantially depressed, and the first eleven roof trusses adjacent to the west wing of the clubhouse structure deflected twelve inches at midspan.

The drop ceiling, flat roof, and trusses are all parts of the building. When the trusses failed, the roof above the trusses and the drop ceiling below the trusses deflected downward twelve inches meeting not only the definition of “falling down,” but the definition of “caving in,” as well. At the time of the incident, all of these parts descended freely by the force of gravity, dropped to a lower position, and became lower in degree or level. In addition, all of these building parts suddenly fell down or inward. The policy is not written in terms of how far a part of a building must fall down or to what degree a part of a building must cave in to constitute “collapse.”

Finally, the record establishes that the building is structurally unsafe and cannot be occupied for its intended purpose. Clearly, one cannot occupy a building if it has completely fallen down or caved in. However, the same may be true for a part of a building that has partially fallen down or caved in. The policy does not clearly require total destruction for a “collapse” to occur. To the extent that the policy can be interpreted as requiring the roof to have fallen to the ground for coverage to apply, the policy is ambiguous.

Sagamore argues that the definition for “collapse” under section 5.d.(l)(a) is further clarified by paragraphs 5.d.(l)(b), 5.d.(l)(c) and 5.d.(l)(d). Under 5.d.(l)(b), “[a] building or any part of the building that is in danger of falling down or caving in is not considered to be in a state of collapse.” This section does not apply to the present case as the drop ceiling, flat roof, and trusses have already fallen down and caved in and therefore are not in danger of falling down or caving in. Paragraph 5.d.(l)(c) provides that “[a] part of the building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building.” This section does not apply to the facts in this case since there is no claim or evidence that the drop ceiling, flat roof, and trusses separated from another part of the building.

Moreover, “standing” is defined as “upright on the feet or base; remaining at the same level, degree, or amount for an indeterminate period.” Merriain-Webster’s 1216. Prior to the incident of February 24, 2010, the drop ceiling, flat roof, and trusses were upright on their base and had remained at the same level, degree, and amount of height for an indeterminate period. At the time of the incident, they collapsed. Immediately after the incident, they were no longer upright on their base; they were no longer at the same level, degree, or amount of height that they had previously maintained. Therefore, by definition, the drop ceiling, flat roof, and trusses are not standing and this section does not apply.

Since the drop ceiling, flat roof, and trusses by definition are not standing, section 5.d.(l)(d) does not apply even though the roof is showing evidence of bending or sagging. Having found coverage under section 5.d.(l)(a), if we were to accept Sa-gamore’s argument that paragraphs 5.d.(l)(b), 5.d.(l)(c) and 5.d.(l)(d) should be interpreted to avoid coverage, then the policy is ambiguous and any ambiguity in the policy must be resolved in favor of coverage. Menendez, 70 So.3d at 570.

Next, Sagamore argues that if coverage is to be found under the section 5.d. “collapse” provisions of the policy, then the exclusions under paragraph 3, specifically paragraphs 3.c.(2), 3.c.(3) and 3.c.(4) would exclude coverage. However, this argument is not supported by a careful reading of the exclusion section of the policy.

There is no dispute the “Additional Coverage for Collapse,” section 5.d of the policy, applies in this case. Therefore, any analysis of the exclusion section of the policy should begin with paragraph 2 of the exclusion section and more specifically paragraph 2.(i) of the exclusion section. This section excludes “collapse” from coverage, “except as provided in the Additional Coverage for Collapse” section. This indicates that the additional collapse coverage is not modified or qualified by any of the other listed exclusions, including those in paragraph 3, which appear to apply to the general coverage provisions of the policy instead. At best, this provision is ambiguous.

In addition, Sagamore’s argument that paragraphs 3.c.(2), 3.c.(3) and 3.c.(4) would exclude coverage makes little sense because paragraphs 5.d.(2)(d), (e) and (f) of the collapse coverage specifically includes coverage for collapse caused by one or more of the following: weight of people or personal property, weight of rain that collects on a roof, and use of defective material or methods in construction, remodeling, or renovation. This applies even if the collapse occurs, as it did in this case, after completion of the construction, remodeling, or renovation as long as the collapse is caused in part by, among other things, the weight of rain that collects on a roof or the weight of people or personal property. It is undisputed that both engineers agreed that the collapse was caused in part by the weight of the rain that collected on the roof and the weight of the air conditioners. Therefore, the exclusions in paragraphs 3.c.(2), 3.c.(3) and 3.c.(4) would directly contradict and conflict with the coverage provided in the collapse coverage provided in paragraphs 5.d.(2)(d), (e), and (f). This is another ambiguity in the policy.

In reaching our conclusion that the policy is ambiguous, we find instructive the cases cited by the Association as they are factually similar and involve the same policy language as in the present case. See, e.g., Malbco Holdings, LLC v. AMCO Ins. Co., 629 F.Supp.2d 1185 (D.Or.2009) (identical policy language involving truss system that failed causing floor and ceiling to settle by three inches); ISO Slade Condo. Ass’n, Inc. v. Millers Capital Ins. Co., No. CIV.A. CCB-07-1779, 2008 WL 2331048 (D.Md. June 02, 2008) (identical policy language involving support column buckling three inches down and three inches to south causing condominium unit’s ceiling to separate from the wall); Landmark Realty, Inc. v. Great Am. Ins. Co., No. CIV. JKS 10-278, 2010 WL 5055805 (D.Md. Dec. 03, 2010) (identical policy language involving a two-story apartment building where ground floor fell anywhere from one inch at one end of building to seventeen and one-half inches on other end as result of failure of wood support structure underneath the floor).

In sum, we hold that the policy language is susceptible to more than one reasonable interpretation, one providing coverage, and the other limiting coverage. Therefore the policy is ambiguous and this court must resolve the ambiguity in favor of the insured by adopting the reasonable interpretation of the policy’s language that provides coverage as opposed to the reasonable interpretation that would limit coverage. Menendez, 70 So.3d at 570. Accordingly, the final judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . The parties agreed on these facts and their experts relied on these facts in reaching their conclusions.

      . "Part" is defined as: "(1): one of the often indefinite or unequal subdivisions into which something is or is regarded as divided and which together constitute the whole (2): an essential portion or integral element.” Merriam-Webster's 902-903.

      . "Fall" is defined as: "to descend freely by the force of gravity ... to hang freely ... to drop oneself to a lower position ... to become lower in degree or level.” Merriam-Webster's 405.

      ."Cave” is defined as: “1: to fall in or down especially from being undermined — usually used with in 2: to cease to resist ... usually used with in: to cause to fall or collapse— usually used with in." Merriam-Webster's 197. “Cave-in” is defined as: "to fall down or inward; an occurrence in which something (such as the roof or walls of a building or cave) suddenly falls down or inward.” Merriam-Webster Learner’s Dictionary, http:// www.learnersdictionary.com/-searcli/cave (last visited May 23, 2012).

      . It makes no sense to specifically not exclude something in paragraph 2 only to exclude it in paragraph 3.

      . It is unclear from the policy whether the air-conditioners would qualify as personal property.

      . We find the cases cited by Sagamore, Mt. Zion Baptist Church of Marietta v. GuideOne Elite Ins. Co., 808 F.Supp.2d 1322 (N.D.Ga. 2011), Rapp B. Properties, LLC v. RLI Ins. Co., 65 A.D.3d 923, 885 N.Y.S.2d 283 (N.Y.App. Div.2009), and Miller v. First Liberty Ins. Corp., No. CIV.A. 07-1338, 2008 WL 2468605 (E.D.Pa. June 17, 2008), are inapposite.


author: PER CURIAM.

text:
    William ALVARADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-417.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

William Alvarado appeals the judgment rendered after the jury returned a verdict finding him guilty of attempted second-degree murder and shooting into a vehicle. Defendant argues that the jury instruction given by the trial court on self-defense improperly shifted the burden of proof to him, depriving him of his sole defense and creating fundamental error requiring reversal. Defendant argues fundamental error because he did not object to the jury instruction.

At the conclusion of closing arguments, the trial court gave instructions on the charged offense, the lesser-included offenses, and the definitions. The trial court then began instructing on self-defense. It gave the instruction on deadly force and thereafter instructed on aggravated assault:

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting: One, another’s attempt to murder him, or; two, any attempt to commit aggravated assault upon him, or; three, any attempt to commit aggravated assault upon him or in any dwelling, residence, or vehicle occupied by him.
Aggravated assault is defined as follows: To prove the crime of aggravated assault, the following four elements must be proven beyond a reasonable doubt. The first three elements define assault:
[The victim] intentionally and unlawfully threatened, either by word or act, to do violence to [Defendant]; two, at the time, [the victim] appeared to have the ability to carry out the threat; three, the act of [the victim] created in the mind of [Defendant] a well-founded fear that the violence was about to take place; four, the assault was made with a deadly weapon.

(Emphasis added). No objection was made to this jury instruction. The court also instructed the jury that if it had reasonable doubt whether Defendant was justified in the use of deadly force, it should find Defendant not guilty and that “[t]he defendant is not required to present evidence or prove anything.”

Defendant argues, and the State agrees, that the instructions are very similar to the instructions given in Montijo and that the erroneous language, emphasized above, is identical. Therefore, both parties agree that the decision in Montijo v. State, 61 So.3d 424 (Fla. 5th DCA 2011), dictates the outcome of this case. Montijo holds that a jury instruction containing this erroneous language constitutes fundamental error and requires reversal and a new trial because the error improperly shifts the burden of proof to the defendant. The State contends, however, that Montijo is wrongly decided and suggests that it be reconsidered by this court. We are bound by Montijo, and accordingly, we reverse Defendant’s convictions and remand for a new trial.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, J.J., and MONACO, D.A., Senior Judge, concur.


author: DAVIS, Judge.

text:
    William B. CRIST, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5988.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

William B. Crist challenges his judgment and forty-eight-month prison sentence entered after he pleaded no contest to possession of a controlled substance. He specifically reserved the right to appeal the denial of his motion to suppress, in which he challenged the voluntary nature of his consent to be searched. Because we find that the trial court erred in concluding that Crist’s consent to be searched was voluntary, we reverse.

Crist was stopped for riding his bicycle at night without a light. The officer completed the initial basis for the stop by issuing him a citation and then requested permission to search Crist for drugs or weapons. According to the officer, Crist agreed to the search, the officer waited for backup to arrive before conducting the search, and a vial containing cocaine was found in Crist’s right front pocket. However, at the hearing on Crist’s motion to suppress this evidence, Crist argued that he did not consent to be searched and that he was not searched until after he was placed in handcuffs. The officer acknowledged that the basis for the stop had concluded once Crist was issued the citation and that Crist was free to leave at that time. However, the officer also acknowledged that he never told Crist he was free to leave. The trial court denied the motion to suppress, finding that Crist was free to leave at the time he voluntarily consented to the search. Crist then entered a plea, reserving the right to appeal the denial of his motion to suppress.

Crist argues on appeal that he did not consent to a search and that, if anything, he merely acquiesced to the officer’s request to conduct a pat down search for weapons. Based on the record before us, we conclude that there was competent, substantial evidence on which the trial court could find that the scope of Crist’s consent, if freely given, was for a full search and not simply a pat down. See Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005) (“The standard for measuring the scope of a consent under the fourth amendment is objective reasonableness— what the typical, reasonable person would have understood the exchange of words, under the circumstances, to mean.”). But even taking all the facts in the light most favorable to the State, it remains uncertain whether Crist voluntarily gave- his consent because it is not clear that he knew he was free to leave at the time he agreed to the search or while he waited for the backup officers to arrive.

Where the reasons for a valid traffic stop have concluded and the person knows he or she is free to leave, an officer may ask for consent to search and the fruits of such a search will not be subject to suppression. State v. Sosa, 932 So.2d 582, 584 (Fla. 5th DCA 2006). However, “absent proof that the continued detention and search w[ere] consensual, anything more than an explanation of the stop constitutes a violation of ... Fourth Amendment rights.” McNichols v. State, 899 So.2d 1197, 1199 (Fla. 5th DCA 2005).

In the instant case, the officer never told Crist that he was free to leave. Cf. Sosa, 932 So.2d at 584 (“Once [the officer] told Sosa she was free to go, the detention was over.”). Had the officer affirmatively done so, it would have established that Crist knew he was free to leave when the officer requested the search absent any evidence presented by Crist to the contrary. See id. at 584-85. Because the record establishes that the officer failed to inform Crist that he was free to leave, the burden shifted to the State. Cf Palmer v. State, 758 So.2d 679, 680 (Fla. 2d DCA 2000) (discussing the State’s burden in the context of a motion to suppress evidence found after a warrantless search). Thus “the State [wa]s required to show by clear and convincing evidence that [Crist] freely and voluntarily consented to the search.” See McNichols, 899 So.2d at 1199.

Even when viewed in the light most favorable to the State, the evidence presented below does not rise to the level of clearly and convincingly proving that Crist knew he was free to leave at all points after the citation was issued. The facts show that a uniformed officer in a lighted patrol car detained him for a traffic stop during which he was not free to leave. Upon issuing the citation and without acknowledging to him that the stop was over, the officer asked if he could search Crist. Even if we could assume that Crist voluntarily agreed to the search at that point, the officer’s subsequent actions in waiting for a second patrol officer to arrive before conducting the search is the antithesis of a clear and convincing indication that a reasonable person would feel free to revoke consent and leave during that delayed waiting period. See Summerall v. State, 777 So.2d 1060, 1061 (Fla. 2d DCA 2001) (“[AJfter the deputy issued appellant the traffic citation, he engaged appellant in further conversation in an attempt to delay him; requested to search appellant’s vehicle; and after this request was denied, told appellant that he still was going to have a canine walk around the vehicle. Under these circumstances, no reasonable person would have believed himself ‘free to leave.’ ”); cf Sosa, 932 So.2d at 584 (“No evidence was presented ... indicating that any officer attempted to prolong the traffic stop. Nor was any evidence presented ... that [the deputy] blocked her from leaving the scene, threatened her, held on to her license, or asked her to step out of her car.”).

Because the State failed to meet its heavy burden to show that Crist’s consent was freely given, the trial court should have granted the motion to suppress. We therefore reverse and remand for the trial court to set aside Crist’s judgment and resulting sentence.

Reversed and remanded.

KHOUZAM and MORRIS, JJ„ Concur.

      . Crist’s appeal was initially briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but this court ordered supplemental briefing on the voluntary nature of Crist’s consent to be searched and allowed the parties to submit supplemental briefing related to the issue addressed in State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla. 2011). Because we conclude that the issue of the voluntariness of the consent to search is meritorious and that the suppression of the results of that search is a dispositive issue, the potential Adkins issue is mooted by our reversal. See G.G. v. State, 84 So.3d 1162 (Fla. 2d DCA 2012).

      . Although there was no determination on the record that the suppression issue was disposi-tive, it is clear that without the drugs found as a result of the search, the charges against Crist would not exist. We therefore afford Crist the benefit of any uncertainty by allowing the appeal to proceed. See England v. State, 46 So.3d 127, 129 (Fla. 2d DCA 2010).


author: DAMOORGIAN, J. WARNER, J.,

text:
    Laura TULLIER, Appellant, v. Damien TULLIER, Appellee.
    No. 4D11-990.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Rehearing Denied Sept. 7, 2012.

      Mark Miller of the Appellate Law Office of Mark Miller, P.A., Stuart, for appellant.
    Damien Tullier, Stuart, pro se.
   DAMOORGIAN, J.

Laura Tullier (“Former Wife”) appeals the trial court’s final judgment, which granted Damien Tullier (“Former Husband”) unsupervised visitation with the parties’ children. The issue on appeal is whether the trial court erred when it modified Former Husband’s visitation of the parties’ children from supervised to unsupervised. We conclude that the trial court’s findings were supported by competent, substantial evidence that Former Husband demonstrated a substantial change in his circumstances warranting modification of visitation. We affirm.

In June 2005, after seven years of marriage and two children, the parties separated when Former Husband explained to Former Wife that he had an addiction. In November 2005, the parties were officially divorced. The final judgment of dissolution of marriage followed the marital settlement agreement (“MSA”) reached by the parties. It declared Former Wife the primary residential parent, and Former Husband would have supervised visitation with the children every other weekend in the home of the maternal grandparents, the wife, or the paternal grandparents. The final judgment also called for both a psychological evaluation of Former Husband and allowed for a reevaluation of the supervised visitation after one year based on that evaluation. The MSA stated that if the expert evaluator determined that supervised visitation was no longer necessary, Former Husband could file a supplemental petition to modify the visitation.

Eleven months after the dissolution of marriage, Former Wife sought a modification of the final judgment. Former Wife explained that her parents found supervision burdensome and uncomfortable, and that the paternal grandfather no longer could supervise the visitation. Former Husband answered Former Wife’s petition and filed his own counter-petition seeking modification of the final judgment to allow him unsupervised visitation. After reviewing the testimony and evidence presented by the parties, the court entered a supplemental final judgment, concluding that Former Husband should only have supervised visitation with the children. The trial court stated that there existed a real and present danger that the children would detrimentally be exposed to Former Husband’s addiction. It also found that the best interests of the children warranted that the visitation occur in a facility with professional supervisors rather than lay persons.

In February 2009, over a year after the entry of the supplemental final judgment, Former Husband filed his supplemental petition for modification of visitation, stating that he had undergone intensive therapy and counseling and was ready for a more regular parental access schedule with his minor children. Former Wife answered Former Husband’s petition and filed a counter-petition for modification, requesting sole parental responsibility.

In October 2010, a trial was held on both parties’ petitions. At trial, Former Husband presented numerous fact witnesses and two expert witnesses, who included: 1) Dr. Bollinger, a licensed mental health counselor, who testified that Former Husband did not have a relapse in his addiction and is continuing with therapy/counseling; 2) Dr. Gray, a licensed family therapist and mental health counselor who conducted twenty-eight therapy sessions with Former Husband, stated that Former Husband should begin unsupervised visitation; 3) an employee from Castle, the facility that supervised his visitation, who explained that Former Husband did not have any problems with his children during his supervised visitations; 4) Former Husband’s pastor, who spoke favorably about Former Husband’s participation in counseling and therapy at the church; 5) another member of Former Husband’s group therapy sessions, who verified Former Husband’s high attendance and regular participation during therapy sessions; and 6) Former Husband, who testified on his own behalf.

After assessing the credibility of both parties’ witnesses, the trial court entered a third amended final judgment, concluding that Former Husband had “proven a substantial and material change in circumstances, and that a change to the timeshar-ing arrangement is in the best interests of the minor children.” The court found that it was time for Former Husband to begin his reunification process with his children, and Former Husband’s supervised time-sharing with his children was removed. In the ten-page final judgment, the court detailed the history of the proceedings, the evidence presented by the parties, and the changes in Former Husband’s circumstances. The relief sought by Former Wife was denied. This appeal follows.

Former Wife argues that the trial court erred in modifying Former Husband’s supervision of the children because the trial court’s decision was not supported by substantial, competent evidence. We disagree.

Section 61.13(3), Florida Statutes (2010), provides:

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parents relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.

§ 61.13(3), Fla. Stat. (2010) (emphasis added). Although the movant has an extraordinary burden to satisfy the substantial change in circumstance test, “a trial court’s order changing custody enjoys a presumption of correctness on appellate review and will not be disturbed absent a showing of abuse of discretion.” Sanchez v. Hernandez, 45 So.3d 57, 62 (Fla. 4th DCA 2010) (citing Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005)). “In the absence of a properly pled modification petition, it is error to enter a modification order. Further, if the noncustodial parent fails to allege that a substantial and material change has occurred and the trial court fails to make a similar finding, the modification order should be reversed.” Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997) (internal citation omitted).

Former Husband presented the testimony of two doctors licensed in mental health counseling. They explained that Former Husband did not have a relapse with his addiction, and he should begin unsupervised visitation with the children. Former Husband’s other witnesses testified that Former Husband was regularly attending and participating in therapy sessions, he was benefiting from therapy, and there were no problems with his current visitations with the children.

In Bon v. Rivera, 10 So.3d 193 (Fla. 4th DCA 2009), this Court reversed a trial court’s order granting temporary emergency custody to the former husband. Id. at 196. In reaching its holding, this Court reasoned:

[T]he former husband did not specifically allege, in either his motion for modification or at the hearing, that there has been a substantial change in circumstances since the final judgment dissolving the parties’ marriage. Moreover, the trial court did not make a finding of a substantial change in circumstances in support of its order modifying custody. Thus, the trial court erred in temporarily modifying custody of the parties’ children.

Id. at 195-96. Here, unlike Bon, Former Husband’s petition, the testimony from the 2010 trial, and the trial court’s final judgment demonstrate that there was a material and substantial change in circumstances supporting a modification of Former Husband’s visitation. We observe that the trial court’s consideration of the testimony and evidence presented by both parties was thorough and conscientious, and the order was detailed and clear. See Imami v. Imami, 584 So.2d 596, 597 (Fla. 1st DCA 1991) (“Regarding the issues raised by the former husband, we have carefully examined the record and the trial court’s rather detailed final judgment and find that the evidence adduced below amply supports the judgment.... ”); Brown v. Bd. of Trs., 369 So.2d 640, 640 (Fla. 3d DCA 1979). We will also not second guess the trial court’s assessment of the witnesses’ credibility in this case. See Porter v. State, 788 So.2d 917, 923 (Fla.2001) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”); Estate of Despain v. Avante Grp., Inc., 900 So.2d 637, 643 (Fla. 5th DCA 2005); Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976) (“It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it.”).

Moreover, the trial court found that it was in the best interests of the minor children — the primary consideration in modifying a parenting plan — to remove Former Husband’s supervised timeshar-ing. See § 61.13(3), Fla. Stat.; see also Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”) (citation omitted). Based upon the foregoing, we conclude that Former Wife has not shown that the trial court abused its discretion in modifying Former Husband’s visitation with the children.

Affirmed.

CONNER, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I dissent. The evidence presented at the petition for modification did not show that a substantial change of circumstances has occurred to warrant a change from supervised visitation to unsupervised visitation. While the father has sought treatment for his addiction, he continues to engage in addictive behaviors, even with therapy, which both he and his second wife admitted. Neither of the experts who testified for the father knew of his continued behavior. In fact, his treating therapist testified that the father had told him that he had not engaged in these behaviors, even though the father admitted at trial that he had. The court’s findings to the contrary are simply not supported by competent substantial evidence.

This court recently addressed the appropriate standard of review of an order modifying custody:

The party seeking to modify a custody order bears an “extraordinary burden” to satisfy the “substantial change in circumstances” test.... Notwithstanding the movant’s extraordinary burden, a trial court’s order changing custody enjoys a presumption of correctness on appellate review and will not be disturbed absent a showing of abuse of discretion- However, it is well-settled that a trial court’s authority and discretion in a modification proceeding is substantially more restricted than at the time of the original custody determination.

Sanchez, 45 So.3d at 61-62 (Fla. 4th DCA 2010) (citations omitted). The “noncustodial parent must show that modification would promote the children’s welfare.” Bartolotta v. Bartolotta, 687 So.2d 1385, 1386 (Fla. 4th DCA 1997).

The father did not meet his extraordinary burden and did not show that a change would promote the children’s welfare. In fact, there is nothing in the record to suggest that the children’s welfare would be enhanced in any way by permitting unsupervised visitation.

      . Supervised visitation was a result of the Former Husband’s addiction and was determined to be in the best interests of the children.

      . Although referred to as the third amended final judgment, the final judgment has only been amended twice.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Henry LEWIS, Appellee.
    No. 4D11-2990.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   GERBER, J.

The state appeals from the circuit court’s order granting the defendant’s motion to suppress cocaine found on the defendant. The state argues that the defendant’s flight from the back of a house, immediately after a drug transaction occurred in the front of the house, along with the arresting officer’s concern that the defendant was the person who engaged in the drug transaction, established reasonable suspicion to warrant an investigatory stop. We agree and reverse.

Two detectives testified at the suppression hearing. The first detective testified that he and a confidential informant drove up to a man in a convenience store parking lot. They asked the man where they could buy drugs. The man said he would take them someplace. The man jumped in the back of their vehicle and directed them to a house. They parked across the street from the house and gave money to the man. The man got out of the vehicle and appeared to buy cocaine from a woman sitting on the house’s front porch. As the man conducted the buy, the first detective, speaking over the radio to backup officers, including the second detective, described the man and the woman. The first detective described the man as “an older guy, skinny,” wearing a T-shirt and jeans. After the man completed the buy and was walking back to the vehicle, the first detective told the backup officers that they should move in to arrest him.

The second detective testified that he heard the first detective over the radio describe the man as “an older male, skinny or slim.” The second detective also heard the first detective tell the backup officers to move in. At that point, the second detective drove his vehicle to the back of the house. The second detective then described what occurred as he was pulling up to the back of the house:

SECOND DETECTIVE: As I am pulling up to the back of the house, I exit my vehicle, see vehicles coming from north and south towards the front of the structure. I hear vehicles stop. I hear people get out. And I get out of [the] car. Seconds later, I see the back door fly open and the defendant ran out the back door.
STATE: And what were you wearing at this point?
SECOND DETECTIVE: My [sheriffs office] tactical uniform, says “Sheriff’ written in big letters on the front of my vest.
STATE: So you see a door burst open and someone runs out back?
SECOND DETECTIVE: Yes.
STATE: And what do you do?
SECOND DETECTIVE: He comes out back, sees me, tries to get back inside. At this point, he is about two feet from me. I grab the arm and that point, I was trying to find out what his reason was for coming out the back door. STATE: So what do you do?
SECOND DETECTIVE: Start conversation with him, very cooperative. Wasn’t being rude or anything. Told me he saw raiders in the front of the house.
STATE: What does raiders mean? SECOND DETECTIVE: Raiders is just street language for the street narcotics crime unit.
STATE: So at this point, what do you say?
SECOND DETECTIVE: Start talking to him, like I said, asked if he had anything on him, something to that effect. He said, you can check. I got nothing on me.
STATE: What do you do at that point? SECOND DETECTIVE: Went ahead, searched him for weapons, narcotics, anything like that based on the fact he gave consent. I found a small baggie of cocaine.
STATE: Why did you stop him when he ran out of the house?
SECOND DETECTIVE: I wasn’t sure if that was the male that [the first detective] said was sitting in the back of the truck. When I saw the units pulling up to initiate the arrest, I got out, ran around the house. I don’t know if he fit the description of an older black male [which the first detective] gave out. Didn’t know if he was in custody or not at that point.

On cross-examination, the second detective testified he could not remember whether the defendant’s clothing matched the first detective’s description of the man involved in the drug transaction. The second detective also testified that the first detective did not describe the man by years of age. The second detective further testified that he did not recall hearing anything over the radio about any of the suspects running away.

The defendant argued that the circuit court should suppress the cocaine because the second detective did not observe circumstances sufficient to form a reasonable suspicion that the defendant committed a crime. The defendant also argued that his consent to the search was mere acquiescence to the exercise of police authority. The state responded that the second detective had a reasonable suspicion that the defendant was the man involved in the drug transaction because of his appearance and because he ran from the house where the drug transaction occurred. The state also responded that the defendant voluntarily consented to the search. In reply, the defendant argued it was not reasonable for the second detective to suspect that he was the man involved in the drug transaction because the drug transaction occurred on the house’s front porch, and because the second detective could not remember whether the defendant’s clothing matched the first detective’s description of the man involved in the drug transaction.

The circuit court granted the motion to suppress as follows:

I have read through the various cases presented by the State and the key factor is, again, whether or not there is an articulable suspicion or facts supporting suspicion that criminal activity was taking place [and] that the defendant was involved in criminal activity.
The facts presented in our case is that this whole buy-bust transaction occurred outside the residence. At no time was there any testimony by [the first detective] or by [the second detective] ... that any of the suspects entered the residence. Indeed, the only male that was involved in that drug transaction was either in or around the police vehicle. And the key is what facts are artic-ulable. And based upon the facts of the drug transaction, there is absolutely no evidence that [the defendant] was involved in that transaction nor was there any evidence to suspect that. The only suspicion is that [the second detective] approaching from the back sees [the defendant] exit the back door and [the defendant], instead of running away, simply goes back into the residence.
Clearly, [the second detective] grabbing the defendant constitutes a stop. This is not a consensual encounter. So the question is, does the mere fact that the defendant is exiting this residence from the rear when there is an arrest or a drug transaction outside the residence in the front of the residence and where the male suspect was already secured in or by the police car, and granted, [the second detective] may not have had very good communication with other officers involved in the operation, but the mere fact that there is a black male involved in the front with no information of any black male fleeing or going into the residence, the court does not find that that justifies the stop of [the defendant].
The court is also taking into account the totality of the circumstances and is not convinced as well .that this was truly a consent situation and not simply an acquiescence to police authority or exercise of police authority. That’s a secondary ground.

After the circuit court entered a written order granting the motion to suppress, the state filed this appeal. We defer to the circuit court’s factual findings, but apply the de novo standard of review to the circuit court’s legal conclusions. Nshaka v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA2012).

We conclude that the second detective had reasonable suspicion to justify an investigatory stop. When reviewing courts make reasonable suspicion determinations, they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “[T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744. “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Ward-low, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

In Wardlow, the United States Supreme Court held that a defendant’s flight upon seeing the police patrolling an area known for heavy narcotics trafficking supported reasonable suspicion that the defendant was involved in criminal activity and justified an investigatory stop. Id. at 124, 120 S.Ct. 673. The Court reasoned: “Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. The Court further reasoned: “Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the [individual] and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” Id. at 125, 120 S.Ct. 673.

Following Wardlow, the first district held in Parker v. State, 18 So.3d 555 (Fla. 1st DCA 2008): “Since Wardlow, flight has taken on a more significant role in the determination of the reasonableness of an investigatory stop. Even so, flight is still merely one factor that may be considered in such a determination and is not sufficient in itself to justify an investigatory stop. There must be some additional factor or factors, which, when combined with flight, would give rise to a reasonable suspicion that criminal activity is afoot.” Id. at 558 (internal citations omitted). For example, “flight may give rise to a reasonable suspicion of criminal activity even when the flight does not take place in a high-crime area, depending on the remaining circumstances of the case.” Id. at 558-59.

Here, additional factors existed which, when combined with the defendant’s flight, gave rise to a reasonable suspicion of criminal activity. The first detective, over the radio, stated that a drug transaction occurred in the front of the house, described the suspect, and told the backup officers that they should move in and arrest him. The second detective heard this information. Immediately thereafter, the defendant fled from the back of the house, saw the second detective, and tried to go back inside the house. The second detective did not know whether the defendant was the suspect from the front of the house, and so he stopped the defendant to investigate. The foregoing circumstances give rise to a reasonable suspicion of criminal activity even though the second detective did not know whether the defendant was the suspect from the front of the house. See Parker, 18 So.3d at 559-60 (reasonable suspicion existed where, after the police received a domestic battery complaint, the arresting officer saw the defendant and another man one block away at 3:00 a.m. on an otherwise empty street, and when the officer shined a spotlight in their direction, they both ran); Sinclair v. State, 816 So.2d 149, 150 (Fla. 1st DCA 2002) (reasonable suspicion existed where, after the police received a prowling complaint, the arresting officer saw the defendant approximately an hour- and-a-half later at 2:00 a.m. walking along a road he could have reached from the neighborhood where the prowling complaint originated, and when the defendant saw the officer’s patrol vehicle, he began walking in the opposite direction).

We also conclude that the defendant’s consent to the search was not simply an acquiescence to police authority. According to the second detective, he asked the defendant “if he had anything on him.” The defendant responded, “you can check. I got nothing on me.” In other words, the second detective did not request to search the defendant; the defendant volunteered to be searched. Because the circuit court did not question the second detective’s credibility in its factual findings, and because the court’s factual findings only mentioned the circumstances surrounding the investigatory stop, the court erred in its legal conclusion that the defendant’s consent was simply an acquiescence to the exercise of police authority. See Gonzalez v. State, 59 So.3d 182, 186 (Fla. 4th DCA 2011) (“Generally, the fact that a defendant has been taken into custody or otherwise detained is not sufficient to constitute coercion and render consent involuntary as a matter of law.”) (citations omitted); I.R.C. v. State, 968 So.2d 583, 586 (Fla. 2d DCA 2007) (“The circumstance that consent is given by an individual who is under arrest or otherwise detained does not establish that the consent was involuntary. The fact of custody alone has never been enough in itself to demonstrate a coerced ... consent to search.”) (citation and internal quotations omitted).

In sum, the totality of the circumstances presented to the second detective gave him reasonable suspicion to stop and investigate the defendant. To paraphrase the United States Supreme Court, as stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “It would have been poor police work indeed for [the] officer ... to have failed to investigate this behavior further.” Id. at 23. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

TAYLOR and CIKLIN, JJ., concur.


author: CIKLIN, J.

text:
    James KOSKI, Appellant, v. Karen Fenner KOSKI, Appellee.
    No. 4D11-1506.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.

      Chet E. Weinbaum, Fort Pierce, for appellant.
    Karen Fenner-Koski, Port St. Lucie, pro se.
   CIKLIN, J.

The former husband appeals an order denying his supplemental petition for modification of alimony. Because we are unable to determine if the trial court considered all applicable section 61.08(2) factors before concluding that the former husband’s alimony obligation should remain unchanged despite a substantial increase in the former wife’s earnings, we reverse and remand for further proceedings.

In 2003, the trial court entered an amended final judgment of dissolution of marriage, dissolving the parties’ nineteen-year marriage. In that judgment, the trial court found that the former husband’s gross earnings were $3180 per month and the former wife’s gross earnings were $1710 per month. The trial court also found that the parties’ marriage was a long-term marriage and that the standard of living established during the marriage was middle class. Based on these and other findings, the trial court awarded the former wife $400 per month in permanent periodic alimony.

In August 2010, the former husband filed a petition for modification of alimony in which he requested that the trial court end his alimony obligation to the former wife. According to the former husband, the substantial change in circumstances which warranted modification was that the former wife’s gross monthly income had increased from $1710 to $4187. The record includes a family law financial affidavit from the former husband in which he asserted that his current monthly income was $3418 per month. The former wife filed a family law financial affidavit claiming that her current gross monthly income (excluding the alimony payments) was $4867 per month.

In March 2011, the trial court entered an order denying the former husband’s petition for modification. With regard to alimony, the trial court wrote, “The former wife has experienced a substantial increase in her earnings. However, there is insufficient evidence that her needs are met or have decreased.” The former husband now appeals the trial court’s order denying his petition for modification of alimony.

To warrant a modification of alimony, the party seeking the change must prove “1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary, and permanent in nature.” Damiano v. Damiano, 855 So.2d 708, 710 (Fla. 4th DCA 2003). In this case, it is not clear from the trial court’s order if the trial court found that the former husband had met his burden with regard to a substantial change in circumstances.

The trial court found that the “former wife has experienced a substantial increase in her earnings.” This finding is supported by the former wife’s own financial affidavit in which she claimed her current monthly gross income (excluding the alimony payment) was $4867 at the time of the modification hearing compared to a monthly gross income of $1710 at the time of final judgment of dissolution.

The trial court did not make any findings with regard to whether an increase in the former wife’s income of this magnitude was contemplated at the time of the final judgment. The final judgment of dissolution, however, indicates that an increase in the former wife’s income of this magnitude was found to be unlikely. Additionally, no evidence was presented from which the trial court could conclude that the parties contemplated that the former wife would experience an income increase of this magnitude. Thus, a finding that the former wife’s substantial increase in her earnings was contemplated would not be supported by competent, substantial evidence. See Kamenski v. Kamenski, 15 So.3d 842, 843 (Fla. 2d DCA 2009) (finding that a receiving spouse’s income increase from $17,500 at the time of the final judgment to $41,000 at the time of the petition for modification was an unanticipated and substantial change in circumstances where “neither the evidence presented nor the final judgment itself established that the parties contemplated that [the former wife] would experience an income increase of that magnitude”).

The trial court also made no findings with regard to whether the former wife’s income increase was permanent in nature. The record, however, indicates that on December 23, 2009, the former wife submitted a financial affidavit stating that her gross monthly income was $4187, and that on March 14, 2011, she filed another financial affidavit showing a gross monthly income of $4867 (excluding alimony). “Since the condition had lasted over a year at the time of the final hearing, with no apparent end in sight, it should be deemed sufficiently permanent.” Woolf v. Woolf, 901 So.2d 905, 912 (Fla. 4th DCA 2005).

Once the former husband met his initial burden of proving that there was a substantial, permanent, and unanticipated change in circumstances, the trial court was required to consider the relevant section 61.08(2) factors to determine the appropriate amount of alimony, if any, that the former husband should still be obligated to pay. See Donoff v. Donoff, 940 So.2d 1221, 1223 (Fla. 4th DCA 2006) (holding that “all applicable section 61.08(2) factors must be considered in modification proceedings under section 61.14.”).

We are unable to conclude based on the hearing transcript or the final order that the trial court considered the relevant factors; therefore, we are compelled to reverse the trial court’s denial of the former husband’s petition for modification of alimony, and remand for further proceedings. On remand, the trial court may take additional evidence if necessary, and it must consider all relevant section 61.08(2) factors in determining the appropriate amount, if any, of the former husband’s alimony obligation. See Donoff, 940 So.2d at 1228.

On remand, if the trial court determines that the former husband is still obligated to pay more than a nominal amount to the former wife, the trial court must also make “written findings of exceptional circumstances” to justify the award of alimony which leaves the former husband with “significantly less net income than the net income of’ the former wife. See § 61.08(9), Fla. Stat. (2011) (“The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.”).

Reversed and remanded for further proceedings consistent with this opinion.

STEVENSON and TAYLOR, JJ., concur.

      . The amended final judgment reads in pertinent part: "There was testimony regarding the Wife’s wish for permanent placement and an increase in pay with Vision Research but there has [been] no offer made to the Wife for that position by the employer.”

      . We note that what is now subsection nine of section 61.08 was added by the Florida Legislature in 2011. Ch. 2011-92, §§ 79-80, at 1704, Laws of Fla. Although the former husband filed his petition for modification of alimony in August 2010, before the amendment's effective date, "[t]he amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on ... July 1, 2011.” See id. Thus, on remand, the amendment is applicable to this case.


text:
    Julissa DeLEON, Appellant, v. DOLLAR TREE STORES, INC., Appellee.
    No. 4D11-2425.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2012.
    Rehearing Denied Sept. 4, 2012.
    Elliot B. Kula and Daniel M. Samson of Kula & Samson, LLP, Aventura, and Daniel W. Courtney of Daniel W; Courtney, P.A., Miami, for appellant.
    Sheridan K. Weissenborn of Miller, Ka-gan, Rodriguez & Silver, PL, Coral Gables, for appellee.
   CIKLIN, J.

Julissa DeLeon, the plaintiff below, appeals from the trial court’s entry of summary judgment in favor of Dollar Tree Stores, Inc., the defendant below. De-Leon sued Dollar Tree for injuries she suffered when she tripped over a shopping basket which was on the floor behind her in a checkout line. She accused Dollar Tree of negligence in failing to keep the store reasonably safe and failing to warn her about the shopping basket. Upon reviewing the record, we find that genuine issues of material fact existed, and we therefore reverse the trial court’s entry of summary judgment against DeLeon.

Because this is an appeal of a summary judgment, we recite the facts in the light most favorable to DeLeon, the non-moving party. See Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012) (“When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” (quotation marks and citation omitted)). Shopping after work, DeLeon went to a Dollar Tree store to purchase a few items. She approached the one open checkout line where two customers were ahead of her. The person at the front of the line was causing a delay because she was using coupons. At some point while DeLeon waited in line, a woman who was talking on a cell phone got in line behind her. Eventually a neighboring register opened up and the cashier at that register pointed to DeLeon and told her to come to the newly opened register. At first DeLeon declined and stayed in line, but the new cashier insisted, so DeLeon gathered her items, turned to walk to the neighboring register, and tripped over a shopping basket that was on the floor behind her. DeLeon fell on the floor and injured herself.

DeLeon did not recall who put the shopping basket on the floor behind her or if it was already there when she first entered the line. The floor was not wet or slippery.

An assistant manager and two other employees were working at the Dollar Tree store during the evening of the incident. It was the employees’ duty to ensure that the store was kept clean and clear of obstacles on the floor. However, it was so busy that evening that the assistant manager found it necessary to operate a register for approximately fifteen minutes. Another employee was on break when the accident occurred. Consequently, the store was not checked for obstacles for at least a half an hour.

One of the cashiers stated in deposition that she was responsible for patrolling the store for discarded items, including shopping baskets on the floor. Customers were apt to leave their shopping baskets on the floor when they were in the checkout line.

After reviewing the deposition testimony and documentary evidence submitted, the trial court granted Dollar Tree’s motion for summary judgment and entered a subsequent final judgment, from which De-Leon appeals.

“The standard of review of an order granting summary judgment is de novo.” Corpa v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011). Further, “[a] summary judgment can be affirmed only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011).

Summary judgment may only be granted when the facts are “so crystallized” that nothing remains but questions of law. Id. This court has cautioned that “[mjovants for summary judgment in a negligence case face an especially high burden.” Lindsey v. Bell S. Telecomms., Inc., 943 So.2d 963, 965 (Fla. 4th DCA 2006); see also St. Fort v. Post, Buckley, Schuh & Jemigan, 902 So.2d 244, 248 (Fla. 4th DCA 2005) (“The movant for summary judgment in a negligence case has the heavy burden of showing unequivocally that there was no negligence.” (quotation marks and citation omitted)).

Dollar Tree’s “constructive notice of a dangerous condition may be inferred from either 1) the amount of time a substance has been on the floor, or 2) the fact that the condition occurred with such frequency that the owner should have known of its existence.” Thompson v. Poinciana Place Condo. Ass’n, 729 So.2d 457, 458 (Fla. 4th DCA 1999) (citation and quotation marks omitted). There was no evidence presented as to how long the shopping basket had been on the floor. However, one of Dollar Tree’s cashiers testified in deposition that one of her job responsibilities was seeking out errant shopping baskets and returning them to their rightful place. She admitted that it was common for customers to place their shopping baskets on the floor in the checkout line. She stated that on multiple prior occasions she had warned customers about shopping baskets left on the floor. Therefore, a jury could reasonably conclude that Dollar Tree had constructive notice of the shopping basket based on its occurring with such frequency that the owner should have known of its existence.

Dollar Tree relies heavily on its argument that summary judgment was appropriate because DeLeon was aware that the shopping basket was present on the ground when she tripped over it. We find, however, that the record reveals this to be a disputed point. And even if the record revealed conclusively that DeLeon was aware of the shopping basket behind her when she tripped, Dollar Tree’s argument would be without merit. See Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001) (“A plaintiffs knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.”).

In sum, the record in this case reveals genuine issues of material fact as to whether Dollar Tree negligently failed to keep its premises reasonably safe for De-Leon, and if so, whether DeLeon’s injuries were a result of such negligence. We therefore reverse the summary judgment in favor of Dollar Tree.

Reversed and remanded for further proceedings.

STEVENSON and TAYLOR, JJ., concur.


author: CASANUEVA, Judge.

text:
    Kelly FAZZINI, Appellant, v. Pamela DAVIS, Appellee.
    No. 2D11-3239.
    District Court of Appeal of Florida, Second District.
    July 13, 2012.

      Bruno F. DeZayas and Kevin E. Leisure of Harbmeier DeZayas, LLP, Lakeland, for Appellant.
    Thomas C. Saunders and Alan L. Perez of Saunders Law Group, Bartow, for Ap-pellee.
   CASANUEVA, Judge.

Kelly Fazzini appeals the trial court’s order denying his petition to modify a domesticated State of Virginia judgment allowing Pamela Davis, his child’s maternal grandmother, visitation rights. Mr. Fazzi-ni alleges two instances of trial court error. First, he claims that the trial court erred in concluding that the Virginia judgment qualified for recognition in Florida under the Full Faith and Credit Clause of the Constitution of the United States. Second, he claims that the trial court erroneously denied his request to modify the Virginia judgment after its domestication under Florida law. As to the first claim, we affirm. But we find merit in the second and reverse.

Facts and Procedural History

Mr. Fazzini and his wife Heather were blessed with the birth of this their first child in June 2007. At this time, Mr. Fazzini was on active duty with the United States Navy and was stationed in Virginia where the child was born. In September 2007, three months after her child’s birth, Heather died tragically. A week after his wife’s death, and because he was still on active duty, Mr. Fazzini placed the child into the custody and care of his own parents, Colin and Robin Fazzini. The paternal grandparents took the child to live with them at their home in Frostproof, Florida, until Mr. Fazzini could secure his discharge from the Navy. Within weeks after her daughter’s death, Mrs. Davis filed a suit seeking custody of or visitation with her grandchild. Mr. Fazzini defended against her suit but the parties eventually reached a settlement. Thereafter, in early February 2008 and just before he was discharged from the Navy, the Virginia court rendered a consent judgment giving Mr. Fazzini sole custody of the child and Mrs. Davis certain visitation rights. Upon his discharge from the Navy, Mr. Fazzini returned to Florida and moved in with his parents and his child.

Since his wife’s death, the relationship between Mr. Fazzini and Mrs. Davis has not been the warmest. Sometime after returning to Florida, Mr. Fazzini began dating another woman (Tiffany) who later became his fiancée. She moved in with him, his child, and the grandparents. While living together she acted, and the whole household referred to her, as the child’s mother. Mr. Fazzini and his fian-cée were married in May 2009. A year later, the new Mrs. Fazzini adopted the child. In order to be eligible to adopt the child, the adoption statute required that she have the consent of Mr. Fazzini. See § 63.042(2)(c)(l), Fla. Stat. (2010). It goes without peradventure that Mr. Fazzini readily consented to this adoption.

Soon after Mrs. Davis began to exercise her grandparent visitation rights, disputes arose between her and Mr. Fazzini. Their disputes centered on two issues: first, where Mrs. Davis’s visitations could occur and, second, when the child should be told about the biological mother’s death and the adoption. Mrs. Davis sought to tell the child immediately; Mr. Fazzini, due to other concerns, sought to delay the disclosure. To maintain parental control over his child’s life, in April 2008 Mr. Fazzini instituted a suit in Florida to domesticate the Virginia consent judgment and to modify it by terminating Mrs. Davis’s visitation rights.

The domestication and modification proceedings were contentious and protracted. Initially, the parties disagreed as to whether Florida or Virginia had jurisdiction to resolve their visitation dispute. In September 2008, the trial court conducted a telephonic hearing with the Virginia court and the two Virginia attorneys representing the parties there; also present with the trial court were the Florida attorneys representing the respective parties. The trial court thereafter rendered an order that found that the Virginia court had established jurisdiction over the child and Mr. Fazzini. In this order the trial court further stated that it would not disturb that determination, but that

should the Commonwealth of Virginia relinquish jurisdiction of this matter, this Court may, upon proper application, determine to take in personam jurisdiction over the minor child and the subject matter jurisdiction of this action. The Court did advise the parties present in both Florida and Virginia, however, that should this Court take jurisdiction over the minor child and the subject matter of this action, the Virginia Orders in place would be given full faith and credit in the State of Florida unless modified by the State of Florida Court upon proper application being made therefore[ ] and a proper showing being demonstrated for any change.

In April 2009 the Virginia court relinquished jurisdiction to Florida and the case thereafter proceeded under Florida jurisdiction.

On June 8, 2011, the trial court held an evidentiary hearing on Mr. Fazzini’s third amended petition to domesticate the Virginia judgment and to modify it. At the time of this hearing, Mrs. Davis had only visited the child four times since the child moved to Florida at the age of three months and not at all since December 2009. Mr. Fazzini, Mrs. Tiffany Fazzini, Mrs. Robin Fazzini, and Mrs. Davis testified at the hearing. The parties presented evidence of hostile emails and returned envelopes and letters, described the four visits Mrs. Davis had had in the intervening period, and argued their respective positions. Mrs. Davis’s main concern, understandably, was to maintain contact with this grandchild, all that she had left of her deceased daughter; Mr. Fazzini’s main concern, also understandably, was to parent his child without what he considered detrimental interference from Mrs. Davis whom he no longer trusted.

Based upon the testimonies and evidence, the trial court entered a final judgment finding that the Virginia order was domesticated in Florida and that Virginia had relinquished jurisdiction to the trial court. The final judgment went on to state:

What [Mr. Fazzini] seeks to do is modify the agreed order out of existence. He is asking that the rights awarded to [Mrs. Davis] by his voluntary and counseled agreement be terminated. He alleges in his third amended petition that there has been a substantial change in circumstances which justify terminating those rights to which he agreed in Virginia. [Mr. Fazzini] argues that the legal standard should not be the traditional] family law standard announced in Wade v. Hirschman, 903 So.2d 928 (Fla.2005) [,] because Florida does not recognize the grandparent’s right which is recognized in Virginia. The argument is that the lawful order of Virginia should not be given Full Faith and Credit in Florida.
Although this is not a custody case, [Mr. Fazzini] has styled it as such in his pleadings. It certainly is a time-sharing case. The Court can find no case which suggests any legal standard for modification of a time-sharing order other than a showing by the moving party that a substantial and significant change in circumstances of the parties must first be established by the evidence, and only then can the Court go to the second step of determining whether the modification sought is in the best interest of the child. The change must be significant, material, involuntary, permanent, and unanticipated. Measured against this standard [Mr. Fazzini] cannot support his modification request on the adoption of the child by [Mrs. Tiffany Fazzini] as he voluntarily consented to the adoption. The distrust between [Mr. Fazzini] and [Mrs. Davis] is not a change in circumstances. The other grounds alleged in paragraph 7 of the third amended petition are not supported by the evidence.

Mr. Fazzini appeals this order denying him modification of the Virginia judgment. He raises two issues: (1) that the trial court erred as a matter of law by giving the Virginia judgment full faith and credit; and (2) that the trial court applied the incorrect standard in denying modification. As noted previously, on the first issue we disagree and conclude that the trial court was constitutionally bound to give the Virginia judgment full faith and credit by reason of the Full Faith and Credit Clause, article IV, section 1 of the United States Constitution (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”). See Baker v. Gen. Motors Gorp., 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). It is Mr. Fazzini’s second issue that has merit and requires that we reverse the trial court’s order denying modification of the Virginia court’s judgment that granted Mrs. Davis visitation rights.

Discussion

Although he sought domestication of the Virginia judgment, and received it, Mr. Fazzini contends that the trial court should not have given the Virginia judgment full faith and credit. These two concepts — domestication of a foreign order and full faith and credit — are inextricably interwoven and one cannot be had without the other. Section 55.502, Florida Statutes (2008), defines “foreign judgment” as “any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.” The record establishes without question that the Virginia court, at the time it entered the judgment settling the suit between Mrs. Davis and Mr. Fazzini, possessed subject matter jurisdiction and personal jurisdiction under its codification of the Uniform Child Custody Jurisdiction and Enforcement Act. See Va. Code. Ann. §§ 20-146.1 to .38 (2008). Thus the trial court was required to recognize the Virginia judgment, give it full faith and credit, and domesticate it. See Zitani v. Reed, 992 So.2d 403, 404 (Fla. 2d DCA 2008) (holding that when the judgment was entered by a California state court that had both subject matter jurisdiction over the claim and personal jurisdiction over the complaining party, a Florida court is “generally obliged to give full faith and credit to [that] foreign state’s judgment”). When a foreign judgment is domesticated, it becomes enforceable as a Florida judgment. See Herman v. Herman, 658 So.2d 1182, 1182-83 (Fla. 4th DCA 1995) (holding that a New Jersey judgment, domesticated by order in Florida, “would have the same force and effect as a judgment originally entered by the courts of this state”). Thus the trial court did not err in finding that the Virginia judgment was entitled to full faith and credit.

However, upon the foreign judgment being domesticated, it does not follow that this particular order was not subject to modification after being given full faith and credit. We recognize that some orders — domestic or foreign — are not subject to modification, such as an order of equitable distribution in a dissolution of marriage action. See, e.g., Weiss v. Weiss, 973 So .2d 1247, 1250 (Fla. 2d DCA 2008) (“[A] Florida court must give full faith and credit to those valid provisions of a foreign divorce decree that are not subject to modification.” (citing Sackler v. Sadder, 47 So.2d 292, 293 (Fla.1950))). The trial court, upon giving the Virginia judgment full faith and credit, deemed the Virginia order a time-sharing judgment. It seems to be a “hybrid” time-sharing judgment because a time-sharing judgment is usually between parents rather than between a parent and a grandparent. Nevertheless, even as a hybrid time-sharing judgment, it is still subject to modification. See § 61.13(3), Fla. Stat. (2011) (“For purposes of establishing or modifying ... a time-sharing schedule, ... the best interest of the child shall be the primary consideration.”).

Our guide in this case is Wade v. Hirschman, 903 So.2d 928 (Fla.2005). Although Wade arose in the context of a modification of custody, time-sharing and custody are sufficiently analogous issues. In Wade, our supreme court laid out the test to be met by the movant seeking modification of a custody order:

[T]he movant [seeking modification of custody] must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Id. at 931 n. 2 (quoting Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003)); see also Straney v. Floethe, 58 So.3d 374, 375 (Fla. 2d DCA 2011) (reiterating that under Wade the test to be used in a modification proceeding is whether “(1) a substantial and material change in circumstances has occurred since the entry of the final judgment, (2) it is in the child’s best interest to modify custody, and (3) the change in circumstances was not reasonably contemplated when the trial court entered the original final judgment”). In applying this test to Mr. Fazzini’s petition, the trial court added a fourth factor— involuntariness — by finding that the stepparent adoption was “voluntary” and that therefore this voluntary act had precluded modification. Whether Mr. Fazzini’s voluntary acquiescence to Mrs. Fazzini’s adoption of his child was required by statute or not, voluntariness is generally applicable, and rarely at that, only in cases where the custodial parent has relocated. See, e.g., Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004); Bryant v. Meredith, 610 So.2d 586 (Fla. 2d DCA 1992). Adding this fourth factor to modification of a time-sharing judgment, whether a pure time-sharing judgment or a hybrid, is not supported by the statute or case law.

Although the trial court erred in adding a fourth factor, we agree with the trial court that the distrust between Mr. Fazzi-ni and Mrs. Davis was not a change in circumstances sufficient to ground modification. Cf Chapman v. Prevatt, 845 So.2d 976, 981 (Fla. 4th DCA 2003) (“That parents do not get along with one another is not a substantial or material change in circumstances which, without more, justifies a change of custody.”). Nevertheless, this factor is irrelevant to the disposition of this case. Mr. Fazzini established that there has been a substantial and material change in circumstances since entry of the Virginia judgment that was not reasonably contemplated, i.e., his remarriage, the stepparent adoption, and Mrs. Davis’s interference with Mr. Fazzini’s parental decision-making. But beyond these materially changed circumstances is the public policy of Florida, established in law, which subordinates grandparent visitation rights to the superior rights of a parent. See M.S. v. D.C., Jr., 763 So.2d 1051,1055 (Fla. 4th DCA 1999) (noting that in Florida “the grandparents’ interests, and even the best interest of the children, must yield to the fundamental right of privacy when demanded by the parent except where the state has a compelling interest, as when it acts to prevent demonstrable harm to the child”).

Mrs. Davis, as the maternal grandmother in this case, has virtually no rights as a grandparent in our state because of the privacy right’s protection enshrined in our state constitution. Art. I, § 23, Fla. Const. (“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”). In Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998), the Florida Supreme Court gave constitutional dimension to the operational impact of Florida citizens’ right to privacy in the interplay between parent and grandparent. Specifically, the court concluded that section 752.01(l)(a), Florida Statutes (1993), which authorized an award of grandparent visitation rights when one or both parents of the grandchild were deceased, was facially unconstitutional. 720 So.2d at 511. The court found that this statute infringed upon a parent’s protected liberty interest in decisions regarding the best manner to raise his or her children, and the government’s authority to intrude upon this fundamental right only arose upon a showing of demonstrable harm to the child. The supreme court’s precisely phrased rationale is applicable to Mr. Faz-zini’s case:

[T]he death of a biological parent may be a traumatic event for a child and ... a family may deal with that tragic event in many different ways. Some parents may decide that counseling is beneficial for the child; others may disagree. Some parents may decide that the child should spend more time with the deceased biological parent’s grandparents, siblings or close friends. Others may restrict those relationships. Interaction with the grandparents may help ease the pain of loss for both grandparent and child and, thus, be beneficial to the child. However, as we stated in Beagle [v. Beagle, 678 So.2d 1271 (Fla.1996)], “[i]t is irrelevant, to this constitutional analysis, that it might in many instances be ‘better’ or ‘desirable’ for a child to maintain contact with a grandparent.” [Id] at 1277 (quoting Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, 773-74 (1995)).

Von Eiff, 720 So.2d at 516. There has been no showing of legally cognizable harm in Mr. Fazzini’s case. Thus, Florida’s constitutional right of privacy and de-cisional law give to this parent the sole authority to determine what is best for his child, without interference from a grandparent.

Mr.. Fazzini’s preference, having constitutional support, is controlling on whether to allow Mrs. Davis visitation with his child. Our sister court’s holding in Forbes v. Chapin, 917 So.2d 948 (Fla. 4th DCA 2005), supports this. In Forbes, the parents had divorced and their child’s maternal grandmother had petitioned for and been granted visitation rights. Id. at 949. The father subsequently remarried, and his new wife adopted the child after the biological mother voluntarily consented to termination of her parental rights. Id. at 950. The appellate court “address[ed] the question of whether a parent’s agreement to visitation by a grandparent with the parent’s minor child waives the parent’s right to later enforce his constitutional privacy right to raise his child free from government intrusion and thus, prevents him from later revoking his agreement for visitation.” Id. at 951. The Fourth District answered this question in the negative. Id. The court concluded that

the father did not waive his constitutional privacy rights by entering into the original agreed order for grandparent visitation rights. We find that any right the grandmother may have had under the order did not survive the stepparent’s adoption based on the right to privacy guaranteed by article I, section 23 of the Florida Constitution....

Id. at 953. The same rule applies here.

Conclusion

In order to avoid interference with his parental rights vis-á-vis Mrs. Davis and the visitation rights she had acquired in Virginia, Mr. Fazzini properly domesticated the Virginia judgment and sought to modify it based on his substantial, material, and unanticipated change in circumstances. Based on article IV, section 1 of the Florida Constitution and Von Eiff, the trial court erred in denying Mr. Fazzini’s petition to modify the domesticated Virginia judgment.

Reversed and remanded with instructions to grant the petition to modify the domesticated judgment to terminate grandparent visitation.

KHOUZAM and BLACK, JJ., Concur.

      . Besides the problems already alluded to, Mrs. Davis had filed a motion in the Virginia court, later voluntarily dismissed, to have Mr. Fazzini held in contempt of court for interfering with her visits.

      . Neither party disputes that the trial court properly domesticated the Virginia judgment. See §§ 55.501-509, Fla. Stat. (2008) (the Florida Enforcement of Foreign Judgments Act).

      . Courts have previously used the term "su-persession” to describe the act of modifying a foreign judgment upon domestication in order to comply with Florida law. See, e.g., D.R.-T. v. O.M., 244 So.2d 752 (Fla. 2d DCA 1971) (holding that court-ordered support for an illegitimate child had to end when the child reached eighteen under Florida law despite a California judgment, domesticated in Florida, requiring support to continue until the child was twenty-one).

      . In Beagle v. Beagle, 678 So.2d 1271, 1272 (Fla. 1996), the supreme court had previously struck section 752.0 l(l)(e), Florida Statutes (1993), as being violative of the parent’s express constitutional right of privacy. Section 752.01(l)(e) stated that the grandparent had a right to visitation when the minor was "living with both natural parents who are still married to each other whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, and either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents.”