author: PER CURIAM. SHEPHERD, J.,

text:
    A.F., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D11-1784.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, for appellant.
    Karla Perkins, for appellee, Department of Children & Family Services.
    Before SHEPHERD, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

A.F., the mother, appeals a revised order adjudicating her daughter/the minor child, D.L., dependent. While the evidence in the record completely supports the finding of dependency, we conclude that the trial court’s order did not set forth with specificity the facts upon which the court’s finding of dependency was based, as required by Florida Rule of Juvenile Procedure 8.332(a) and section 39.507(6), Florida Statutes (2011). See E.B. v. Dep’t of Children & Families, 54 So.3d 1090 (Fla. 4th DCA 2011); M.S. v. Dep’t of Children & Families, 827 So.2d 1089,1090 (Fla. 1st DCA 2002); T.M. v. Dep’t of Children & Families, 813 So.2d 200, 201 (Fla. 5th DCA 2002); J.G. v. Dep’t of Children & Families, 801 So.2d 309 (Fla. 5th DCA 2001); J.C.G. v. Dep’t of Children & Families, 780 So.2d 965 (Fla. 5th DCA 2001).

Accordingly, we reverse the trial court’s Revised Adjudication Order as to the minor child with respect to A.F. and remand the case for the trial court to enter an order of adjudication that includes findings of fact based on the evidence presented at the adjudicatory hearing and is in compliance with rule 8.332(a), section 39.507(6).

Reversed and remanded with instructions.

SALTER and FERNANDEZ, JJ., concur.

SHEPHERD, J.,

concurring specially.

This is an appeal from a final order adjudicating A.F.’s minor child, D.F., dependent. The entirety of the order entered by the trial court reads as follows:

FINDINGS OF FACT: Based on the testimony presented by Dr. Sopeyin, Jackson Memorial Hospital Emergency Physician Pediatric Emergency Room Doctor, Dr. Caceda, University of Miami Psychiatrist, Stephanie Schein, Case Manager from His House, [A.F.], the mother and the maternal cousin, the child is at imminent risk of harm due to the mother’s emotional and mental health.

Florida Rule of Juvenile Procedure 8.332(a), Order Finding Dependency, states as follows:

(a) Finding of Dependency. In all cases in which dependency is established, the court shall enter a written order stating the legal basis for a finding of dependency,[] specifying the facts upon which the finding of dependency is based, and stating whether the court made the finding by a preponderance of the evidence or by clear and convincing evidence. The court shall include the dates of the adjudicatory hearing, if any, in the order.

The adjudication in this case was based on “imminency” of harm. A child may be adjudicated dependent on the basis of “im-minency” if a child is found by the court “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(15)(f), Fla. Stat. (2011).

The order in this case purports to find that D.F. was “neglected” within the meaning of section 39.01 of the Florida Statutes (2011). Section 39.01 of the Florida Statutes defines “neglect” as follows:

(44) “Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

(emphasis added). Only four witnesses testified in this particular case. All four are mentioned in the trial court’s “Findings of Fact.” The trial court does not discuss any of their testimony, even though it is clear from the record, as the trial court stated at the conclusion of the hearing:

Okay. I have no doubt that the mom loves her child and would not harm her child. But I’m going to find in favor of the State. I think the mom does need some guidance, some help[,] and I’m going to adjudicate the child dependent.
But I do find that the child is in imminent risk of harm due to the mom’s emotional and mental state.

Despite failing to discuss any of the testimony or to include any facts to support its finding, the trial court reached the legal conclusion the child was dependent simply by alluding to all of the testimony that “the child is at imminent risk of harm due to the mother’s emotional and mental health.”

Although there are facts that support the adjudication, there also are some facts which militate against an imminency finding. “While all imminent abuse or neglect is prospective in nature, all prospective abuse is not imminent within the meaning of the statute.” J.C. v. Dep’t of Children & Family Servs., 937 So.2d 184, 191 (Fla. 3d DCA 2006) (emphasis added). Thus, in all imminency cases the issue is whether “future behavior will adversely affect the child and can be clearly and certainly predicted.” In re P.S. v. Dep’t of Children & Family Servs., 825 So.2d 530, 531 (Fla. 2d DCA 2002) (emphasis added); Palmer v. Dep’t of Health & Rehab. Sersv., 547 So.2d 981, 984 (Fla. 5th DCA 1989); see also Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 (N.Y.2004) (“Imminent danger, however, must be near or impending, not merely possible”). In this case, we have no findings from the trial court, only an invitation to look into the record ourselves. Such an invitation is inadequate to uphold a finding of dependency. See E.B. v. Dep’t of Children & Families, 54 So.Sd 1090, 1090 (Fla. 4th DCA 2011) (reversing adjudication of dependency where the order in the case failed to comply with Florida Rule of Juvenile Procedure 8.332(a)); accord T.S. v. Dep’t of Children & Family Servs., 979 So.2d 1202, 1206 (Fla. 2d DCA 2008); see also J.T. v. Florida Dep’t of Children & Families, 48 So.3d 931, 932 (Fla. 1st DCA 2010) (reversing adjudication of dependency on the ground the order is devoid of any factual finding to support the trial court’s conclusion that the mother abused A.U. and lacks “the parenting skills necessary to provide the child with a safe and secure environment”).

I concur in the decision of the majority.

      . In a dependency case, oral findings in the record may not be relied upon to cure an otherwise defective written order. See Fla. R. Juv. P. 8.332(a). See also § 39.507(6), Fla. Stat. (2011) ("If the court finds that the child named in a petition is dependent, but chooses not to withhold adjudication or is prohibited from withholding adjudication, it shall incorporate that finding in an order of adjudication entered in the case, briefly stating the facts upon which the finding is made, and the court shall thereafter have full authority under this chapter to provide for the child as adjudicated.”).


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Marcial SOLIS; MSA Crestview II, LLC; Marsol Corporation; Crestview II, LTD.; and Marsol One, LLC, Appellants, v. Nydia LACAYO, Appellee.
    No. 3D11-2210.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Buchanan Ingersoll & Rooney, and Mark S. Auerbacher and Jennifer Olmedo-Rodriguez, Miami, for appellants.
    Infante Zumpano, and Theodore C. Mi-loch II, and Carlos A. Zumpano, Coral Gables, for appellee.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   SUAREZ, J.

Marcial Solis, MSA Crestview II, LLC, Marsol Corporation, Crestview II, Ltd., and Marsol One, LLC, (“Crestview”) appeal a final judgment in favor of Nydia Lacayo pursuant to a settlement agreement between the parties providing for the repayment of two promissory notes. We reverse on grounds that, at the time the final judgment was entered, the documentary stamp taxes had not been paid by Lacayo, and the notes were not enforceable pursuant to section 201.08(l)(a), Florida Statutes (2011).

On April 19, 2006, Crestview executed a promissory note in favor of Lacayo that was secured by personal and real property. On October 12, 2007, Crestview executed a second promissory note secured by personal and residential property. Crest-view failed to make the required payments, and on September 1, 2009, Lacayo filed a complaint for foreclosure and breach of guarantee. On May 6, 2010, the parties entered into a stipulation for settlement requiring Crestview to make monthly interest payments and by May 1, 2011, pay back the principal and interest on the. two notes. The parties also agreed to toll any statute of limitations on the foreclosure claims. On May 1, 2011, Crestview failed to pay the principal, and on May 18, 2011, Lacayo filed a motion for entry of final judgment and attorney’s fees pursuant to the stipulation. On July 20, 2011 the trial court entered an order approving the stipulation and entered final judgment. On July 27, 2011, Crestview filed its motion for rehearing and to vacate the final judgment, arguing that the documentary stamps had not been paid and that the notes could not be enforced. On August 4, 2011, Lacayo moved for and received a writ of garnishment, not objected to by Crestview, which was executed and served. On August 11, 2011, the trial court abated the action for twenty days to provide La-cayo time to pay and affix the documentary stamps. Lacayo paid the documentary stamps on August 24, 2011, after Crest-view had filed its notice of appeal on August 18, 2011.

On appeal, Crestview contends that the trial judge erred by entering a final judgment at a time when the documentary stamp taxes had not yet been paid on the notes. See § 201.08(l)(a). We agree and reverse.

Even though we find error in the trial court’s entering a final judgment when the documentary stamp taxes had not been paid, the taxes were paid shortly thereafter and within the twenty days in which the trial court had abated the action so that the taxes could be paid. Crestview does not deny that the notes have not been paid and can prove no damages as a result of the entry of judgment. The writ of garnishment, although entered prior to the time the action was abated, caused no damage, as the bank upon which it was served held no Crestview money subject to the writ. In sum, we are presented with the following: a final judgment against Crestview, the promisor of two promissory notes, which does not dispute that the notes have not been paid; the final judgment entered prior to purchase of documentary stamps, purchased and affixed within the time allocated by the trial court; a writ of garnishment, not objected to by Crestview, executed and served upon a bank which held no funds to garnish; and an appellant, Crestview, which cannot establish damages caused by the entry of the final judgment prior to the purchase of the documentary stamps. Therefore, although we reverse the trial court, on remand, we order that the final judgment shall be reinstated nunc pro tunc to the date that the documentary stamp taxes were paid, August 24, 2011.

Reversed and remanded.

      . In an action to enforce a promissory note, when the trial court discovers that the documentary taxes have not been paid, the trial court must either dismiss the action without prejudice, or, upon motion, may abate the action to enable the party to purchase and affix the documentary stamps. Somma v. Metra Elecs. Corp., 727 So.2d 302 (Fla. 5th DCA 1999).


author: SHEPHERD, J.

text:
    M.G., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D12-48.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Rehearing Denied April 27, 2012.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Appellate Counsel, for the Department of Children <& Family Services.
    Before SHEPHERD, ROTHENBERG, and EMAS, JJ.
   SHEPHERD, J.

This is an appeal by M.G., a mother, of a trial court order terminating the Department of Children and Families’ (the Department) protective supervision over her minor child, R.G., and placing the child in permanent guardianship of the minor child’s older half-sister and her half-sister’s boyfriend. Although the record contains sufficient evidence to support the trial court’s ruling, we agree with the mother the written order is insufficient to meet the requirements of section 39.6221(2), Florida Statutes (2011), in two respects.

When a trial court places a minor child in a permanent guardianship in lieu of reunification or adoption, section 39.6221(2) of the Florida Statutes requires the trial court’s written order to:

(a) List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact; [and]
(c) Specify the frequency and nature of visitation or contact between the child and his or her parents....

§ 39.6221(2), Fla. Stat.

The guardianship order in our case is a form order, with which the trial court filled in the blanks. Regarding the reasons why the mother is not fit to care for the child or why reunification is not possible, pursuant to section 89.6221(2)(a), the form states:

Reunification with the parent(s) at this time would be contrary to the welfare and not in the best interest of the child(ren). The parents are not fit to care for the child(ren) and reunification is not possible because of the circumstances from which the court previously based its finding that the children are dependent in the order of adjudication, and in addition (input the specific reasons):

No reasons are stated.

Regarding the frequency and nature of visitation between the mother and the minor child, the order on appeal states:

Supervised visitation with the child(ren). The visitation shall be supervised at all times by the permanent guardian or an adult approved by the Department. The visitation shall occur on a schedule agreed by the parties and at a place agreed by the parties. The frequency of the visitation shall be:

The trial court added “at the custodians’ sole discretion.”

The Department concedes the trial court’s order does not meet the statutory requirements of section 39.6221(2)(a). See R.T., Sr. v. Dep’t of Children & Families, 27 So.3d 195, 196-97 (Fla. 5th DCA 2010) (finding similar language in the trial court’s order legally insufficient “because the order does not refer to specific findings of fact set forth in the trial court’s dependency order nor contain separate findings of fact regarding the issue of reunification”); see also In re J.S., 18 So.3d 712, 714 (Fla. 2d DCA 2009). However, the Department contends the mother waived her right as to section 39.6221(2)(c) because of a desire to be alleviated from any responsibilities relating to the minor child. The trial court made no such findings and there is no record evidence to support a knowing and voluntary waiver of visitation by the mother. Accordingly, the trial court’s order placing the frequency of visitation at the custodians’ sole discretion was error. See In re J.L.R., Jr., 64 So.3d 1283, 1284 (Fla. 2d DCA 2011) (finding the plain language of section 39.6221(2)(c) mandates a trial court to establish a specific visitation schedule rather than leaving visitation to the discretion of either of the parties).

Reversed and remanded for entry of an order in compliance with the requirements of section 39.6221(2), Florida Statutes.


author: LAGOA, J.

text:
    Frances L. LOSH, Appellant, v. Carlin McKINLEY, Appellee.
    No. 3D11-1575.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Ronald G. Baker, Coral Gables, for appellant.
    Simon and Simon and Joy B. Spill, Miami; Arnaldo Velez, Coral Gables, for ap-pellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   LAGOA, J.

Frances L. Losh (“Losh”) appeals the trial court’s order determining limited incapacity. We reverse and direct the trial court to restore Losh to her full capacity.

I. FACTUAL HISTORY

Losh is a ninety-three-year-old widow. She has one child, the appellee Carlin McKinley (“McKinley”), who lives in Washington State. In the fall of 2010, Losh fell at home and broke her tailbone. She believed that she had bruised her tailbone and did not think it was necessary to see her doctor. She continued her normal daily activities, but subsequently was hospitalized. Losh returned to her home in late December 2010. Once home, Losh had twenty-four-hour help from a certified nursing assistant. Losh also paid for McKinley to come to Miami and help her.

McKinley spent approximately ten days in Miami, but refused to stay in Losh’s home. During this period, Losh was in a somewhat weakened condition after having spent the last sixty-plus days in a hospital or rehabilitation facility. She also was taking a number of different medications.

On January 5, 2011, McKinley filed a Petition to Determine Incapacity. The court appointed a three-member examining committee comprised of David Eeha-varria, Ph.D., Addys Prieto, Psy.D., and Lloyd Miller, M.D. Both Dr. Prieto and Dr. Miller recommended no guardianship, having found Losh “quite able to make her own decisions” and with her “insight and judgment intact,” respectively. Dr. Echa-varria was the only committee member to find Losh “partially oriented.”

On February 9, 2011, McKinley moved to strike the examining committee’s report. It is unclear from the record if this motion was heard or ruled on by the trial court or the magistrate. Nonetheless, it is clear from the record that on March 7, 2011, the trial court entered an order discharging Dr. Miller, as a conflict of interest arose, and appointing Dr. Alfred Jonas, M.D. as the third examining committee member. As a result, the trial court entered an order for an amended second evaluation.

On March 4, 2011, Dr. Prieto re-examined Losh and recommended no guardianship. In her report, Dr. Prieto noted that Losh was oriented as to person, place and time. She was able to name three major current event issues and reported that she managed her own financial affairs. Medically, Losh reported a decrease in her falls, improved health, and continual twenty-four-hour care. The report also noted that there were no apparent hallucinations or delusions, and Losh’s judgment and insight were good.

Dr. Echavarria re-examined Losh on March 5, 2011, and recommended a limited guardianship. In his report, Dr. Echavar-ria noted that Losh was oriented with mild deficits of cognition and judgment. She was able to provide basic information and was able to name the president. He reported that she was unable to name her medications or reasons for taking them, and related “delusions” about McKinley. Dr. Echavarria also noted that Losh needs help in managing finances and affairs.

Dr. Jonas examined Losh on March 20, 2011. In his report, he recommended a limited guardianship only as to Losh’s ability to manage property or make gifts. In his report, Dr. Jonas noted that Losh was alert, fully oriented, “very well aware of circumstances,” and that she had excellent general knowledge. Losh’s memory was generally excellent. Dr. Jonas noted that Losh knew her monthly income and expenses but she could not remember or rather, would not divulge the names of her banking institutions. Dr. Jonas also noted that Losh disapproved of McKinley’s handling of her financial affairs.

At a hearing on April 27, 2011, the trial court heard the testimony of Dr. Echavar-ria, Dr. Prieto, and Dr. Jonas. The court also heard the testimony of McKinley, and two bankers — Amy Vargas and Mireya Batista.

When the hearing resumed on May 3, 2011, Losh testified in detail about her family, personal finances, property, health status, and prescribed medications. Specifically, Losh testified regarding her three different bank accounts, why she had money in three separate banks rather than one, and why she chose money market accounts over certificates of deposit. She described all of her real estate, and explained that she did not carry insurance on some of the properties because “I have enough money to cover any damage.” She testified that on occasion she has someone else write a check for her because her hands can shake too much. She knew how much her monthly expenses are and what she pays each of her nurses or caretakers. She reconciles her checkbook monthly, and indeed, even keeps a separate ledger, as she has for the past sixty-four years, of every payment that she makes. She also was able to describe the medicines that she takes, and her medical conditions. As to her daughter, McKinley, Losh described the large sums of money she has given to her in the past and testified that every time McKinley has asked her for money she has given it to her.

At the conclusion of the hearing, the trial court expressed concern about Losh’s “vulnerability to what we call undue influence” and further stated that “there’s some evidence that there might be an issue with your ability to, you know, handle everything that you have to going forward.” The trial court thereafter entered its order determining limited incapacity.

As examples of Losh’s incapacities, the trial court in its written order cited to the fact that Losh delayed medical treatment for her broken tailbone and for her cataracts. The trial court also found that Losh has a diminished ability to manage her finances and assets. In reaching this conclusion, the trial court relied upon the following facts: on more than one occasion, she has been late in paying her credit card bill; she has intentionally not carried liability insurance on improved, unencumbered real estate; she keeps money in lower interest rate money market accounts rather than seeking the higher interest rate of a certificate of deposit and other people sometimes write checks for Losh to sign, and once someone other than Losh signed a check.

As a result, the trial court determined that Losh is incapable of exercising almost all of her rights, including the ability to manage property or to make any gift or disposition of property, and her ability to consent to invasive medical and mental health treatments. The trial court only allowed Losh to retain her right to vote, determine her residency, spend up to $1,500, and fire her caregivers. Any replacement caregivers, however, would have to be hired and supervised by the guardian.

II. ANALYSIS

Under the Florida guardianship statutes, before depriving an individual of all of his or her civil and legal rights, “the individual must be incapable of exercising his rights at all, whether wisely or otherwise.” McJunkin v. McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005). The record shows that here, the evidence presented to the trial court fell far short of the clear and convincing standard necessary to support a finding that Losh is incapable of exercising her rights. See § 744.331(5)(c), Fla. Stat. (2011) (“[T]he partial or total incapacity of the person must be established by clear and convincing evidence.”); Graham v. Fla. Dep’t of Children & Families, 970 So.2d 438 (Fla. 4th DCA 2007) (reversing and remanding with directions to dismiss guardianship proceeding where record evidence failed to establish ward’s incapacity by clear and convincing evidence); LeWinter v. Guardianship of LeWinter, 606 So.2d 387 (Fla. 3d DCA 1992) (reversing and remanding with directions to dismiss guardianship proceeding where order determining incapacity was unsupported by clear and convincing evidence).

Dr. Prieto found Losh fully oriented to person, place, and time, and also aware of the legal proceedings concerning her. Indeed, Dr. Prieto noted that upon this reevaluation she found no deterioration in cognitive function, and that Losh appeared “more relaxed, wittier and physically stronger.” Her report recommended removing none of her rights. And although Dr. Jonas recommended a limited guardianship, he recommended that her rights be restricted only as to her right to manage property or to make any gift or disposition of property. The most convincing evidence of Losh’s capacity, however, was the testimony of Losh herself, who revealed herself to be coherent and fully aware of her circumstances, both financially and medically.

Moreover, the bases stated by the trial court in its order determining limited incapacity are completely insufficient to justify a finding of incapacity. For example, it is not indicative of incapacity for a ninety-three-year-old woman to have her money in liquid money market accounts rather than long-term certificates of deposit subject to penalties for early withdrawal. Nor is the fact that Losh chooses not to carry liability insurance on some of her unencumbered properties, or that she sometimes asks a caregiver to write out a check for her, competent evidence to support the order.

The trial court appears to have been motivated out of a concern for Losh’s ability to make decisions in the future because of various family issues and the fact that she is surrounded by caregivers, rather than family. While the trial court’s action was well intentioned, it is nevertheless true that “[i]n our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights.” In re Maynes-Turner, 746 So.2d 564, 565 (Fla. 3d DCA 1999) (quoting In re McDonnell, 266 So.2d 87, 88 (Fla. 4th DCA 1972)).

Because there was not clear and convincing evidence of Losh’s incapacity sufficient to justify the removal of her rights to the extent contained in the order determining limited incapacity, we reverse and remand with instructions to restore Losh to her full capacity and dismiss the guardianship proceeding.

Reversed and remanded.

      . There is no transcript of the April 27th hearing. The record on appeal contains the medical records of Dr. Castanes, dated from a period of March 2, 2010, through January 27, 2011. Dr. Castanes noted that Losh was alert, and oriented as to person, place and time. He did not find any distress or cognitive disorder.


author: PER CURIAM.

text:
    January MARTIN, individually and on behalf of a class of all others similarly situated, Appellant, v. MAROONE CHEVROLET OF DELRAY, LLC., a Florida limited liability corporation, and AutoNation Financial Services Corp., a foreign corporation, Appellees.
    No. 4D10-5006.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied May 30, 2012.
    Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Offices of Richard Ivers, Coral Springs, for appellees.
   PER CURIAM.

After January Martin and her attorney failed to attend a status conference, the trial court entered an order striking Martin’s pleadings. The court found, inter alia, that Martin and her attorney refused to appear, that this was part of a pattern of behavior, and that Maroone Chevrolet and AutoNation Financial Services Corp., the defendants below, were prejudiced. Because the written order does not make it apparent that the court considered all the factors set out in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), we reverse. See Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422 (Fla. 4th DCA 2011); Cook v. Custom Marine Distrib., Inc. 29 So.3d 462 (Fla. 4th DCA 2010). The remaining claim raised by Martin has no merit and we do not address it.

Before a court may strike a party’s pleadings as a sanction, the court must consider the following factors:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncomplianee; and 6) whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818.

The court must also consider whether a lesser sanction would be a “viable alternative.” Id. Whether the litigant was involved in the misconduct is a factor to be weighed in the Kozel analysis, but does not weigh more heavily than the other factors. See Ham v. Dunmire, 891 So.2d 492, 497 (Fla.2004). “The Kozel criteria with an emphasis on whether prejudice has occurred control.” Id. at 502.

Upon remand, the court must make the required findings, and explain the nature of the prejudice to the defendants. The court may again strike the pleadings or impose a lesser sanction after considering the Kozel factors and upon appropriate findings. Otherwise, the court must vacate the final judgment and the order striking the pleadings.

Reversed and remanded for proceedings in accordance with this opinion.

POLEN, HAZOURI and LEVINE, JJ„ concur.


text:
    Daniel TULLOCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3724.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Daniel Tulloeh, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Daniel Tulloeh appeals the summary denial of an eleven point post-conviction motion. See Fla. R.Crim. P. 3.850. We reverse the denial of one point so that the appellant may be afforded a reasonable amount of time in which to amend the claim under Spera v. State, 971 So.2d 754 (Fla.2007).

Following a jury trial, Tulloeh was convicted of Trafficking in Heroin (over 28, under 30 grams) in violation of section 893.035, Florida Statutes (2003). He was sentenced to twenty-seven years and six months imprisonment.

In Ground 7, Tulloch alleged that trial counsel was ineffective for failing to investigate an available defense witness: Detective Taranu. He asserted that this officer would have contradicted the officer who testified at trial — Detective Land — where Detective Land stated that he read Tulloch his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State argued that in order to succeed on an ineffectiveness claim for failing to call a particular witness, Tulloch must allege what testimony he would have elicited, that he was available to testify at the time of the hearing, and how he was prejudiced. See Spera, 971 So.2d at 756. It asserted that Tulloch did not meet all of the elements because he failed to identify the witness’s availability and how counsel’s failure to call the witness prejudiced the outcome of his case. The State concedes that Tulloch should be given a chance to amend his legally insufficient claim.

Because the trial court’s order does not refute Tulloeh’s claim, we remand for the trial court to allow him a reasonable amount of time in which to amend this ground. We affirm the remaining issues without comment.

Reversed in part; Affirmed in part; Remanded.

TAYLOR, CIKLIN and CONNER, JJ„ concur.


text:
    Torrance BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3143.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Smith, 586 So.2d 1237 (Fla. 2d DCA 1991).

WARNER, STEVENSON and GROSS, JJ., concur.


author: MAY, C.J.

text:
    Derrick James FLANNIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3107.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction and sentence for robbery with a deadly weapon. He raises two issues on appeal. First, he argues the trial court abused its discretion in requiring him to show his tattoo during the trial at the request of the State because his identity was not at issue. Second, he argues the trial court erred in admitting his post-arrest statements. We find no error and affirm.

The robbery took place during a transaction to sell the victim’s AK-47 rifle. When the victim and his friend arrived at the designated location, they were approached by three men with guns. The victim indicated that the defendant watched as the other two men threatened him and his friend. The friend testified that the defendant ordered them to get down on the ground or he would kill them.

The victim’s friend identified the defendant as the person who arranged the sale and remembered that the defendant had a tattoo that partially depicted the number seven. The State requested the defendant to reveal his tattoo. The defense objected, arguing that because identity was not an issue, it was unnecessary to reveal the tattoo that could cause the jury to believe the defendant was part of a gang. The trial court overruled the objection.

“A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Essex v. State, 917 So.2d 953, 956 (Fla. 4th DCA 2005).

This case is similar to Jones v. State, 748 So.2d 1012 (Fla.1999). There, the defendant made a similar argument against revealing a tattoo. Our supreme court explained, “[tjhere was no suggestion ever made to the jury by the State that the spider web tattoo was linked to racism, and it was only referred to before the jury as a distinctive characteristic assisting the witnesses in identifying the defendant.” Jones, 748 So.2d at 1028.

For the same reason, we find no error in the trial court’s ruling in this case. As in Jones, a witness remembered a distinctive tattoo on the defendant’s body. Although the tattoo could have indicated gang involvement, the State made no reference to this possibility.

Next, the defendant argues the trial court abused its discretion in admitting his videotaped statements concerning an ongoing dispute between groups of people, which led to the robbery of the gun. The State responds that because the defense failed to make a contemporaneous objection, the issue has not been preserved. Alternatively, the State argues the trial court properly admitted the statements because they were relevant to demonstrate motive for the crime.

We agree that the defense objection was not contemporaneous. Nevertheless, we find no error in the admission of the defendant’s statements. As the State argues, they were relevant to show motive for the robbery.

Affirmed.

DAMOORGIAN and CONNER, JJ., concur.


text:
    Ronel Orlando WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3034.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Scott v. State, 66 So.3d 923, 930 (Fla.2011) (“[U]nder the ‘invited response’ doctrine, the State is permitted to emphasize uncontradicted evidence for the narrow purpose of rebutting a defense argument since the defense has invited the response.”) (citation and other internal quotations omitted).

TAYLOR, CIKLIN and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Appellant, v. FIRST SEALORD SURETY, INC. and Current Builders of Fla., Inc., Appellees.
    No. 4D10-4836.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied May 23, 2012.
    Vincent F. Vaccarella and Jordan M. Keuseh of Vincent F. Vaccarella, P.A., Fort Lauderdale, for appellant.
    John J. Shahady of Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort Laud-erdale, for appellee First Sealord Surety, Inc.
   DAMOORGIAN, J.

Appellant, Travelers Casualty and Surety Company of America (“Travelers”), appeals an amended final judgment entered against it. The judgment was based upon a supersedeas bond issued by Travelers to secure payment of a judgment on an attorney’s fees award entered against its principal, Current Builders of Florida, Inc. On appeal, Travelers argues that the trial court misapplied the terms of the bond and the applicable law. Alternatively, Travelers argues that, at a minimum, the judgment should be reversed with instructions to enter an amended judgment correcting a mathematical error in the amount. The judgment currently reflects an amount of $89,385.66 instead of the amount the trial court intended to award, which was the bond’s penal sum of $87,385.66.

We affirm without discussion the trial court’s application of the law to the facts. However, Travelers is correct as to the mathematical error and the trial court’s findings that the bond’s penal sum is $87,385.66. Accordingly, we remand for the trial court to correct the sum of the judgment against Travelers to reflect the penal sum of the bond in the amount of $87,385.66.

Affirmed in Part, Reversed in Part and Remanded.

CIKLIN and GERBER, JJ., concur.


text:
    Richard LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2446.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Demarious CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3345.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear and Sue-Ellen Kenny, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Alan Dale OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1809.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Alan Dale Owens, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

The Defendant, Alan Dale Owens, seeks review of an order denying his motion for postconviction relief and/or motion to correct illegal sentence filed pursuant to Rule 3.850 and/or Rule 3.800(a), Fla. R.Crim. P. For the reasons stated below, we conclude Defendant is not entitled to relief but we remand for the trial court to correct the judgment.

The Defendant filed a motion to clarify judgment on September 11, 2003, claiming that the judgment and sentence should be corrected because it allegedly states he was adjudged guilty of robbery while carrying a deadly weapon when it should state that he was guilty of robbery with a weapon. We disagree.

The verdict provided by the Defendant in the appendix shows that he was found guilty in count one of robbery while carrying a deadly weapon and guilty in count two of unlawful possession of a firearm while engaged in robbery. The judgment, however, states he was convicted of “robbery, etc.” and failed to include the fact that he was found guilty of robbery with a deadly weapon. When the judgment does not correspond to the verdict, the remedy is to remand so that the judgment can be corrected to reflect the verdict. Moore v. State, 561 So.2d 1273, 1275 (Fla. 4th DCA 1990); Paulk v. State, 376 So.2d 1213 (Fla. 3d DCA 1979).

Defendant is correct that the judgment and sentence on count one should be corrected to conform to the verdict. However, the correction required is not the one sought by Defendant. The judgment should be corrected from “robbery, etc.” to robbery with a deadly weapon.

Remanded with instructions.

      . This Court has taken judicial notice of the appendix filed in Owens v. State, No. 3D04-2782.

      . The Defendant does not raise any issue with regard to count two. The trial court suspended entry of sentence on count two.


text:
    Mark COATS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST CO., etc., Appellee.
    No. 3D11-1392.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Roberta G. Mandel; Daryl L. Jones, for appellant.
    Kahane & Associates, and Robert Scott Kahane and H. Michael Muñiz, Plantation, for appellee.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Godfrey v. Reliance Wholesale, Inc., 68 So.3d 930 (Fla. 3d DCA 2011).


text:
    William PAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-695.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    William Page, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Ileana QUINONEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-265.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Ricardo Corona, Coral Gables, and Sa-har Razzaghi, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Leonardo CANCIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-631.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Rehearing Denied May 18, 2012.
    Wayne Kruer, Key West, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Viktoria BENKOVITCH and Jack Kachkar, Appellants, v. AURORA LOAN SERVICES, LLC, and Mayfield Condominium Association, Inc., Appellees.
    No. 3D11-1936.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Viktoria Benkovitch and Jack Kachkar, in proper persons.
    Toyne & Mayo, and Ross B. Toyne, Michael Schimmel, Miami, and Alberto J. Alonso, for appellees.
    Before SUAREZ, ROTHENBERG and FERNANDEZ, JJ.
   SUAREZ, J.

Affirmed. See Fla. R. Civ. P. 1.170(g), 1.080(b).


author: ROTHENBERG, J. SHEPHERD, J.,

text:
    Jorge Luis RIERA, Appellant, v. Ana Margarita RIERA, Appellee.
    Nos. 3D10-3441, 3D10-2917.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Stack Fernandez Anderson & Harris, P.A., and Gregory Anderson and Sammy Epelbaum, for appellant.
    Law Offices of Isenberg and Nabat, P.A., and Douglas Isenberg and Deborah Nabat, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ, and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The former husband, Jorge Luis Riera (“Father”), appeals two post-dissolution orders — (1) an order enforcing the parties’ Marital Settlement Agreement (“MSA”), requiring the Father to reimburse the former wife, Ana Margarita Riera (“Mother”), for payments she made for their adult son’s college expenses, and requiring the Father to pay $800 per month for the son’s college expenses starting October 1, 2010 (“Enforcement Order”) (Case No. 3D10-2917); and (2) an order holding the Father in civil contempt for willfully disregarding the Enforcement Order (“Contempt Order”) (Case No. 3D10-3441). We reverse the orders under review, and remand for further proceedings.

In 1992, the Father and Mother, whose son was born in November 1991, entered into the MSA, which was incorporated into the final judgment of dissolution of marriage. The MSA states in pertinent part:

3. Child Support: The [Father] shall pay the [Mother] an amount as set out below to assist with the support of the parties’ minor child.
d. That the parties shall equally pay for the cost of the minor child’s college tuition, books, supplies and any and all other related expenses. The parties will purchase the Florida four (4) years Prepaid College Program the cost of the program shall be equally paid for by both parties.

In July 2010, the Mother filed a “Verified Motion for Contempt to Compel and to Enforce Marital Settlement Agreement and Motion to Order [Father] to Pay Monthly College Expense,” alleging that, pursuant to Paragraph 3.d. of the MSA, the Father is required to pay 50% of their son’s college expenses at George Washington University (“GW”), which for the 2010-2011 school year equals $850 monthly, after applying loans, grants, and the Florida Prepaid College Program to the expenses.

At the hearing on the Mother’s verified motion, the Father, an attorney, represented himself. He explained that when the parties entered into the MSA, they intended that their son would attend a public university in Florida, and therefore, in the MSA, they voluntarily agreed to purchase the Florida Prepaid College Program. Although the parties’ son was accepted to Florida State University and awarded a 100% Bright Futures Scholarship, he chose to attend GW without consulting the Father. As to his financial ability to pay, the Father explained that, although he earns $135,000 per year and his current wife is employed as a school teacher, he cannot afford to make such a large monthly payment towards his son’s college expenses because his two daughters attend a private school, he pays $4500 monthly on his first mortgage, he has a second mortgage, and his home is under water.

Following the hearing, the trial court entered the Enforcement Order, finding that the MSA does not place any restrictions on which college the son can attend, and that the Father’s “interpretation that the Florida Pre-Paid College Fund reference means that the child would attend a Florida school is flawed.” (emphasis in original). The trial court, however, found that the Father’s failure to pay was not willful as he believed that he was not required to pay. The trial court ordered the Father to reimburse the Mother, and to start making monthly payments of $800 as of October 1, 2010. The trial court denied attorney’s fees, but stated that it would consider assessing fees against the Father if enforcement actions were necessary. The Father timely appealed the Enforcement Order.

In October 2010, the Mother filed a “Second Verified Motion for Contempt to Enforce Order Granting [Mother’s] Verified Motion for Contempt, to Compel and to Enforce Marital Settlement Agreement,” asserting that the Father failed to make any of the payments required in the Enforcement Order, although he has the ability to comply. The trial court conducted a hearing in December, and entered the Contempt Order, finding the Father in civil contempt for willfully and flagrantly violating the trial court’s Enforcement Order; sentencing the Father to sixty days in jail, but allowing him to purge himself of the contempt by paying $5600 to the Mother plus $1500 in attorney’s fees; and ordering the Father to surrender by January 25, 2011, unless he pays the purge amount. The Father timely appealed the Contempt Order, and this Court subsequently stayed both orders under appeal.

The Father contends that the trial court erred by finding that, pursuant to paragraph 3.d. of the MSA, he must pay his adult son’s tuition and expenses at a private, out-of-state university. As we conclude that the MSA contains a latent ambiguity, we reverse the Enforcement Order and remand for an evidentiary hearing to allow the trial court to determine the intent of the parties when they executed the MSA.

A marital settlement agreement is “subject to interpretation like any other contract.” Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996); see also Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980) (“Provisions of a property settlement agreement are interpreted by courts like any other contract.”). Therefore, this Court is on “equal footing” with the trial judge in interpreting the MSA. Ballantyne, 666 So.2d at 958; Geiger v. Geiger, 632 So.2d 693, 695 (Fla. 1st DCA 1994).

“A latent ambiguity arises when the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings.” GE Fanuc Intelligent Platforms Embedded v. Brijot Imaging Sys., Inc., 51 So.3d 1243, 1245 (Fla. 5th DCA 2011) (citing Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998)); see also Drisdom v. Guarantee Trust Life Ins. Co., 371 So.2d 690, 693 n. 2 (Fla. 3d DCA 1979) (“A latent ambiguity has been defined as an ambiguity where the language employed in the policy is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.”) (citing Ace Electric Supply Co. v. Terra Nova Electric, Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1973)). When a contract contains a latent ambiguity, the trial court “must hear parol evidence to interpret the writing properly.” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting RX Solutions, Inc. v. Express Pharmacy Servs., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999)); see also Drisdom, 371 So.2d at 693 (holding that “extrinsic evidence such as parol evidence is permissible to explain” latent ambiguities).

Here, paragraph 3.d. of the MSA is “intelligible” but it is not so clear, and the extrinsic facts and evidence suggest differing interpretations. The first sentence of paragraph 3.d. provides “[t]hat the parties shall equally pay for the costs of the minor child’s tuition, books, supplies and any and all other related expenses.” (emphasis added). The MSA specifically lists tuition, books, and supplies, but does not list room and board as a covered expense. Because room and board are material, substantial expenses, you would expect them to be listed as covered expenses if they were to be included, especially, since books and supplies, which are not as substantial, are listed. It thus becomes paramount to determine whether “any and all other related expenses” refers to expenses related to tuition, books, and supplies, or whether it refers to all related expenses associated with attending college. For example, does it include travel expenses, insurance, spending money, etc.? Thus, the MSA is not clear, is subject to differing interpretations, and requires clarification of the parties’ intent.

Additionally, “[i]f a contract fails to specify the rights or duties of the parties under certain conditions or in certain situations, then the occurrence of such condition or situation reveals an insufficiency in the contract not apparent from the face of the document.” Hunt v. First Nat’l Bank of Tampa, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980). This insufficiency is also considered a latent ambiguity, and as already stated, permits the trial court to consider parol evidence to determine what the parties would have included in their contract had they anticipated the occurrence they overlooked. Id. (citing Morton v. Morton, 307 So.2d 835 (Fla. 3d DCA 1975)).

Paragraph 3.d. of the MSA clearly contains the type of insufficiency contemplated in Hunt and Morton. The MSA fails to address the duties of the parties under certain material conditions and circumstances. Specifically, it fails to address what the parties’ responsibilities are in given situations, such as here where their son opted to attend an expensive out-of-state private school rather than an in-state public university that offered him a substantial scholarship in addition to the funding provided by the Florida Prepaid College Program that his Mother and Father paid into pursuant to the MSA. It is understandable that, given the circumstances of this case, the parties did not contemplate the situation presented here. The parties were married for a very short period of time and their marriage was dissolved when their son was only ten months old. Both parents attended a Florida public university, and the Father testified it was anticipated that their son would do the same, which is why the MSA required them to fund the Florida Prepaid College Program.

The MSA also does not address how long the parties must pay for their son’s college expenses or provide for any modification based on an ability to pay or any disparity in the resources of the parties. None of these occurrences were anticipated or included in the MSA, thus creating an insufficiency, or latent ambiguity which can only be resolved in the introduction of parol evidence regarding the intent of the parties.

Although we have reversed the Enforcement Order, we nonetheless address the Contempt Order which was based on the Father’s failure to comply with the Enforcement Order. The trial court erred by holding the Father in civil contempt of court for failing to comply with the Enforcement Order, and additionally erred in ordering that the Father be incarcerated absent the payment of the purge amount specified by the trial court.

Any duty a parent has to pay an adult child’s college expenses is moral rather than legal. Grapin v. Grapin, 450 So.2d 853, 854 (Fla.1984). However, “[w]hen parties to a dissolution proceeding agree to educate their child after the child reaches [the] age of majority, the agreement is valid and may be enforced by either party to the agreement.” Winset v. Fine, 565 So.2d 794, 795 (Fla. 3d DCA 1990); see also Madson v. Madson, 636 So.2d 759, 761 (Fla. 2d DCA 1994) (“Even though most financially able parents willingly assist their adult children in obtaining a higher education, any duty to do so is a moral rather than a legal one, absent either a finding of legal dependence or a binding contractual agreement by the parent to pay such support.”). Where a party is obligated to pay his adult child’s college expenses pursuant to a marital settlement agreement, the obligation “is not child support, but rather a contractual obligation arising from the marital settlement agreement.” Sutton v. Sutton, 701 So.2d 370, 372 (Fla. 2d DCA 1997) (emphasis added). Thus, contempt is not available to enforce the parties’ contractual obligation to pay their adult son’s college expenses. Nicoletti v. Nicoletti, 901 So.2d 290, 292 (Fla. 2d DCA 2005) (“A contractual duty to pay for a child’s college expenses cannot be enforced by contempt.”); Carlton v. Carlton, 816 So.2d 254, 256 (Fla. 2d DCA 2002) (“[C]ontempt is not an available remedy to enforce a marital settlement agreement’s obligation for one parent to pay college expenses.”); Southard v. Southard, 756 So.2d 251, 253 (Fla. 5th DCA 2000) (holding that contempt is not proper vehicle to enforce father’s contractual obligation to pay adult child’s college expense; rather the proper remedy is a “judgment enforceable by ordinary civil proceedings”); cf. Zolonz v. Zolonz, 659 So.2d 451, 453 (Fla. 4th DCA 1995) (holding that “the court’s contempt powers are available to enforce the father’s obligation to pay contractual support after the majority of the child” because “the father expressly agreed to the contempt remedy in the property settlement agreement”).

Here, the MSA required that the parties equally pay their son’s “college tuition, books, supplies and any and all other related expenses.” Prior to enrolling at GW, the son had reached the age of majority, and therefore, the Father’s obligation was a contractual obligation that cannot be enforced by contempt. Nicoletti, 901 So.2d at 292; Carlton, 816 So.2d at 256; Southard, 756 So.2d at 253. Therefore, even if we had affirmed the Enforcement Order, we would have reversed the Contempt Order.

Additionally, the trial court erred in ordering that the Father be incarcerated unless he paid the purge amount specified in the Contempt Order without making any findings as to the Father’s ability to comply with this provision in the Contempt Order. See Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985) (“[I]ncarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door.”).

Reversed and remanded for further proceedings.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD, J.,

concurring in part, dissenting in part.

I agree with the majority that the former husband, Jorge Luis Riera, cannot be held in contempt for failing to comply with a contractual obligation to pay college expenses. See Nicoletti v. Nicoletti, 901 So.2d 290, 292 (Fla. 2d DCA 2005) (“A contractual duty to pay for a child’s college expenses cannot be enforced by contempt.”); see also Gersten v. Gersten, 281 So.2d 607, 609 (Fla. 3d DCA 1973). However, I would affirm the decision of the trial court that the former husband is required to pay his aliquot share of his son’s expenses to attend George Washington University.

The former husband contends the agreement contains a latent ambiguity. This is not so. Under Florida law, the initial determination of whether a contract term is ambiguous is a question of law. See Escobar v. United Auto. Ins. Co., 898 So.2d 952, 954 (Fla. 3d DCA 2005); Team Land Dev., Inc. v. Anzac Contractors, Inc., 811 So.2d 698, 699-700 (Fla. Sd DCA 2002). “A latent ambiguity arises when a contract on its face appears clear and unambiguous, but fails to specify the rights and duties of the parties in certain situations.” Jenkins v. Eckerd Corp., 913 So.2d 43, 52-53 (Fla. 1st DCA 2005) (emphasis added); see also Whitfield v. Webb, 100 Fla. 1619, 131 So. 786, 788 (1931). This agreement covers all situations. In the first sentence of paragraph 3.d., the parties agreed to “equally pay for the cost of the minor child’s college tuition, books, supplies and any and all other related expenses.” As the trial court correctly stated, this provision “places no restriction on where the minor child shall attend college.” The second sentence, as understood by the parties, obligated them to purchase a four-year pre-paid college tuition plan, which they did. Applying plain meaning to plain language, it is quite apparent this sentence likewise does not limit the parties’ joint education obligation to the cost of a Florida public college. In fact, savings from a Florida pre-paid college plan can be drawn upon for use at colleges and universities nationwide. See § 1009.98(3), Fla. Stat. (2010).

It is only by allowing itself to fall under the spell of the former husband’s unsworn entreaties and its own surmise that the majority is able to find ambiguity in the agreement. The majority accepts as fact the former husband’s unsworn representation concerning the intent of the parties when they executed the Marital Settlement Agreement. It reads into the agreement something that plainly is not there— that the parties might have meant something other than what they wrote. Then, clenching to other legally irrelevant un-sworn claims of the former husband — a free ride available at a Florida public college, the son’s failure to “consult” with the father about where he should go to college, and the father’s alleged pauperism — the majority reverses the judgment of the trial court so the former husband can seek to re-write the agreement.

It is only if contractual terms cannot be reconciled that a court may look to extrinsic sources to determine the parties’ intent. See Wagner v. Wagner, 885 So.2d 488, 492 (Fla. 1st DCA 2004); see also Lloyds Underwriters v. Netterstrom, 17 So.3d 732, 735 (Fla. 1st DCA 2009) (“[W]here the terms can be reconciled, the clear language of the contract controls.”). In this case, all terms of the agreement are easily reconcilable, if indeed any conflict exists. No unaddressed gaps are left in the duties of the parties for the education of their son, as the majority painfully finds to exist in this case. The plain language of the agreement provides “for the cost of the minor child’s college tuition, books, supplies and any and all other related expenses.” Books and supplies were not covered by the Florida pre-paid college plan purchased by the parties, and the phrase “other related expenses” expands the parties’ obligation to the son even more.

It might have been that the parties intended to limit the extent of their joint obligation to their son to the purchase of a four-year Florida pre-paid tuition plan. However, the question before us is not what intention existed in the minds of the parties, but what intention is expressed in the language used. See Robbinson v. Central Props., Inc., 468 So.2d 986, 988 (Fla.1985). The unambiguous statement of the parties’ intention in this case was to “equally pay for the cost of the minor child’s college tuition, books, supplies and all other related expenses.” We should enforce the agreement if the former husband has the ability to pay.

      . At the hearing, the Mother’s counsel acknowledged that the Father’s 50% share of the son’s college expenses equaled $800 per month, not $850.

      . The parties purchased what then was known as a four-year "University Plan.” The plan covered tuition for a specified number of undergraduate semester credit hours, not to exceed the average number of hours required for the conference of a baccalaureate degree, and certain local fees, such as activity and service fees, but excluding laboratory fees. See § 240.551, Fla. Stat. (1992); Fla. Admin. Code 6A-14.054 (1992). It did not cover books, supplies or "other related expenses.” Nor does such a plan do so today. See § 1009.98(2)(b) 1, Fla. Stat. (2012); Fla. Admin. Code 19B-5.001 (2012).

      . The interpretive principle involved here is the doctrine of ejusdem generis. "Under this doctrine, where an enumeration of specific things [i.e. "college tuition, books, supplies”] is followed by some more general word or phrase [i.e. “any and all other related expenses”], the general phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated ... [unless the enumeration of specific things] is exhaustive of members of the class in question. ...” See Brown v. Saint City Church of God of Apostolic Faith, Inc., 717 So.2d 557, 559 (Fla. 3d DCA 1998) (applying doctrine to limit the phrase "or other materials of any kind” in statute prohibiting the throwing of "waste” on public streets to mean “or any other waste-like or litter-like material of any kind” and not gravel placed in swale to create parking area for church goers); see also Tiny Treasures Acad. & Get Well Ctr., Inc. v. Stirling Place, Inc., 916 So.2d 991, 994 (Fla. 4th DCA 2005) (applying doctrine to limit the phrase "damages to the premises” to "similar physical damages to premises” and not lost rent); Stuart Sportfishing, Inc. v. Kehoe, 541 So.2d 169, 170 (Fla. 4th DCA 1989) (finding restaurant and raw bar did not fit into "light marine related business such as marine electronics, sales of new and used boats, ships store, marine canvas, bait shop, and/or similar ones which would be permitted under the current zoning of the property” under doctrine) (emphasis added).

      . Ability to pay has been found to be an implied component of reasonableness when deciding the reasonableness of a college tuition amount. See Carlton v. Carlton, 670 So.2d 1129, 1130 (Fla. 2d DCA 1996). The length of time the obligation exists also should be subject to a reasonableness standard. See Fox v. Haislett, 388 So.2d 1261, 1266 (Fla. 2d DCA 1980) ("[A] provision requiring a father to pay tuition, with no limitation expressed, should be construed to require the payment of tuition in a reasonable amount.”).


author: ROTHENBERG, J.

text:
    Jean Scott BELLAMY, individually and as Co-Trustee of the Robert R. Bellamy Trust dated July 1,1982, as amended, Appellant, v. Margaret Bellamy LANGFITT, Lyell Bellamy McMerty, and Northern Trust, N.A., etc., et al., Appellees.
    No. 3D11-1099.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Joel S. Perwin, Miami; Murai, Wald, Biondo & Moreno, and Gerald B. Wald and Allen P. Pegg, Coral Gables, for appellant.
    Woodrow M. Melvin, Jr.; William C. Lewis, Jr., Coconut Grove, for appellees Margaret Bellamy Langfitt and Lyell Bellamy McMerty.
    Dunwody White & Landon, and Jack A. Falk, Jr., Coral Gables, for appellee Northern Trust, N.A.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

ROTHENBERG, J.

We deny appellee Northern Trust, N.A.’s motion for rehearing, grant Northern Trust’s motion for clarification, withdraw this Court’s previous opinion, dated February 8, 2012, and issue this opinion in its stead.

Jean Scott Bellamy (“Mrs. Bellamy”) appeals an order granting a joint petition filed by Margaret Bellamy Langfitt (“Langfitt”) and Lyell Bellamy McMerty (“McMerty”), which, in part, approves a settlement agreement entered into by McMerty, Langfitt, and Northern Trust, N.A. (“Northern Trust”), and dismisses with prejudice Mrs. Bellamy’s counter-petition. We reverse and remand for further proceedings consistent with this opinion.

This appeal stems from the administration of the Robert R. Bellamy Trust dated July 1, 1982, as amended (“Trust”). Following Robert R. Bellamy’s (“Mr. Bellamy” or “Settlor”) death in 2006, the remaining five co-trustees were Mrs. Bellamy, who is Mr. Bellamy’s widow; Mr. Bellamy’s adult daughters from a previous marriage, Langfitt and McMerty (collectively, “adult daughters”); Mr. Bellamy’s accountant, Kathryn R. Posten (“Ms. Posten”); and Northern Trust, the corporate trustee. Paragraph 2 of the Trust provides: “If the corporate Trustee fails or ceases to serve, the remaining individual Trustees or Trustee shall choose a successor corporate Trustee, so that there shall always be a corporate Trustee after the Settlor ceases to serve.” (emphasis added).

The Trust provides for cash gifts of $10,000,000 to Mrs. Bellamy and $5,000,000 to Isabel Hargrove Bellamy (“Isabel”), who is Mr. and Mrs. Bellamy’s daughter, which have been paid. The Trust also provides for the creation of two sub-trusts, the Bellamy Family Trust (“Family Trust”) and the Bellamy Grandchildren Trust (“Grandchildren Trust”) (collectively, “sub-trusts”), which are to be primarily funded by two assets — the Town Creek Timber Company and Erwin Industries, Inc. In previous orders entered in Case No. 06-2084 CP 05, the trial court found that Isabel’s unborn children are beneficiaries of the Family Trust and the Grandchildren Trust.

In 2009, Langfitt ñled a petition seeking to remove Ms. Posten as co-trustee, asserting that she breached her fiduciary duty. While this petition was pending, the co-trustees drafted proposals pertaining to the administration and distribution of the Trust assets. Northern Trust, Mrs. Bellamy, and Ms. Posten voted to adopt several proposals, which were opposed by the adult daughters. In July 2010, the adult daughters entered into a settlement agreement with Ms. Posten, allowing her to resign and releasing her from liability. Despite Mrs. Bellamy’s opposition, the trial court approved the settlement agreement, and Ms. Posten was not replaced.

In January 2011, the adult daughters and Northern Trust entered into a settlement agreement, which was subject to court approval, discharging Northern Trust as the corporate co-trustee and as co-personal representative of Mr. Bellamy’s estate, releasing Northern Trust from liability, and providing that Merrill Lynch would act as custodian to receive and hold the income from the Trust assets and to pay the Trust expenses. Thereafter, the adult daughters filed a “Joint Petition for Approval of Settlement Agreement, for Approval of Resignation of Northern Trust, NA, as Co-Trustee and for Full and Final Discharge of Northern Trust, NA, as Co-Trustee” (“Joint Petition”).

Mrs. Bellamy filed an answer and affirmative defenses to the Joint Petition. She also filed a counter-petition seeking the removal of Northern Trust as co-trustee, but requesting that a successor corporate co-trustee be appointed as required by Paragraph 2 of the Trust. In addition, Mrs. Bellamy sought damages against Northern Trust, alleging that Northern Trust breached its fiduciary duties by entering into the settlement agreement and by requesting that the trial court modify Paragraph 2 of the Trust to allow for a corporate custodian, rather than a corporate trustee, to replace Northern Trust.

A hearing was held on the Joint Petition and counter-petition. Mrs. Bellamy argued that the propriety of the settlement agreement could not be decided on the pleadings, and therefore was “procedurally premature;” a corporate co-trustee must replace Northern Trust as required by the Trust; the appointment of a successor corporate co-trustee was essential as the Trust had not been substantially administered; Northern Trust should not be immunized from liability prior to the completion of discovery; and Northern Trust should not be excused from completing its accounting.

Following the hearing, the trial court entered an order granting the Joint Petition approving the settlement agreement, finding that it is “fair, reasonable and in the best interests” of the Trust, Mr. Bellamy’s estate, sub-trusts, and beneficiaries. The trial court also approved Northern Trust’s resignation; released Northern Trust of liability; authorized Northern Trust to transfer the cash and securities to Merrill Lynch to act as custodian; and provided that if the Trust can be construed as requiring the replacement of the corporate trustee, the Trust was being modified “to permit a corporate custodian to hold the securities and cash of the Trust and sub-trusts” because the “purpose of having a corporate trustee is no longer served because the Trust is substantially administered, the Court will make a determination about the funding and distribution of assets of the Trust, and both sides of the funding dispute are represented by counsel.” Finally, the order grants with prejudice Northern Trust’s motion to dismiss Mrs. Bellamy’s counter-petition, finding that the claim for removal of Northern Trust was rendered moot by the approval of the settlement agreement, and that Northern Trust’s entry into the settlement agreement with the adult daughters, which was contingent on court approval, does not constitute a breach of fiduciary duty. This appeal followed.

Mrs. Bellamy contends that the trial court erred by approving the settlement agreement. Specifically, Mrs. Bellamy argues that in light of Paragraph 18, the trial court erred by modifying Paragraph 2 of the Trust, which requires that “there shall always be a corporate Trustee after the Settlor ceases to serve.” We agree.

The Trust allows a trustee to resign by giving thirty days’ notice. However, Paragraph 2 of the Trust clearly indicates Mr. Bellamy’s intent upon the resignation of a corporate trustee — the remaining co-trustees must replace the corporate trustee if the corporate trustee resigns “so that there shall always be a corporate Trustee after the Settlor ceases to serve.” Unlike the other co-trustees, the corporate trustee was the only co-trustee that had to be replaced upon its resignation, indicating that Mr. Bellamy believed the corporate trustee was essential to the administration and distribution of the Trust assets. Following Ms. Posten’s resignation as a co-trustee, of the four remaining co-trustees, the corporate trustee was the only co-trustee without a beneficial interest in the Trust assets.

In Paragraph 18 of the Trust, as restated in 2002, Mr. Bellamy specifically addressed, and prohibited, the judicial modification of the Trust, specifically providing: “[T]o the extent permitted by law, I prohibit a court from modifying the terms of this Trust Agreement under Florida Statutes s. 7374031(2) or any statute of similar import.” Section 737.4031, Florida Statutes (2002), which is currently found in section 736.04113 of the Florida Statutes, allowed for the judicial modification of a trust under certain circumstances, including “if compliance with the terms of the trust is not in the best interest of the persons having a beneficial interest in the trust.” Moreover, subsection (2)(a) specified that the modification “conform!] to the extent possible with the intention of the settlor, taking into account the current circumstances and the best interests of the beneficiaries.”

In the instant case, the trial court found that the settlement agreement was in the best interest of the beneficiaries and that Paragraph 2 was being modified to allow Merrill Lynch to act as a custodian, as opposed to a trustee, because the “purpose of having a corporate trustee is no longer served because the Trust is substantially administered.” As Paragraph 18 of the Trust prohibits the judicial modification of the Trust, even if it is in the best interest of the beneficiaries, we conclude that the trial court erred by modifying Paragraph 2. Moreover, the trial court’s finding that that the Trust has been “substantially administered” is not supported by competent substantial evidence as the purpose of the Trust has not been fulfilled and more than routine, ministerial functions remain at this point. Accordingly, we reverse the order under review granting the Joint Petition and reverse the dismissal of Mrs. Bellamy’s counter-petition. Further, as this Court is reversing the approval of the settlement agreement, as required by Paragraph 14 of the settlement agreement, Northern Trust must be “restored to [its] rights as they existed prior to the execution of the [settlement] [a]greement.” Therefore, Northern Trust is reinstated as the corporate co-trustee of the Trust and co-personal representative of Mr. Bellamy’s estate.

Reversed and remanded.

      . McMerty is referred to as Sarah Lyell Bellamy McMerty in the Trust.

      . Paragraph 14 of the settlement agreement provides, in relevant part: "If the Court does not approve the Agreement in its entirety, then the Agreement shall be of no further force or effect and the parties shall be restored to their rights as they existed prior to the execution of the Agreement ...." (emphasis added).

      . In the Joint Petition, Northern Trust gave notice of its resignation. However, its notice of resignation was "wholly contingent” upon the court’s approval of the settlement agreement. Specifically, Paragraphs 5 and 6 provide:
      5. Subject to paragraph 6 below, Northern hereby gives written notice to the other Co-Trustees of its intent to resign as Co-Trustee of the Trust and the sub-trusts created thereunder ("Notice of Resignation”). The Notice of Resignation complies with paragraph 10 of the Trust that provides "[a]ny Trustee ... the power to resign by giving thirty (30) days written notice ... to the other Trustees then serving.”
      6. Northern's Notice of Resignation is wholly contingent upon the Court’s approval of the Agreement, including approval of Northern's resignation as Co-Trustee and Co-Personal Representative and a full release and discharge of Northern in its fiduciary and individual capacities.
      (emphasis added).

      . Section 737.4031, Florida Statutes (2002), provides in pertinent part:
      Judicial modification of trusts.—

        (1) If the purposes of a trust have been fulfilled or have become illegal or impossible to fulfill or, if because of circumstances not known to or anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust or, if a material purpose of the trust no longer exists, upon the application of a trustee of the trust or any beneficiary a court at any time may modify the terms of a trust which is not then revocable to:
      (a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal, or terms governing administration of the trust;
      (b) Terminate the trust in whole or in part;
      (c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or
      (d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.
      (2) Upon the application of a trustee of the trust or any beneficiary, a trust which is not then revocable may be modified at any time by a court as provided in subsection (1), and without regard to the reasons for modification provided in subsection (1), if compliance with the terms of the trust is not in the best interest of the persons having a beneficial interest in the trust.
      (a)The court shall exercise its discretion to order a modification of the trust under this subsection in a manner that conforms to the extent possible with the intention of the settlor, taking into account the current circumstances and best interests of the beneficiaries[J

      . Section 736.04113 provides:
      Judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose.—
      (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
      (a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
      (b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
      (c) A material purpose of the trust no longer exists.
      (2) In modifying a trust under this section, a court may:
      (a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust;
      (b) Terminate the trust in whole or in part;
      (c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or
      (d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.
      (3) In exercising discretion to modify a trust under this section:
      (a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.
      (b) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.
      (4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

      . As acknowledged by Northern Trust's counsel during oral argument, although Northern Trust must be reinstated as the corporate co-trustee, Mrs. Bellamy is free to pursue a removal action against Northern Trust.


author: GRIFFIN, J.

text:
    Jessica L. COLE, Appellant, v. William L. COLE, Appellee.
    No. 5D11-1408.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Jessica L. Cole, Apopka, pro se.
    William L. Cole, Joint Base Lewis-McChord, Washington, pro se.
   GRIFFIN, J.

Jessica L. Cole [“Mother”] pro se appeals a non-final order under which the minor child of Mother and William L. Cole [“Father”] is to reside with Father and relocate with Father to the State of Washington. Mother argues that the trial court (1) erred as a matter of law by permitting a witness to testify via telephone over her objection, and (2) abused its discretion in finding that there was a basis to modify the parties’ agreement regarding time-sharing with the minor child to permit Father to relocate the child to the State of Washington.

On January 14, 2009, the trial court entered final judgment of dissolution of the parties’ marriage, which incorporated the parties’ marital settlement agreement. In the martial settlement agreement, the parties provided: “The minor child is in the primary residential custody of the Wife hei’ein and the parties agree that the Wife is the fit and proper person to be awarded permanent primary care, custody and control of the minor child herein.” They also provided: “The parties recognize and agree that it is in the best interest of the minor child that they engage in shared parenting.”

In August 2010, Father filed an emergency motion for temporary relief, requesting that the trial court temporarily name him the primary residential parent. He alleged in part that:

6. The minor child has been residing with the Mother with the Father seeing the minor child on a regular basis.
7. During that time, it has come to the Father’s attention that the Mother has continually placed the minor child in an unsafe environment.
8. The Mother’s boyfriend has been accused of domestic violence.
9. It is the Father’s understanding that there has been currently two no contact order [sic] out between the Mother and her boyfriend.
10. The Mother has continually dropped charges against the boyfriend and at the time of the writing of this motion, the boyfriend is due to return in the home.
11. The Mother is exposing the minor child to this domestic abusive relationship between herself and her boyfriend with no consideration for the best interest of the minor child.
12. The Father is also under the impression that there is some drug use in the Mother’s home.
13. The Father requests that the Court at this time allow the minor child to reside with him in the best interest of the child.
14. The Father has received orders from the Army to go to Washington and has filed a Notice to Relocate with the Court.
15. The Father states that it is in the minor child’s best interest, pursuant to the Florida Statutes, that he be temporarily named parent with whom the child resides with primarily and that he is a fit and proper parent and that he can provide a healthy and stable environment for the minor child.

At the same time, Father filed a supplemental petition regarding time-sharing of the minor child and other matters. He requested that the trial court modify the final judgment of dissolution of marriage with respect to the designation of primary-residential parent, time-sharing, child support, tax exemption and other matters. Specifically, he requested that the trial court name him primary residential parent and set a specific time-sharing schedule.

Mother filed a verified motion to strike Father’s emergency motion, motion for temporary relief, and objection to notice of intent to relocate. She alleged in part:

3. Former Wife has at all times been and is an excellent mother of the minor child. The minor child is the paramount concern and responsibility of the Former Wife. The Former Wife has nurtured her and primarily provided for her in the Former Husband’s absence. Former Wife has never placed the minor child in harms [sic] way and the minor child has never witnessed or been present when an act of domestic violence has been perpetrated upon the Former Wife. The Former Wife would show that there was an isolated act of domestic violence between the Former Wife and her live in boyfriend for which he was arrested. All charges have since been dismissed. Former Wife would show that the minor child did not witness the act and the child was asleep in her room and not awakened by the act. The Former Wife’s first concern was for the safety of the minor child so after the incident when the child was still asleep the Former Wife woke her and took her to another dwelling away from the controversy. From a neighbor’s home, the minor child did see law enforcement arrive and was told by third parties that the Former Wife’s boyfriend had been arrested. The Former Wife and her live in boyfriend have never previously had an incident of domestic violence occur. As soon as the Former Wife spoke to the Former Husband about the incident, he threatened to remove the minor child from her care.
[4]. The Former Wife requests a schedule of time sharing for when the Former Husband is in town. Former Wife would show that the Former Husband is an active member of the United States Army stationed or in the process of being stationed in Washington State. The Former Husband had not been residing in the State of Florida and has not been maintaining frequent contact with[] the minor child. The Former Husband went to basic training in October 2009 in the State of Georgia, came home for Christmas briefly and had time sharing with the minor child. Former Husband left the State again and returned briefly in February and then again in May, 2010.
[5]. Former Wife objects to the Former Husband’s Notice of Intention to Relocate. Former Husband is an active member of the military set to be stationed in the immediate future in the State of Washington. There is no schedule of time sharing which can maintain the time sharing and bond the minor child and Mother have enjoyed. The Former Husband by his own choice has enlisted in the Army subsequent to the parties’ dissolution and has been absent from the child’s life since October of 2009 and has not had frequent contact with her since that time due to his basic training and enlistment. Former Husband does not have stable housing and is currently residing with relatives.
5. All of the minor child’s extended family reside in Central Florida. The child enjoys continual contact and close bonds with her extended family. It would be detrimental to the minor child for her to be relocated to where ever the Former Husband is from time to time stationed.

(Emphasis in original).

On March 25, 2011, the trial court conducted an evidentiary hearing on Father’s supplemental petition regarding time-sharing of the minor child and other matters, and his petition to relocate with the minor child. It heard testimony from numerous witnesses, including telephonic testimony from Christina Lynn Cole, Father’s current wife and the minor child’s step-mom [“step-mom”]. At the conclusion of the hearing, the trial court made several oral findings and directed the parties each to submit a proposed order.

The court made a finding that Father and step-mom were credible, that some of Mother’s testimony was credible and some was not, that domestic violence did occur, that Mother’s boyfriend choked her, that Mother’s boyfriend’s testimony regarding what happened was not credible, that the other testimony of the bruises that had been on Mother was credible, that the testimony that there were no substances in the house was not credible, that there were substance issues, that the testimony that Xanax sometimes came in between Mother and her parenting was credible, that the substance issues had interfered with parenting on at least one occasion, that allowing illegal substances in the home had interfered with “complete great parenting”, that continuing contact with the boyfriend showed a lack of stability, and that taking the minor child to another place to sleep “was an issue with the court.”

On April 12, 2011, the trial court entered “final judgment,” granting Father’s supplemental petition regarding time-sharing of the minor child and other matters, and his petition to relocate with the minor child.

On appeal, Mother first raises as error that the trial court permitted step-mom to testify by telephone over her objections in contravention to Florida Rule of Judicial Administration 2.580(d). Florida Rule of Judicial Administration 2.580(d)(1) provides:

Generally. A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.

As written, under rule 2.530(d)(1), a trial court’s discretion to allow testimony to be taken through communication equipment is triggered only if all of the parties consent. The record reveals that Mother objected to the telephonic appearance of step-mom prior to the hearing and renewed the objection before step-mom’s testimony, but the trial court overruled the objection. Because Mother objected to the telephonic testimony, the trial court erred by overruling her objection and allowing step-mom to testify by telephone. See S.A. v. Dep’t of Children and Family Servs., 961 So.2d 1066, 1067 (Fla. 3d DCA 2007) (“[u]nder ... rule [2.530], trial testimony can be taken by telephone only if all parties consent” because appellant objected “[t]he objection should have been sustained,” and that “[t]he court erred by allowing the officer to appear by telephone”). Citing to the S.A. decision in M.S. v. Dep’t of Children and Families, 6 So.3d 102, 104-05 (Fla. 4th DCA 2009), the Fourth District said:

The court also erred in permitting the Maryland social worker to testify by telephone. Pursuant to Florida Rule of Judicial Administration 2.530(d)(1), “[a] county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.” Although the trial court thought that it should have some discretion under this rule, there is no such discretion.

Mother contends that the error cannot be considered harmless because the trial court relied upon step-mom’s testimony in making its factual determinations.

During the hearing, step-mom testified that Mother had told her that she took Xanax when she was stressed; that Mother asked her if she could get any Xanax; that the Mother’s boyfriend had hit Mother and smashed Mother’s phone; that she recalled observing bruises on Mother’s arms a couple of times which Mother said were from playing around with her boyfriend; that on one occasion when Mother picked up the minor child late, Mother informed her that she had taken Xanax and fallen asleep; that Mother had told her that she had taken Xanax, fallen asleep, and the minor child had watched herself; and that Mother had admitted to having drinks at the house while the minor child was in her care.

As relates to step-mom’s testimony, the trial court found:

G. The Court listened to the testimony of the step-mother Christina Cole. The Court evaluated her testimony by many factors including how she testified and its consistency with other evidence. Her testimony is credible and found to be truthful. She testified to the home they created. She testified how she continued to love and watch the minor child when the father was away training. The child’s mother continued to allow the stepmom to share weekends. The child’s mom trusted the stepmom and had her assist in child care. The child’s mom also confided, at times, with the step mom. The mother, at times, had overused prescription medication to impairment and determent [sic] to the ability to properly care for the child. The stepmom willingly assisted and cared for the child. This witness also observed bruises that began after The Mother began living with her current boyfriend.

Under the circumstances, we cannot say that the error in allowing this witness to appear by telephone over Mother’s objection was harmless. Accordingly, we reverse and remand for a new hearing.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . Father filed no brief in this appeal and offers no contrary argument.


text:
    Luc TERMITUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4347.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Luc Termitas, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Defendant, Luc Termitas [“Termitas”], appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Termitas argues that the life sentences he received for attempted armed robbery with a firearm on Counts II and III are illegal, mainly because they exceed the statutory maximum. We agree that the sentences are illegal, though only partly for the precise reason asserted by Ter-mitas.

After a jury trial, Termitas was convicted of one count of first-degree murder, two counts of attempted robbery with a firearm, aggravated flight from officers, and third-degree grand theft. These charges arose from events that occurred on the morning of September 7, 2004, when Termitas attempted to rob the Fair-winds Credit Union in Orlando, Florida. In the course of the attempted robbery, Termitas shot and killed a teller, Sue Ellen Gelsinger. The jury made special findings on Count II and III: on Count II, the jury determined that Termitas actually possessed and discharged a firearm; on Count III, the jury determined that Ter-mitas actually possessed and discharged a firearm resulting in the death of Sue Ellen Gelsinger. In reviewing the scoresheet, the judge asked if there was agreement that the offenses in Counts II and III were first-degree felonies, punishable by life, and defense counsel concurred. In fact, as the State now acknowledges, these offenses were second-degree felonies. Based on this misunderstanding, the trial court orally sentenced Termitas on Counts II and III to life in prison. No minimum mandatory sentence was announced, although the written sentences reflected a minimum mandatory of three years on both counts.

As second-degree felonies, these convictions were subject to a fifteen-year statutory maximum. See § 775.082(3)(c), Fla. Stat. (2004). However, section 775.087(2), Florida Statutes, commonly referred to as the 10-20-Life statute, requires enhancement of a sentence if the perpetrator has carried or used a weapon or firearm in the commission of a felony. Clowers v. State, 31 So.3d 962 (Fla. 1st DCA 2010). Before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make the appropriate statutorily required finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime that involves a firearm or by answering a specific question concerning the firearm’s use on a special verdict form. State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (quoting Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)); see also State v. Hargrove, 694 So.2d 729, 730 (Fla.1997).

Here, in rendering its verdict on Count II, the jury made a special finding that Termitus possessed and discharged a firearm while attempting to rob Stacy Ross-man. Therefore, the trial court had a nondiscretionary duty to impose the statutorily-required twenty years for the discharge of the firearm. See Dunbar v. State, 46 So.3d 81, 83 (Fla. 5th DCA 2010); see also Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003); State v. Strazdins, 890 So.2d 334, 334 (Fla. 2d DCA 2004) (When a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, “the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence.”). In sum, the sentence on Count II is illegal in two respects: the trial court erred in sentencing Termitus to life in prison for a first-degree felony, but the trial court also erred in failing to impose the required mandatory minimum sentence. We vacate the sentence on Count II and remand for resentencing.

Termitus’ sentence on Count III is also illegal. Although the trial court and counsel similarly misperceived the degree of this offense to be a first-degree felony, punishable by life, and also sentenced Ter-mitus to an illegal three-year firearm minimum mandatory, the life sentence imposed on Count III was less “illegal” because, as to Count III, the jury had specifically determined that Termitus discharged a firearm resulting in the death of the victim. Under Section 775.087(2)(a)3., a defendant who discharges a firearm during the commission of certain enumerated crimes, including robbery and attempted robbery, and inflicts death or great bodily harm as the result of the discharge shall be sentenced to a “minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” Thus, on resentencing, the trial court must impose a minimum mandatory sentence within that range. See Mendenhall v. State, 48 So.3d 740 (Fla.2010).

SENTENCES VACATED and REMANDED.

GRIFFIN, MONACO and TORPY, JJ., concur.

      . In Count II, Defendant was charged with attempted robbery with a firearm for his actions with regard to victim Stacy Rossman. In Count III, Defendant was charged with attempted robbery with a firearm for his actions which resulted in the death of victim Sue Ellen Gelsinger.

      . Defendant’s convictions on Count II and Count III cannot be reclassified to first-degree felonies pursuant to Section 775.087(1) — the firearm reclassification statute — because the use of a firearm is an essential element of the offense of attempted robbery with a firearm. See Denizard v. State, 79 So.3d 159 (Fla. 2d DCA 2012); Williams v. State, 850 So.2d 656, 658 (Fla. 1st DCA 2003).

      . The trial judge who presided on Termitus’ rule 3.800 motion correctly determined that the sentence on Count III did not exceed the statutory maximum, but was mistaken in applying that same reasoning to Count II because the jury did not find for Count II that Termitus possessed and used a firearm resulting in the death of the victim.