text:
    Robert C. GULLEDGE, Appellant, v. Robyn GULLEDGE, Appellee.
    No. 2D11-472.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2012.

      Edward B. Sobel of Edward B. Sobel, P.A., Bradenton, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Robert Gulledge, the former husband, challenges the final judgment dissolving his marriage to Robyn Gulledge, the former wife. He raises issues regarding the trial court’s failure to set a deadline for refinancing or sale of the marital residence, failure to award alimony, and failure to reserve jurisdiction to award attorney’s fees. We conclude that the court erred with regard to all three issues. We therefore reverse the final judgment and remand for further proceedings.

The parties were married on November 16, 1978, and had two children together. On May 28, 2009, the former husband filed a petition for dissolution of marriage. The former wife filed an answer and counter-petition. Both parties pleaded for exclusive possession of the marital residence and partition of the property, for alimony, and for attorneys’ fees. Following the final hearing, on December 16, 2010, the trial court entered its final judgment of dissolution of marriage.

I. The marital residence

The trial court awarded the former wife possession of the marital home and awarded the former husband one-half of the equity in the home. Pursuant to the final judgment, the former husband was to be paid his half of the equity upon the refinancing or sale of the home. The final judgment did not, however, include a date by which such refinancing or sale must occur.

We agree with the former husband that the trial court erred by failing to include a deadline for the refinancing or sale of the marital home. If the trial court orders the sale of the marital home in the final judgment “the judgment must fix a reasonable deadline by which the sale must take place.” Sullivan v. Sullivan, 363 So.2d 393, 395 (Fla. 2d DCA 1978) (citing Carlsen v. Carlsen, 846 So.2d 132, 133 (Fla. 2d DCA 1977)). As was the case in Sullivan, “[t]he judgment now before us is deficient because it sets no deadline for the sale of the home by the parties.” Id. We therefore reverse that portion of the final judgment which fails to set a deadline for sale or refinancing of the marital home and remand for the trial court to provide such deadline. See Blackmon v. Blackmon, 969 So.2d 426, 430 (Fla. 1st DCA 2007).

II. Alimony

At the time of dissolution, the parties had been married for more than thirty years. “This constitutes a long-term marriage, which creates a presumption in favor of permanent, periodic alimony.” Fortune v. Fortune, 61 So.3d 441, 446 (Fla. 2d DCA 2011) (citations omitted). In considering a request for permanent, periodic alimony, the trial court must consider the needs of the requesting spouse and the ability of the other spouse to pay. Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). The trial court is also obligated to consider the factors set forth in section 61.08(2), Florida Statutes (2010). See id. Here, the transcript of the final hearing establishes that the section 61.08(2) factors were argued by the former husband’s attorney, but the trial court’s sole finding was that the former husband had no need. Further, the court did not impute any specific amount of income to the former husband; instead, the court found that the former husband was voluntarily underemployed and denied the requested alimony.

It is undisputed that the former husband’s income, both during the marriage and during the dissolution proceedings, was substantially less than the former wife’s. However, given the former husband’s work history, we find no abuse of discretion in the court’s finding that the former husband was underemployed. We do, however, find an abuse of discretion in the court’s finding of no need and in its failure to award the former husband at least nominal permanent, periodic alimony.

The evidence presented at the final hearing established that the former wife’s income was between $50,000 and $60,000 per year and that the former husband was underemployed. The evidence also established that the former husband’s income during the marriage never exceeded $15,000 per year. Thus, the trial court should have imputed to the former husband some income above what he had been making at the time of the final hearing— about $6,000 per year. The former husband has a GED, has worked as a mechanic, and has held various other positions, along with caring for his children and grandchildren. It appears to be uncontested that his monthly budget deficit was $923.80.

In denying alimony where the evidence clearly supported need and did not support imputation of income near that of the former wife’s, the trial court clearly abused its discretion. See Sussman v. Sussman, 915 So.2d 281, 285-86 (Fla. 4th DCA 2005). “[T]he historic incomes of the parties, the length of the marriage, and the [husband’s] potential future needs require an award of at least a nominal amount of permanent alimony.” Nourse v. Nourse, 948 So.2d 903, 904 (Fla. 2d DCA 2007); see Liebrecht v. Liebrecht, 58 So.3d 415, 419 (Fla. 2d DCA 2011).

Thus, we reverse the denial of alimony and remand for the trial court to award at least nominal alimony of $1 per year to the former husband. See Schlagel, 973 So.2d at 675-77 (concluding that an award of nominal permanent alimony would allow the trial court to increase the alimony award should the wife be unable to find gainful employment in the amount imputed to her). In addition, on remand, the court should make specific factual findings with respect to the statutory factors enumerated in section 61.08(2), as required by section 61.08(1). See Sussman, 915 So.2d at 286.

III. Attorney’s fees

Although requested by the former husband in his pleadings and at the final hearing, the trial court did not reserve jurisdiction to award attorney’s fees or address attorney’s fees at all. “Where the trial court fails to address a request for attorney’s fees and costs or to reserve jurisdiction to consider the issue, the final judgment should be reversed and remanded for entry of a corrected judgment reserving jurisdiction to address the request for attorney’s fees and costs.” Flores v. Flores, 82 So.3d 838, 2011 WL 1261157 (Fla. 4th DCA 2011); see also Pignataro v. Rutledge, 841 So.2d 636, 638 (Fla. 2d DCA 2003) (‘“When issues raised by the pleadings are properly before the trial court, it is error for the trial court to fail to rule on them.”). We therefore reverse the final judgment and remand for consideration of the former husband’s request for attorney’s fees or for entry of a final judgment which reserves jurisdiction to consider the issue. See Yangco v. Yangco, 901 So.2d 217, 222 (Fla. 2d DCA 2005).

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Esteban CAPO, Appellant, v. FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME and Department of Children and Families, Appellees.
    No. 4D10-5153.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      Mark J. Berkowitz of Mark J. Berkow-itz, P.A., Fort Lauderdale, for appellant.
    Andrew Weltman, Staff Attorney and Alma R. Gonzalez, Special Counsel, for Appellee-Florida Public Employees Council 79 AFSCME.
   TAYLOR, J.

Esteban Capo appeals the partial summary dismissal of his Amended Unfair Labor Practice charge against his labor union. We reverse, concluding that the Public Employees Relations Commission (“Commission”) erred when it determined that Capo’s hybrid unfair labor charge, based on his union’s processing of his grievance, was not timely filed under section 447.503(6)(b), Florida Statutes.

On September 23, 2010, Capo filed an unfair labor practice charge with the Commission against his union, Florida Public Employees Council 79, AFSCME, AFL-CIO (the “Union”), and his former employer, the Department of Children and Families (“DCF”). In the charge, Capo alleged that DCF had unlawfully dismissed him from his position as a child protective investigator and that the Union subsequently breached its duty of fair representation in processing his grievance regarding that dismissal.

Capo asserted the following pertinent facts: (1) on June 12, 2009, he was dismissed from his position with DCF for reasons not constituting “just cause”; (2) because he held a position as president of a local chapter of the Union, the Union agreed to represent him in filing a grievance to challenge the DCF dismissal, but then failed to timely appeal his grievance to Step 3 of the grievance procedure, as required by the operative collective bargaining agreement in place between the Union and DCF; and (3) on May 3, 2010, as a result of the Union’s failure, an arbitrator denied Capo’s grievance as barred in light of its untimely filing without extenuating circumstances.

While the Union was handling the grievance procedure, Capo allegedly contacted Ed Moore, a Union representative, on several occasions “to follow-up on the grievance,” but Moore failed to do so. At some point around August 31, 2009, Moore allegedly told Capo that he would not be taking any further action with regard to the grievance. On August 31, 2009, Capo sent an e-mail to Moore, requesting to be informed of the status of his grievance, but Moore did not respond. Moore was allegedly upset with Capo because Capo had been complaining about certain Union representatives to the Union president.

The Union represented Capo throughout the arbitration process. In the unfair labor charge, however, Capo alleged that the Union’s failure to timely appeal his grievance to Step 3 was not a mere oversight, but was retaliation for his previous complaints.

On August 12, 2010, Capo was suspended from his position as the president of a local chapter of the Union.

On September 29, 2010, the Commission’s General Counsel summarily dismissed the charge on the grounds that the claims were either untimely filed or factually deficient. On October 13, 2010, Capo filed an Amended Unfair Labor Practice charge.

In an order dated October 19, 2010, the Commission’s General Counsel determined that the events alleged to have occurred after March 21, 2010 (including Capo’s suspension as president of the local union branch), were within the six-month limitations period that applied to the original unfair labor practice charge of September 23, 2010, and were factually sufficient to proceed to an evidentiary hearing. However, claims based on events occurring pri- or to March 21, 2010 — including the grievance timeliness issue — were summarily dismissed as untimely under section 447.503(6)(b), Florida Statutes, which generally provides that a charge is untimely if it is based on an alleged unfair labor practice which occurred more than six months prior to the filing of the charge.

The General Counsel concluded that the limitations period began either on August 31, 2009 (when Capo would have known of Moore’s alleged ineffective prosecution of the grievance) or on September 21, 2009 (the date when the grievance had been untimely filed at step three). Thus, the General Counsel concluded that Capo had until the end of February 2010, or at the latest until March 21, 2010, in which to file an unfair labor practice charge against the Union, but untimely filed his charge on September 23, 2010.

Capo appealed to the Commission the portion of the General Counsel’s order which summarily dismissed his claims based on allegations occurring prior to March 21, 2010. Capo argued that, because he filed unfair labor charges against both the Union and DCF, this matter was a “hybrid action” for which the statute of limitations did not begin to run until the final action of May 3, 2010, when the arbitrator dismissed his grievance on timeliness grounds.

On November 23, 2010, the Commission upheld the General Counsel’s partial dismissal of the Amended Unfair Labor Practice Charge. The Commission rejected Capo’s argument that he was justified in waiting until the arbitration process was exhausted before filing the unfair labor practice charge because he initiated a “hybrid” action against both the Union and DCF. The Commission reasoned that the adoption of the hybrid theory would effectively result in an unauthorized tolling of the six-month statute of limitations under section 447.503(6)(b) for the dismissed portion of the amended charge. The Order dated November 28, 2010, specifically stated that Capo had thirty days to appeal the order to the appropriate district court of appeal. Capo timely filed a notice of appeal directed to this order.

On appeal, Capo argues primarily that he was justified in completing the arbitration procedure before resorting to filing his hybrid unfair labor practice charge. He thus maintains that, because his charge was a hybrid cause of action asserting claims against both the Union and his former employer, the six-month limitations period began to run on May 8, 2010, when the arbitrator dismissed the grievance on timeliness grounds. We agree.

Although the standard of review of agency statutory interpretation has been described as de novo, an agency is nonetheless afforded wide discretion in the interpretation of a statute in which it is given the power and duty to administer. See Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). “[A] reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Emps. Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). “If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed.” Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003). However, judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning. Werner v. Dep’t of Ins. & Treasurer, 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) (citation and internal quotation marks omitted). Where the language is clear and unambiguous, it must be given its plain and ordinary meaning. See Mayo Clinic Jacksonville v. Dep’t of Prof'l Regulation, Bd. of Med., 625 So.2d 918, 919 (Fla. 1st DCA 1993).

State public employees relations law under Chapter 447 is to be “construed with the National Labor Relations Act as a model insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.” United Faculty of Fla. v. Pub. Employees Emp. Relations Comm’n, 898 So.2d 96, 101 (Fla. 1st DCA 2005) (citation and internal quotation marks omitted). Section 447.503(6)(b), Florida Statutes, sets forth a six-month limitations period for bringing an unfair labor practice charge. The statute provides that “[i]f the commission determines that the alleged unfair labor practice occurred more than 6 months pri- or to the filing of the charge, the commission shall issue an order dismissing the case, unless the person filing the charge was prevented from doing so by reason of service in the Armed Forces, in which case the 6-month period shall run from the date of the person’s discharge.” § 447.503(6)(b), Fla. Stat.

The language in section 447.503(6)(b) is substantively indistinguishable from the corresponding limitations period in the National Labor Relations Act. See NLRA § 10(b), 29 U.S.C. § 160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.”).

In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 171, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the six-month statute of limitations prescribed by section 10(b) of the National Labor Relations Act was the appropriate statute of limitations for “hybrid” actions — that is, cases involving both claims against the employer and claims against the Union for breach of the duty of fair representation. The Court in DelCostello did not address when the six-month period begins to run. But the Court explained that ordinarily “an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement,” and that the employee is bound by the result of those proceedings subject only to very limited judicial review. Id. at 163, 103 S.Ct. 2281. The Court recognized the need for the hybrid cause of action, however, because the strict rule of limited judicial review “works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” Id. at 164, 103 S.Ct. 2281. Here, Capo’s hybrid action presents such a dual claim, alleging both that DCF improperly discharged him and that the Union breached its duty to represent him in failing to properly prosecute the grievance procedure.

Under federal case law, the six-month limitation period starts running when the plaintiff discovers, or should have discovered, the acts constituting the alleged violation. Howard v. Lockheed-Georgia Co., 742 F.2d 612, 614 (11th Cir.1984). Applying this principle to hybrid suits, the Eleventh Circuit has explained that “the timeliness of the suit must be measured from the date on which the employee knew or should have known of the union’s final action or the date on which the employee knew or should have known of the employer’s final action, whichever occurs later.” Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558, 1559 (11th Cir.1986). Therefore, “a cause of action for breach of the duty of fair representation accrues at the point where the grievance procedure has been exhausted or otherwise breaks down to the employee’s disadvantage.” Hayes v. Reynolds Metals Co., 769 F.2d 1520, 1522 (11th Cir.1985). As the Hayes court explained: “It is only at this point that the employee is cognizant of any alleged breach of the duty owed him by the union.” Id.

Based on similar reasoning, the Second Circuit has held that the limitations period begins to run when the employee suffers an unfavorable outcome in an arbitration or grievance procedure where he was represented by the union. See Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 163 (2d Cir.1989) (cause of action for hybrid suit did not accrue until unfavorable arbitrator’s decision where union did in fact represent the employee at arbitration).

In this case, the Commission erroneously determined that Capo’s unfair labor charge based on the Union’s processing of his grievance was untimely filed. In hybrid actions, like this one, federal courts have uniformly interpreted the six-month limitations period in the NLRA as beginning to run when the grievance or arbitration procedure has been exhausted or otherwise broken down to the employee’s disadvantage. Here, the Union continued to represent Capo throughout the arbitration procedure. Thus, the six-month limitation period began to run when the arbitrator denied Capo’s grievance as untimely. A hybrid charge challenging the adequacy of union representation, if filed before the arbitration was complete, would have been inefficient and premature. See Childs v. Pennsylvania Fed’n Bhd. of Maint. Way Emps., 831 F.2d 429, 434-35 (3d Cir.1987).

While the Commission was concerned that accepting Capo’s theory would “effectively result in an unauthorized tolling of the six-month statute of limitations,” the Commission’s reasoning was unsound. It appears that the Commission determined that the statute of limitations is tolled only when the charging party was prevented from filing a charge by reason of service in the Armed Forces. However, the federal statutory limitations period in the NLRA includes the same language concerning Armed Forces, yet the federal courts have held that the six-month limitations period does not begin to run in a hybrid action until the employee suffers an unfavorable outcome in an arbitration or grievance procedure where he was represented by the union. More important, the issue in this case concerns when the claim accrued, not whether the statute of limitations should be tolled. The Commission overlooked well-settled federal case law interpreting the NLRA, which is the statutory model for Florida’s limitations period.

In sum, the six-month limitation period began to run on May 3, 2010, which was when the arbitrator denied Capo’s grievance as untimely. Therefore, Capo’s hybrid unfair labor charge dated September 23, 2010, was timely filed. We reverse the partial dismissal of Capo’s unfair labor practice charge and remand for further proceedings.

Reversed and Remanded for farther proceedings.

POLEN and STEVENSON, JJ., concur.

      . The unfair labor charge against DCF was litigated separately from the charge against the Union; the cases were assigned separate numbers before the Commission and were the subject of separate orders. The dismissal of Capo's unfair labor practice charge against DCF is the subject of a separate appeal in Case Number 4D10-5154.

      . Capo later withdrew his claim concerning his suspension from union membership on August 12, 2010. Ultimately, the Commission entered a separate order accepting the withdrawal. However, in light of the language of Capo’s notice of withdrawal and in light of the previous partial dismissal of Capo’s unfair labor practice charge, Capo's withdrawal of the unfair labor practice charge can be construed as no more than withdrawal of the charge related to his August 2010 suspension as union president, which was the only unfair labor practice charge then pending.


author: DAVIS, Judge.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. Manuel RAMOS and State of Florida, Respondents.
    No. 2D11-4943.
    District Court of Appeal of Florida, Second District.
    March 2, 2012.

      Rebecca Falcon Kapusta, Assistant Sun-coast Region Legal Counsel, Tampa, for Petitioner.
    Julianne Holt, Public Defender, and Ju-lissa R. Rhoden, Assistant Public Defender, Tampa, for Respondent Ramos.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Respondent State of Florida.
   DAVIS, Judge.

The Department of Children and Family Services (the Department) seeks certiorari review of the trial court’s order finding Manuel Ramos incompetent to proceed to trial on five felony counts and committing him to the custody of the Department for competency restoration training. Ramos concedes that he does not meet the statutory criteria for involuntary commitment. We agree and therefore conclude that the trial court departed from the essential requirements of law. As such, we grant the petition for writ of certiorari.

“As a general rule, certiorari is the proper vehicle for seeking this court’s review of orders committing an individual involuntarily.” In re Commitment of Reilly, 970 So.2d 453, 455 (Fla. 2d DCA 2007). “Although the Department was not a party to the criminal case or commitment proceeding, it has standing to seek certiorari review of the circuit court order because it is affected by the order and no other remedy is available.” Dep’t of Children & Families v. Harter, 861 So.2d 1274, 1275 (Fla. 5th DCA 2003). “ ‘[T]o obtain a writ of certiorari, there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” Reilly, 970 So.2d at 455 (alteration in original) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (internal quotation marks omitted)).

Here, the trial court’s stated basis for its finding that Ramos is incompetent to proceed was “education issues.” And the trial court specifically found that Ramos is not mentally ill as defined by chapter 916, Florida Statutes (2011). This finding is supported by the testimony of both mental health evaluators appointed by the court to assess Ramos’ competency. Both of these evaluators also found that based on the fact that Ramos does not suffer from a mental illness, he does not meet the criteria for commitment under section 916.13. Nevertheless, the trial court made a finding that Ramos “meets the criteria for involuntary placement with the Department of Children and [Family Services] as provided in [section] 916.13(1).”

Section 916.13 is titled “Involuntary commitment of defendant adjudicated incompetent” and provides as follows:

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a)The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.
(2) A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed due to mental illness, and who meets the criteria for involuntary commitment to the department under the provisions of this chapter, may be committed to the department, and the department shall retain and treat the defendant....

(Emphasis added.)

Section 916.106(13) defines “mental illness” as

an impairment of the emotional processes that exercise conscious control of one’s actions, or of the ability to perceive or understand reality, which impairment substantially interferes with a defendant’s ability to meet the ordinary demands of living. For the purposes of this chapter, the term does not apply to defendants with only mental retardation or autism and does not include intoxication or conditions manifested only by antisocial behavior or substance abuse impairment.

In order to meet the involuntary placement criteria of section 916.13(1), the trial court would have had to have found that Ramos does suffer from a mental illness. Because the trial court found that Ramos does not suffer from a mental illness, the court departed from the essential requirements of law in finding that Ramos satisfied the criteria for involuntary placement that is set out by the plain language of section 916.13. See Dep’t of Children & Family Servs. v. Amaya, 10 So.3d 152, 156 (Fla. 4th DCA 2009) (“Contrary to the trial court’s order, an incompetent defendant may not be committed to DCF [under section 916.13] if the statutory criteria are not met.”).

Furthermore, we conclude that this departure caused a material injury without remedy. The Department has exhausted its viable options before the trial court, and because the Department is not a party to the criminal proceeding, it cannot seek a remedy on direct appeal. Cf. Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1147 (Fla. 2d DCA 2004) (“DOC’s nonparty status deprives it of an adequate remedy by direct appeal.”).

Petition granted.

VILLANTI and LaROSE, JJ., Concur.


author: WALLACE, Judge.

text:
    Patrick H. KING, Appellant/Cross-Appellee, v. Cynthia L. KING, Appellee/Cross-Appellant.
    No. 2D10-1839.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.

      Scott T. Orsini of The Orsini <& Rose Law Firm, St. Petersburg, for Appellant/Cross-Appellee.
    Ingrid Anderson, Clearwater, for Appel-lee/Cross-Appellant.
   WALLACE, Judge.

Based on a claim by Patrick H. King (the Former Husband) that a supportive relationship existed between Cynthia L. King (the Former Wife) and the man with whom she resided, the circuit court entered an order that reduced the Former Husband’s monthly alimony payments. Because the supportive relationship predated the parties’ divorce and the alimony award, we hold that the circuit court erred in reducing the amount of the Former Husband’s alimony obligation.

I. THE FACTS AND PROCEDURAL BACKGROUND

The parties were divorced in 2004 after nineteen years of marriage. They had one child, a daughter, who was born in 1991. At the time of the divorce, a company in which the Former Husband owned an interest employed him as an executive. The Former Husband’s monthly gross income was $11,668; his monthly net income was $8456. The Former Wife was a homemaker for most of the marriage, and she reported no income on her financial affidavit. In a marital settlement agreement, the Former Husband agreed to pay the Former Wife $3100 per month in permanent periodic alimony.

In 2009, the same year that the parties’ daughter reached the age of majority, the Former Husband filed a supplemental petition for modification or termination of alimony. The sole basis for the relief requested was that the Former Wife was “cohabitating with a romantic partner in a supportive relationship.”

After the Former Husband filed his petition, each of the parties filed an updated financial affidavit. The Former Husband claimed a monthly gross income of $30,999 and a monthly net income of $16,309 after the payment of alimony. The Former Husband also disclosed that his gross income for 2007 was $371,998. Despite the substantial increase in the Former Husband’s income since the dissolution of marriage, the Former Wife did not file a coun-terpetition for an increase in alimony.

The Former Wife reported a monthly gross income of $5100 and a monthly net income of $3905. The Former Wife’s income was comprised of her $3100 alimony payments, $1000 she earned selling items on the Internet, and a $1000 contribution from Ron Doss, the man with whom she was cohabiting.

In January 2010, the circuit court conducted an evidentiary hearing on the Former Husband’s petition. At the time of the final hearing, the Former Wife was residing at the same residence in Tampa where she had been living when the parties divorced. The Former Wife testified that Mr. Doss has been living in her home since 2002, substantially before the entry of the final judgment of dissolution of marriage.

II. THE CIRCUIT COURT’S RULING

After the conclusion of the hearing, the circuit court entered a final judgment that included the following pertinent findings of fact:

4. At the time of the entry of the Final Judgment of Dissolution of Marriage, on August 6, 2004, [the Former Husband] was knowledgeable that [the Former Wife] and Mr. Doss were eoha-bitating and had been cohabitating before the entry of the Final Judgment of Dissolution of Marriage. The parties’ minor daughter resided with the Former Wife and Mr. Doss before the parties[’] divorce and since the parties’ divorce.
8. The child of the marriage, a daughter, has now reached the age of majority. The child, who also has a child of her own, both live with the Former Wife. The child of the marriage is now attending college. The Former Husband pays for the child’s college education, purchased a car for the child, and pays the child’s health insurance. The Former Husband also paid the health insurance for the new grandchild through the month of February, 2010.
9. Without the $3,100 monthly alimony payment from the Former Husband, the Former Wife testified that she cannot afford to make her mortgage payments on her residence.

With respect to the factors set forth in section 61.14(l)(b)(2), Florida Statutes (2008), the trial court found in pertinent part:

b. The Former Wife and Mr. Doss have resided together in the Former Wife’s permanent place of abode since 2002, before the entry of the Final Judgment in this case.
c. The Former Wife and Mr. Doss have pooled their financial resources. Mr. Doss earns approximately $1000 per month, as does the Former Wife. Mr. Doss gives his money to the Former Wife, who deposits the money in her bank account and pays their respective bills from the money.

Based on these and other findings, the circuit court ruled “that the Former Wife and Mr. Doss are in a supportive relationship as contemplated by Florida Statute 61.14(l)(b) and that their relationship predated the entry of the Final Judgment of Dissolution.” The circuit court considered and rejected the Former Wife’s argument that section 61.14(l)(b) was applicable only to a supportive relationship that began after the entry of the final judgment of dissolution of marriage.

Based on its findings of fact and these rulings, the circuit court reduced the Former Husband’s alimony obligation from $3100 per month to $2100 per month retroactive to February 1, 2009. The Former Husband appealed the final judgment, and the Former Wife cross-appealed.

III. THE APPLICABLE STATUTE

The parties’ arguments center on the proper interpretation and application of section 61.14(l)(b). Subsection (b) of section 61.14(1) is sometimes referred to as “the cohabitation statute.” The statute provides as follows:

(b)(1) The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.
(2) In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:
(a) The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
(b) The period of time that the obli-gee has resided with the other person in a permanent place of abode.
(c) The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
(d) The extent to which the obligee or the other person has supported the other, in whole or in part.
(e) The extent to which the obligee or the other person has performed valuable services for the other.
(f) The extent to which the obligee or the other person has performed valuable sendees for the other’s company or employer.
(g) Whether the obligee and the other person have worked together to create or enhance anything of value.
(h) Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
(i) Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
(j) Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
(k) Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
(3) This paragraph does not abrogate the requirement that every marriage in this state be solemnized under a license, does not recognize a common law marriage as valid, and does not recognize a de facto marriage. This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph.

The legislature added subsection (b) to section 61.14(1) in 2005. Ch. 2005-168, § 1, at 1726-28, Laws of Fla.

To address a petition for the reduction or termination of alimony under section 61.14(l)(b), the circuit court must employ an analysis that may involve four steps. First, the circuit court must “elicit the nature and extent of the relationship in question.” § 61.14(l)(b)(2). To accomplish this task, the circuit court must consider and make findings concerning the factors listed in section 61.14(l)(b)(2) and any other pertinent circumstances. Buxton v. Buxton, 963 So.2d 950, 951-53 (Fla. 2d DCA 2007). In the second step, based on its findings, the circuit court must determine whether the facts establish a supportive relationship. Id. If the circuit court concludes that a supportive relationship does exist, then it must decide whether to reduce or terminate the alimony obligation. Id. at 952-53. In the third step, the circuit court must consider the relevant economic factors for determining an award of separate maintenance or alimony outlined in section 61.08(2). Buxton, 963 So.2d at 955-56. In the fourth step, having considered the relevant economic factors, the circuit court must determine “whether to reduce or terminate the Former Wife’s alimony and, if to reduce it, by how much.” Id. at 956. Here, the circuit court followed this four-step analysis in reaching its decision.

IY. THE STANDARD OF REVIEW

In a case under section 61.14(l)(b), appellate review of the circuit court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. Buxton, 963 So.2d at 953. However, review of the circuit court’s interpretation of the statute and its legal conclusion concerning whether a supportive relationship exists is de novo. Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 632 (Fla.2008); Buxton, 963 So.2d at 953. If the circuit court decides that a supportive relationship exists, appellate review of the circuit court’s decision to reduce or terminate alimony is for abuse of discretion. Id.

V. THE PARTIES’ ARGUMENTS

On his direct appeal, the Former Husband argues that the $1000 per month reduction in his alimony obligation is insufficient. The Former Husband supports his position by contending that the circuit court failed to give adequate consideration to sections 61.08(2)(d) (financial resources), (e) (“when applicable, the time necessary ... to acquire sufficient education or training”), and (g) (all sources of income). After a thorough review of the record, we conclude that the Former Husband’s arguments are without merit and do not warrant further discussion. Furthermore, our disposition of the Former Wife’s cross-appeal moots the Former Husband’s arguments.

The Former Wife makes two separate arguments. First, she focuses on the language of section 61.14(l)(b)(l) providing that the circuit court “may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed.” (Emphasis added.) The Former Wife argues that this portion of the statute authorizes the reduction or termination of alimony only if the supportive relationship began after the divorce was granted and alimony was awarded. The circuit court found that the Former Wife’s supportive relationship with Mr. Doss predated the entry of the final judgment of dissolution of marriage and that the Former Husband knew about the relationship. The Former Wife asserts that because her supportive relationship with Mr. Doss preceded the final judgment of dissolution of marriage, the circuit court was not authorized to reduce or to terminate her alimony under section 61.14(l)(b).

Alternatively, the Former Wife argues that her substantial need for alimony continues despite the supportive relationship and that the circuit court erred in reducing the payments necessary for her support. Because we agree with the Former Wife’s first argument, we need not address her second one.

VI. DISCUSSION

Based on the plain language of the statute, we conclude that a supportive relationship that predates the divorce and the award of alimony does not authorize a reduction or termination of alimony under section 61.14(l)(b). “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). We must “give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla.1992) (citing Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351 (Fla.1984)). “If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” Id. (citing Gardner v. Johnson, 451 So.2d 477 (Fla.1984)).

In accordance with section 61.14(l)(b), the reduction or termination of alimony based on the existence of a supportive relationship between the obligee and another person is authorized only if the relationship has existed “since the granting of a divorce and the award of alimony.” (Emphasis added.) As used in the context of the statute, the word “since” may be defined as “[d]uring the period subsequent to the time when.” The American Heritage Dictionary of the English Language 1624 (4th ed. 2004). Thus the plain language of the statute does not authorize the circuit court to reduce or terminate alimony to the obligee based on a supportive relationship unless the relationship began after the divorce and the award of alimony.

The conclusion that we reach based on the plain language of the statute is confirmed by the placement of subsection (b), the so-called cohabitation statute, in the overall scheme of chapter 61. When the legislature enacted subsection (b) in 2005, it added the new law to section 61.14(1). Ch. 2005-168, § 1, at 1726-28, Laws of Fla. The subject of section 61.14(1) is the modification of support, maintenance, or alimony agreements or orders. The placement of subsection (b) in the statutory section that addresses the modification of alimony based on a change in circumstances cannot be accidental. The concept of supportive relationship involves — at its core — a change in circumstances. Baumann v. Baumann, 22 So.3d 719, 720-21 (Fla. 2d DCA 2009). Accordingly, we construe subsection (b) in pari materia with section 61.14(l)(a), which addresses the modification of alimony generally.

“It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. Where, as in this case,

the legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, excepting as a different purpose is plainly shown.

United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 396, 54 S.Ct. 443, 78 L.Ed. 859 (1934). The reading of subsection (b) of the statute in pari materia with the remainder of section 61.14(1) is particularly appropriate because the 2005 amendment adding subsection (b) merely codifies a special instance where the reduction or termination of alimony may be warranted.

In pertinent part, section 61.14(l)(a) authorizes a modification of alimony when “the circumstances or the financial ability of either party changes.” There are three fundamental requirements for obtaining a modification of alimony under section 61.14(l)(a):

First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature.

Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992) (citations omitted). Thus a modification of alimony “can only be based on changed conditions occurring since entry of the prior award or modification thereto.” Ferguson v. Ferguson, 921 So.2d 796, 797 (Fla. 5th DCA 2006) (citing Hosford v. Hosford, 362 So.2d 973 (Fla. 1st DCA 1978) and § 61.14, Fla. Stat. (2004)). Reading subsection (l)(b) of the statute in pari materia with subsection (l)(a) compels the conclusion that a supportive relationship does not authorize a reduction or termination of alimony unless the relationship began after the divorce and after the alimony award. Otherwise, the statutory requirement of a change in circumstances is not satisfied.

VII. CONCLUSION

On the Former Husband’s direct appeal, we find no error in the circuit court’s decision to limit the reduction in the amount of the monthly alimony obligation to $1000. However, our disposition of the Former Wife’s cross-appeal moots the single issue raised in the Former Husband’s direct appeal. On the cross-appeal, we hold that because the supportive relationship under review predated the divorce and the award of alimony, the circuit court was not authorized to reduce or terminate the Former Wife’s alimony payments under section 61.14(l)(b). It follows that the circuit court erred in reducing the Former Husband’s monthly alimony obligation from $3100 to $2100.

For these reasons, we reverse the final judgment under review. On remand, the circuit court shall enter an order directing the Former Husband to resume making his monthly alimony payments to the Former Wife in the amount of $3100. The circuit court shall also order the Former Husband to pay to the Former Wife the shortage in the monthly alimony payments unpaid since the reduction in the monthly amount became effective. If necessary, the circuit court may take additional evidence and entertain submissions from the parties concerning the amount due and an appropriate schedule for the Former Husband to satisfy his unpaid obligation.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ., Concur.

      1. The Former Wife testified that her monthly mortgage payment was $2832.50.

      . We note that the circuit court entered its final judgment on March 23, 2010. The substantial delay in processing this appeal is attributable — at least in part — to complications arising from the death of the appellate attorney initially retained by the Former Wife.

      . See Odette Marie Bendeck, Florida's “Cohabitation” Statute: The Revolution That Wasn’t, 82 Fla. Bar J. 95, 95 (June 2008) (observing that the reference to cohabitation is a misnomer and is also significantly misleading).

      . The Former Wife does not argue that the circuit court erred in finding that a supportive relationship between Mr. Doss and her existed. Thus we need not address this issue.

      . It is possible that the nature of a supportive relationship that predates the divorce and the award of alimony may change. For example, the person with whom the obligee resides may make a greater or a lesser contribution to the obligee, resulting in a substantial change in the circumstances of the supportive relationship. In this case, the circuit court made no finding that such a change had occurred.


author: NORTHCUTT, Judge.

text:
    C.S., ex rel. D.A.S., Appellant, v. T.S.P., ex rel. A.M.P., Appellee.
    No. 2D10-4451.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.
    James W. Chandler of Law Office of David T. Agoston, P.A., Naples, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

D.A.S., a minor, challenges an injunction for protection against dating violence obtained on behalf of his former girlfriend, A.M.P. We reverse because the injunction was unsupported by legally sufficient allegations or evidence.

In August 2010, AM.P.’s father filed a petition on her behalf against D.A.S. seeking an injunction to protect A.M.P. from dating violence. His entries on the form petition alleged that the two teenagers had dated between September 2009 and February 2010 and that the relationship had involved intimate contact and drugs. According to the petition, A.M.P. broke off the relationship and had no contact with D.A.S. after April or May until August 17, 2010, when A.M.P. and her mother arrived home to find him sitting on their front porch. The petition alleged that D.A.S. ran away when he saw the car pull up. The petition reported that A.M.P. felt that D.A.S. was “stalking her and the house.” In the paragraph of the form requiring the petitioner to explain why she “genuinely fears dating violence by Respondent,” A.M.P.’s father wrote “[h]as been told to stay away from [A.M.P.]. He shows up on our porch.” Based on A.M.P.’s petition, the circuit court issued an ex parte temporary injunction against D.A.S., and it scheduled the matter for an evidentiary hearing.

At the evidentiary hearing, A.M.P. testified that the allegations in the petition were true. She also asserted that she was “in constant fear knowing that he could be anywhere.” She said she was scared that “he could be waiting somewhere to grab [her] and potentially do physical harm to [her].” However, on cross-examination A.M.P. acknowledged that D.A.S. had never been violent with her or threatened her by word or act, either during or after their relationship.

At the conclusion of the evidence, D.A.S.’s attorney moved to dismiss the petition. The court denied the motion and entered a final judgment granting A.M.P. an injunction against D.A.S. for protection against dating violence, to remain in effect for one year.

Section 784.046, Florida Statutes (2010), establishes several causes of action for injunctions to protect variously against repeat violence, sexual violence, and dating violence. “ ‘Dating violence’ means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.” § 784.046(l)(d). “Violence” is defined to include “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a).

The injunction may be sought by

[a]ny person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence, or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against dating violence on behalf of that minor child.

§ 784.046(2)(b).

In this case, neither the allegations of the petition nor the evidence at the hearing demonstrated A.M.P.’s entitlement to an injunction under the statute. The petition did not recount any threat or act of physical violence, and the evidence at the hearing affirmatively showed that there had been none. Although A.M.P. testified that she felt as if. she was being stalked, D.A.S.’s single appearance on her front porch, albeit uninvited, did not suffice.

Stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” § 784.048(2) (emphasis added); see Smith v. Melcher, 975 So.2d 500, 502 (Fla. 2d DCA 2007) (reversing injunction against repeat violence and holding that single act “did not constitute stalking because the statute requires repeated acts”). Harassment, in turn, requires “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.08(l)(a) (emphasis added); see Polanco v. Cordeiro, 67 So.3d 235, 237 (Fla. 2d DCA 2010) (reversing injunction against repeat violence and holding that “a single incident would not support a finding of harassment which requires a course of conduct comprised of a series of acts”).

In sum, A.M.P.’s petition failed to allege adequate grounds for the temporary injunction, and her evidence at the hearing was legally insufficient to justify the permanent injunction.

Reversed.

VILLANTI and BLACK, JJ., Concur.


author: CASANUEVA, Judge.

text:
    J.D.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5469.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

J.D.M. appeals the trial court’s adjudication and disposition orders based on the trial court’s conclusion that there was sufficient evidence to support a revocation of his probation. We affirm in part and reverse in part.

For the second-degree felony of burglary of a dwelling, committed in September 2009, the trial court withheld adjudication and placed the then fifteen-year-old J.D.M. on probation for an indefinite period not to exceed his nineteenth birthday. He subsequently violated this probation twice by committing new crimes, one a third-degree felony possession of marijuana and the other a misdemeanor possession of marijuana. In each instance the trial court continued him on probation. As of June 2010, he was serving three concurrent pro-bations for the two felonies and the misdemeanor. In September 2010, his probation officer filed an affidavit of violation of probation alleging that J.D.M. had violated two conditions of his probation: that he had committed a new law violation by possessing marijuana and that he had absconded from supervision. The trial court held a revocation hearing, found that the State had proven the violations, adjudicated J.D.M. delinquent, revoked the proba-tions, committed him to the Department of Juvenile Justice for a term not to exceed his nineteenth birthday, and placed him in a moderate risk program. J.D.M. now appeals, raising two issues.

In his first issue, J.D.M. claims that there was insufficient evidence to revoke his probation. We find no merit in his arguments and affirm the adjudications of delinquency without further discussion.

In his second issue, J.D.M. raises errors in the trial court’s disposition orders. Previously, he sought to correct these errors via a motion filed pursuant to Florida Rule of Juvenile Procedure 8.135. Although the trial court granted him partial relief, he claims that two uncorrected errors warrant reversal.

In the first uncorrected error claim, J.D.M. asserts that, given his young age, his commitment to the Department of Juvenile Justice for an indefinite period not to exceed his nineteenth birthday for the misdemeanor adjudication is error because it will exceed the term that an adult could be sentenced for the same crime. He is correct. See § 985.455(3), Fla. Stat. (2009). In L.D.K. v. State, 32 So.3d 64, 65 (Fla. 2d DCA 2009), this court considered a similar claim. There, for a first-degree misdemeanor the trial court ordered a disposition of juvenile probation “for a period not to exceed five years or until L.D.K.’s nineteenth birthday, whichever came first.” Id. Recognizing that section 985.455(3) requires that a juvenile’s commitment period is not to exceed “the maximum term of imprisonment that an adult may serve for the same offense,” we concluded “the circuit court may have ordered an illegal disposition.” L.D.K., 32 So.3d at 65. We did not reverse the dispositional order in L.D.K because the juvenile did not preserve the error but affirmed “without prejudice to any right he may have to file an appropriate motion for collateral relief....” Id.

Here, the trial court’s disposition for the first-degree misdemeanor adjudication exceeded the maximum statutory period of one year and is therefore illegal. Unlike in L.D.K, however, J.D.M. did preserve this issue by his rule 8.135 motion. We are not persuaded by the State’s argument that this error is harmless because J.D.M. will still serve a probationary period of longer than a year for the concurrent felony adjudications. See A.M. ex rel. D.M. v. State, 790 So.2d 1233, 1235 (Fla. 5th DCA 2001) (“We also reject the state’s argument that because [the juvenile] is serving a longer concurrent (legal) sentence in [the felony case], she is not prejudiced by an illegal sentence in this [misdemeanor] case.”). There is still a potential for prejudice. Thus the dispositional order for the misdemeanor must be reversed and corrected on remand.

In the second uncorrected error claim, J.D.M. asserts that the trial court erred by failing to enter a written order of revocation of probation specifying the conditions violated. This claim also has merit, see Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006), and requires correction.

In sum, we affirm all three adjudications of delinquency and the dispositional orders for the two felony adjudications. We reverse the dispositional order on the misdemeanor adjudication and remand with instructions to correct the error regarding the duration of probation nunc pro tunc to the date of the disposition order. We also remand for rendition of a written order of revocation of probation specifying the conditions violated. See id. at 685.

Affirmed in part, reversed in part, and remanded with directions.

WALLACE and LaROSE, JJ„ Concur.


author: . STEVENSON, J.

text:
    A.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4923.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   . STEVENSON, J.

A.W. appeals the disposition order finding him guilty of battery on a law enforcement officer, resisting an officer without violence and criminal mischief. Because the evidence failed to establish that the arresting officers were acting in the lawful execution of a legal duty, we reverse the finding of guilt as to resisting an officer without violence.

During appellant’s trial, an officer testified that she responded to an anonymous 911 call reporting a peeping tom/prowler. When she arrived at the community from which the call originated, she was “flagged” down by people sitting in a car. The people indicated that they had made the 911 call. They explained to the officer that, after someone looked into their window, they looked outside and saw two males. The officer followed the 911 callers as they drove to the front of the community where they stopped and pointed out the defendant as one of the males. The officer did not obtain the 911 callers’ names or addresses, did not obtain a copy of the 911 call and was not sure whether they lived in the home where the peeping occurred. Wishing to remain anonymous, the 911 callers left the area after identifying the defendant and could not later be located by law enforcement.

Upon the identification, the officer exited her vehicle and approached appellant, along with a second officer who had arrived on the scene. She asked appellant for his name and address, but he refused to answer. The officer explained that she was conducting an investigation and again asked appellant to provide identifying information. Appellant began to make a call on his cell phone and the officer asked him to stop. Appellant ignored this request. The second officer who was also present reached for appellant’s arm, which prompted appellant to begin “flailing” and yelling. Appellant was handcuffed and placed in the back of a patrol car. At trial, appellant made a motion for judgment of dismissal as to the resisting without violence charge, arguing that the officers were not in the lawful execution of a legal duty because they lacked reasonable suspicion to detain him. The motion was denied.

A trial court’s denial of a motion for judgment of dismissal is reviewed de novo. See M.M. v. State, 72 So.3d 328, 330 (Fla. 4th DCA 2011). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted.” T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011). A conviction for resisting an officer without violence requires proof that “(1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010) (quoting V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001)).

Though the encounter between appellant and the officers began as consensual, it became an investigatory detention when the second officer grabbed appellant. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (the relevant inquiry, considering the circumstances of the encounter, is whether “the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business’ ”) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); Caldwell v. State, 985 So.2d 602, 605 (Fla. 2d DCA 2008) (noting that physical touching by officers is a factor indicating that a seizure has occurred), aff'd, 41 So.3d 188 (Fla.2010). However, the officers lacked reasonable suspicion to detain appellant. “In [resisting without violence] cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity....” Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008). Reasonable suspicion may be based on an anonymous tip, so long as it is corroborated. M.M., 72 So.3d at 330-31. Neither officer testified to observing anything that corroborated the tip from the 911 callers.

Generally, tips provided through face-to-face encounters from anonymous persons, referred to as “citizen informants,” are considered more reliable than anonymous tips offered by telephone. See McKelvin v. State, 53 So.3d 401, 405 (Fla. 4th DCA 2011). Citizen informants are generally more reliable because:

First, a citizen informant may be motivated not by pecuniary gain, but by the desire to further justice. See [State v. Maynard, 783 So.2d 226, 230 (Fla.2001) ]. Second, unlike an anonymous tipster, a witness who directly approaches a police officer may be held accountable for false statements. See United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (citing [Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)]). Third, a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the credibility of the person offering the information. See United States v. Heard, 367 F.3d 1275, 1279 (11th Cir.2004). Fourth, a witness who approaches the police in person may subject himself or herself to potential reprisal from the defendant, thereby rendering the tip more reliable than an anonymous tip. See Christmas, 222 F.3d at 144.

Baptiste v. State, 995 So.2d 285, 291 (Fla.2008). In contrast to the typical citizen informant, here, the 911 callers could not be held responsible for providing false information, nor did they have reason to fear reprisal because their identity could not be determined. Rather, the 911 callers are more like the truly anonymous telephone informant, making their information unreliable. See, e.g., McKelvin, 53 So.3d at 403-05 (anonymous, face-to-face tip unreliable where informant left no name, number or address, there was no evidence that similar crimes had occurred in the area, nor was there any testimony regarding the length of the encounter with the informant so as to determine whether the officer assessed credibility); State v. Rewis, 722 So.2d 863, 864-65 (Fla. 5th DCA 1998) (anonymous, face-to-face tip regarding possible drunk driver unreliable where informant flagged down officers at rest stop, provided no identifying information, officers could not identify truck informant drove and informant’s motives were unknown). As such, the tip from the 911 callers did not provide the officers with reasonable suspicion to detain the defendant and the officers were not acting in the lawful execution of a legal duty. Davis, 973 So.2d at 1279. Thus, the finding of guilt as to resisting an officer without violence is reversed.

Lastly, we reject appellant’s unpre-served challenge to the adjudication of guilt for battery on a law enforcement officer. Though the police were not engaged in the lawful execution of a legal duty, there was no indication that the officers were not acting in good faith.

A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

§ 776.051(1), Fla. Stat. (2009). Compare Gonzalez v. State, 38 So.3d 226, 229 (Fla. 2d DCA 2010) (explaining that, in exclusionary rule context, an officer has acted in “good faith” where an officer “ ‘has acted in an objectively reasonable manner, in objective good faith, and as a reasonably well-trained officer would act’ ”) (quoting Pilieci v. State, 991 So.2d 883, 896 (Fla. 2d DCA 2008)). Although we have found after legal arguments and briefings that the officers lacked reasonable suspicion to detain appellant, we cannot say on this record that the officers’ “in the field” determination was unreasonable or motivated by improper purposes.

Reversed in part and affirmed in part.

MAY, C.J., and GROSS, J., concur.


author: SCHWARTZ, Senior Judge.

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Y.C., mother, and Guardian Ad Litem Program, Respondents.
    No. 3D11-1899.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      Karla Perkins, Miami, for the Department of Children and Families.
    Restivo and Reilly, Bernadette Restivo and Jessica Reilly, Key Largo, for respondent, Y.C.; Hillary S. Kambour, for respondent, Guardian Ad Litem Program.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The Florida Department of Children and Families seeks review of an order directing it to provide a Chapter 39 case plan and services for the mother Y.C. and her three children. Unhappy with her situation, that of her children, and the fact that after investigation, DCF had previously determined her complaints did not warrant Department intervention, Y.C. filed a ‘private’ dependency petition ‘against’ herself and O.D., the children’s father, in which she alleged that she and her children were at risk of harm based on O.D.’s various acts of violence., Notwithstanding the DCF’s decision, the GAL Program moved to have the trial court order the Department to file a case plan and provide services. DCF filed a limited appearance to object to that motion. A few days later, the GAL Program joined in Y.C.’s dependency petition. A month after that, with no trial conducted and no evidence presented, the court entered an order of dependency. The sole basis then or ever asserted for the order was the fact that Y.C. had defaulted and thus ‘admitted’ her oum allegations of dependency, DCF maintains that the order which followed, requiring the agency to provide a case plan and services, departed from the essential requirements of the law. We agree for several reasons, most significantly because the order was premised on a fundamentally invalid determination of dependency.

First, we see no acceptable way for one to file a petition, acquiesce to the allegations of that petition, and thereby secure judicial relief. This is not a case or controversy and not, therefore, a basis for court action. The respondents base their position on the statutory language providing that “any ... person with knowledge of the facts alleged,” not excluding a parent, may file a petition for dependency. See § 39.501(1), Fla. Stat. (2010). Reliance on that language to support the order below, however, just makes no sense. See Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1235 (Fla.2009) (“We are not required to abandon either our common sense or principles of logic in statutory interpretation.”). A scenario in which the same person asks the court to act and then admits the need for that action, without more, simply does not legally confer authority upon it to do so. Rather than presenting a legally cognizable proceeding, it involves merely an unopposed request for the assistance of the court in a similar request to the responsible agency. When as here, the agency has already declined that request, it is wholly improper for the court to intervene.

More to the point, a valid dependency determination rests on a finding by the court of one or more of the conditions enumerated in section 39.01(15), Florida Statutes (2010). We reject the premise that the statutory obligation of a court to find that a child is dependent and make findings supporting that conclusion may be satisfied based on no more than a parent’s “agreement” with herself. When the court makes a determination of dependency premised only on such a ‘default,’ this requirement is not met.

The Florida Rules of Juvenile Procedure addressing dependency proceedings provides two routes by which a determination of dependency may be accomplished — either by admission, see Fla. R. Juv. P; 8.325, or by adjudicatory hearing. See Fla. R. Juv. P. 8.330. Each ‘route’ however requires the trial judge to list the factual determinations relied on. See Fla. R. Juv. P. 8.332. Even in the case of an ‘admission’ — which as we read that provision clearly envisions adverse parties coming to an agreement-the court’s order must include “findings of fact specifying the act or acts causing dependency, by whom committed, and facts on which the findings are based.” See Fla. R. Juv. P. 8.325. With no evidence taken and no countervailing position advanced, there was no opportunity for the trial judge to make the crucial findings necessary to a valid dependency determination., Without a valid dependency determination, the trial court acted in excess of its jurisdiction in directing DCF to provide the services ordered.,

Certiorari granted.

      . These children are O.D., Jr., born December 26, 1997; L.D., born August 25, 2000; and A.D., born May 11, 2003.

      . The petition recounted, among many other things, that Y.C. had sought and was granted a temporary domestic violence injunction, September 25, 2010. However in response to the investigation prompted by that action, Y.C. denied to a CPI that the children had witnessed any of the physical abuse being investigated and said she did not believe O.D. had placed the children at harm. The CPI report also reflects that Y.C. and the children had moved to an undisclosed location. On November 2, 2010, therefore, the very, next day after Y.C. filed her petition, DCF closed its investigation, finding that the allegations of abuse had not been substantiated. The allegations of an earlier report of domestic violence had likewise been discounted by Y.C. herself to an investigating CPI.

      . The agency’s conclusion was based on findings that (1) Y.C. had informed the CPI that the children did not witness any of the physical abuse alleged; (2) none of the children disclosed domestic violence between their respective mothers and O.D.; (3) Y.C. informed the CPI that she did not believe O.D. had placed the children in harm; and (4) Y.C. and her three children had relocated away from O.D.

      . The co-respondent father denied the allegations. That issue remains unresolved.

      . It is difficult to understand what those services may have been or what the case plan might have provided as the children were now living with the mother, and the father, the only alleged culprit, now has nothing to do with them.

      . We also agree that certiorari review is the appropriate vehicle for review. See Dep’t of Corrs. v. Harrison, 896 So.2d 868, 869 (Fla. 5th DCA 2005) ("[T]he Department of Children and Families has successfully sought certiorari review in cases where a trial court allegedly exceeded its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted under the law.”); see also Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000).

        .Lord v. Veazie, 49 U.S. (8 How.) 251, 255, 12 L.Ed. 1067 (1850), provides:
      [A]ny attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always repre-hened, and treated as a punishable contempt of court.
      Likewise, in Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937), the Court said:
      The Constitution (article 3, s2) limits the exercise of the judicial power to ‘cases’ and ‘controversies.’

      A 'controversy' in this sense must be one that is appropriate for judicial determination. Osborn v. Bank of United States, 9 Wheat. 738, 819, 6 L.Ed. 204.... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, [e.s.].

        See Bryant v. Gray, 70 So.2d 581, 584 (Fla.1954) ("[Tjhere must be a bona fide dispute between the contending parties as to a present justiciable question.’’); A.G. v. Dep’t of Children & Family Servs., 932 So.2d 311, 313 (Fla. 2d DCA 2006) ("It is the function of a judicial tribunal to decide actual controversies” (quoting Montgomery v. Dep’t of Health

        & Rehabilitative Servs., 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985))); Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 377 (Fla. 3d DCA 2006) ("To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation.”); Collins v. Gov’t Emp. Ins. Co., 922 So.2d 353, 353 (Fla. 3d DCA 2006) ("To have standing the plaintiff must show that a case or controversy exists between that plaintiff and the defendant.”).

      . If, as here, the court on its own motion agrees to require executive action which is otherwise within the executive agency's own discretion, the doctrine requiring separation of powers is directly invoked and violated. As we stated in Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005):
      Article II, section 3, of the Florida Constitution provides that:
      The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
      "Under the separation of powers doctrine 'no branch may encroach upon the powers of another.’ See Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260, 264 (Fla.1991). When a court interferes with an executive agency’s discretion in spending its appropriate funds, it is encroaching on the powers of the agency. See, e.g., Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1148 (Fla. 2d DCA 2004). Judges may not direct an executive agency to spend its money in a particular way. See Brown v. Feaver, 726 So.2d 322, 325 (Fla. 3d DCA 1999).” Office of State Attorney for Eleventh Judicial Circuit v. Polites 904 So.2d 527, 532 (Fla. 3d DCA 2005). See also Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 769 (Fla.2005) (”[N]o branch may encroach upon the powers of another.”); State v. Cotton, 769 So.2d 345, 353 (Fla.2000) (observing that our courts have “traditionally applied a strict separation of powers doctrine”); Merkle v. Guardianship of Jacoby, 912 So.2d 595, 600 (Fla. 2d DCA 2005) (”[T]he limitation on the exercise of judicial power to the decision of justiciable controversies has been attributed to judicial adherence to the doctrine of separation of powers. Ervin v. City of N. Miami Beach, 66 So.2d 235, 236 (Fla.1953) (quoting Anderson on Declaratory Judgments, vol. 1, 2d ed., 66)”); see generally Agency for Persons with Disabilities v. J.M., 924 So.2d 1, 2 (Fla. 3d DCA 2005) ("A trial court may not interfere with and does not have the authority to enter into the decision-making process which is delegated to a state agency!.]”); Dep’t of Children & Family Servs. v. M.H., 830 So.2d 849, 850 (Fla. 2d DCA 2002) (”[T]he circuit court lacks jurisdiction to direct a specific placement and treatment of an individual committed to the department!;.]”); State v. D.D.B., 737 So.2d 1178 (Fla. 2d DCA 1999) (concluding that trial judge did not have discretion to dismiss criminal mischief charge against juvenile on court's own motion, and doing so encroached upon prosecutor's authority); Simms v. State, Dep’t of Health & Rehab. Servs., 641 So.2d 957, 960 (Fla. 3d DCA 1994) (The separation of powers clause prohibits unlawful encroachment by one branch upon powers of another branch.); State v. P.S., 587 So.2d 672, 672 (Fla. 5th DCA 1991) ("In dismissing the petition upon its own motion, the trial court encroached upon the prosecutorial authority of the state attorney.”); Dep't of Health &

        Rehab. Servs. v. Brooke, 573 So.2d 363, 370 (Fla. 1st DCA 1991) (observing that the legislature’s appropriations power was "off limits to the courts” and "had the [court’s] orders ... required the Department to make placements that would exceed the amounts set forth in the annual appropriations act by the legislature, or ... encroached upon the legislature’s power of appropriation, they would have been rendered in excess of the judges' jurisdiction”); State, ex ret Dep’t of Health & Rehabilitative Servs. v. Nourse, 437 So.2d 221, 222 (Fla. 4th DCA 1983) (”[T]he court does not have jurisdiction to manage the details of how the Department of Health and Rehabilitative Services will attempt to rehabilitate juveniles.”); Dep’t of Children & Family Servs. v. I.C, 742 So.2d 401, 404 (Fla. 4th DCA 1999) (”[T]he court has no general jurisdiction over DCF to monitor and evaluate its functioning.”).

      .Section 39.01(15), Florida Statutes provides;
      (15) "Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
      (a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
      (b) To have been surrendered to the department, the former Department of Health and Rehabilitative Services, or a licensed child-placing agency for purpose of adoption;
      (c) To have been voluntarily placed with a licensed child-caring agency, a licensed child-placing agency, an adult relative, the department, or the former Department of Health and Rehabilitative Services, after which placement, under the requirements of this chapter, a case plan has expired and the parent or parents or legal custodians have failed to substantially comply with the requirements of the plan;
      (d) To have been voluntarily placed with a licensed child-placing agency for the purposes of subsequent adoption, and a parent or parents have signed a consent pursuant to the Florida Rules of Juvenile Procedure;
      (e) To have no parent or legal custodians capable of providing supervision and care; or
      (f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.

      . See Fla. R. Juv. P. 8.400(d)(1) ("The department shall prepare a draft of a case plan for each child receiving services under Chapter 39, Florida Statutes.”).

      . Rule 8.325(c), addressing answers and pleadings, specifically provides:
      Admission of or Consent to Dependency. The parent or legal custodian may admit or consent to a finding of dependency. The court shall determine that any admission or consent to a finding of dependency is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the admission or consent, and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order in addition to findings of fact specifying the act or acts causing dependency, by whom committed, and facts on which the findings are based. If the answer admits the allegations of the petition it shall constitute consent to a predisposition study.

      . Rule 8.330(a), addresses adjudicatory hearings, and provides:
      Hearing by Judge. The adjudicatory hearing shall be conducted by the judge, without a jury, utilizing the rules of evidence in use in civil cases. At this hearing the court shall determine whether the allegations of the dependency petition have been sustained by a preponderance of the evidence. If the court is of the opinion that the allegations are sustained by clear and convincing evidence, it may enter an order so stating.

      . Rule 8.332(a), addressing orders finding dependency provides:
      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.

      . While we need not address the reasons for the dependency determination, the only two conceivable subsections which might support a determination of dependency, sections 39.01(15)(a), or (f), indisputably do not apply. Y.C. conceded that the children had not been "abandoned, abused, or neglected,” § 39.01(15)(a), and it is clear that Y.C. and her three children have now moved away from O.D. Thus, there is no factual basis for concluding the children "[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians” as required by section 39.01(15)(f). See L.A.G. v. Dep’t of Children & Family Servs., 963 So.2d 725, 727 (Fla. 3d DCA 2007) ("For a dependency adjudication to be affirmed, there must be competent substantial record evidence that the child was either (1) abused, abandoned, or neglected by the parents, or (2) at imminent risk of being abused, abandoned or neglected by the parents.”); In re K.V., 939 So.2d 200, 202 (Fla. 2d DCA 2006) ("[I]n order to declare a child dependent, the parent's harmful behavior must pose a present threat to the child based on current circumstances.”) (quoting M.B. v. Dep’t of Children & Family Servs. (In re K.B.), 937 So.2d 709, 711 (Fla. 2d DCA 2006))); J.C. v. Fla. Dep't of Children & Family Servs., 937 So.2d 184, 186 (Fla. 3d DCA 2006) ("The allegations contained in the dependency petition must be established by a preponderance of the evidence.”).

      . See State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So.2d 231, 233 (Fla. 3d DCA 2001) ("A trial court cannot delegate the sole authority to perform 'a purely judicial function.' ” (quoting Larson v. State, 572 So.2d 1368, 1371 (Fla.1991))). See also Lackner v. Central Fla. Inv., Inc., 14 So.3d 1050, 1053 (Fla. 5th DCA 2009) ("Judicial powers vested in the courts by constitution or statute are nondelegable.”); Toiberman v. Tisera, 998 So.2d 4, 8 (Fla. 3d DCA 2008) ("[N]o court in this state can delegate its judicial authority to any person serving the court in a non-judicial function.” (citations omitted)); Jones v. State, 749 So.2d 561 (Fla. 2d DCA 2000) (concluding judge could not delegate to the clerk its discretionary authority as provided by statute, to excuse jurors).

      . Not only were the 'findings’ in this case based on no more than the mother’s 'default' but they lacked the imperative specificity; the dependency determination stated only;
      Findings as to Mother: Exposure to Domestic Violence; Failure to Protect children from domestic violence.
      The order failed to set forth any factual findings as to exposure to domestic violence or failure to protect the children, repeating the error observed in J.C.G. v. Department of Children & Families, 780 So.2d 965, 966 (Fla. 5th DCA 2001). In that case, the Fifth District vacated an order of dependency and remanded the case because the lower court’s "written order statfed] that the father had ‘abandoned the children,’ ” however as Fifth District observed, "[ujnfortunately, the order failed to set forth any factual findings as to abandonment.”). See M.E.G. v. Dep’t of Children & Families, 754 So.2d 879, 880-81 (Fla. 5th DCA 2000) ("An order adjudicating a child dependent must contain specific facts supporting the adjudication.”); McKenzie v. Dep't

        of Health & Rehab. Servs., 663 So.2d 682, 684 (Fla. 5th DCA 1995) ("Florida Rule of Juvenile Procedure 8.325(c) requires that an order adjudicating dependency incorporate 'findings of fact specifying the act or acts causing dependency, by whom committed, and facts upon which the findings are based.' See In re S.H., 642 So.2d 809, 810 (Fla. 2d DCA 1994) (refusing to conclude that parent’s oral consent to petition permitted entry of order of disposition without findings to support adjudication)”); In the Interest of C.S., 503 So.2d 417 (Fla. 1st DCA 1987) (despite deficiency of order adjudicating child dependent due to lack of factual findings, order reversed where petition and evidence failed to present adequate support for finding of dependency based upon neglect); In the Interest of D.S., 492 So.2d 797, 799 (Fla. 2d DCA 1986) ("[Ojrders of adjudication of dependency must contain a statement of the facts upon which they are based.”)

      . We are bound to say that neither the trial court nor the GAL should have allowed itself to become involved in the combination charade-theatre of the absurd, which played itself out below.

      . Still another basis for our conclusion that the order to provide services was improperly entered on the 'default' is that the adjudication was contrary to the court’s obligation to hold an adjudicatory hearing after the father’s objection. As this court explained in Monteiro v. State, 477 So.2d 45, 45-6 (Fla. 3d DCA 1985):
      The consent to dependency of a child by one parent does not affect the right of the other parent to continue in his or her parental role. Where one of the parents continues to deny the allegations in the dependency petition, an adjudicatory hearing must be held. § 39.408, Fla.Stat. (Supp.1984).
      See Fla. R. Juv. P. 8.315 ("If an admission or consent is entered and no denial is entered by any other parent or legal custodian, the court shall schedule a disposition hearing to be conducted within 15 days. If a denial is entered, the court shall set an adjudicatory hearing within the period of time provided by law and appoint counsel when required.”); Florida Bar, Florida Juvenile Law and Practice § 13.1 (2011) (citing Monteiro and observing "The consent of one parent to the adjudication of dependency is sufficient only if the petition alleges that only the consenting parent committed acts or omissions that led to the child’s dependency. If both parents are named in the petition, the consent of one parent to the adjudication of dependency is insufficient to establish the dependency, because this violates the due process rights of the non-consenting parent.” [e.s.] )
      In the instant case, the transcript of the June 13, 2011 hearing on the matter confirms the father’s denial of the dependency allegations.
      MR. HERSHOFF [on behalf of father]: Yes, Judge. We filed a motion to dismiss today based on the fact that we don't believe the allegations that are in the petition are sufficient with whatever has been before you to be able to go forward. Mr. Deleon, as you know, has not entered a plea yet and will be entering a plea of denial in dependency.
      The attorney appearing on behalf of the DCF reiterated the problem with adjudicating the children dependent in the face of the father’s objection:
      MR. GARDNER: I cited case law. In any event, Judge, this matter was investigated by investigators from DCF and they found no facts warranting filing a petition. Thereafter, as you know, the mother filed a private petition. She named herself as the petitioner and the respondent. And she pled the petition, thereby invoking this court’s jurisdiction. We believe that’s improper and it prejudices the father’s constitutional rights to raise his children.

      MR. GARDNER: At this juncture nothing has [] been proven against the dad. So all we have is the bare-bones allegations-of mom against herself. That’s all we have. To adjudicate a child under that circumstance is unusual to say the least. Again, it infringes on the dad’s rights.


text:
    D.C., J.D., and T.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D11-2150.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Rehearing Denied March 23, 2012.
    D.C., in proper person; Joseph M. Al-bury, Key West, for appellant J.D.; Eugene F. Zenobi and Kevin Coyle Colbert, Regional Counsel, Third District, for appellant T.R.
    Karla Perkins, Appellate Counsel, Department of Children and Families; Hillary Kambour, Appellate Counsel, Guardian Ad Litem Program, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

D.C., the mother of eleven-year-old G.R., seven-year-old J.K., four-year-old D.D., and two-year-old J.D., T.R., the father of G.R., and J.D., the father of D.D. and J.D., appeal from orders terminating their parental rights to all of their children. The judgment against the fathers, J.D. and T.R., is affirmed. See V.J. v. Dep’t of Children & Families, 949 So.2d 1128 (Fla. 3d DCA 2007).

We reach a different result as to the mother, D.C. The record shows that on March 30, 2010, the trial court denied an identical petition to terminate her parental rights filed by the Department of Children and Families. Principles of collateral es-toppel dictate therefore that only such conduct as may have occurred between that date and the January 10, 2011 filing of the present petition may be considered. See Donahue v. Davis, 68 So.2d 168 (Fla.1953); Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Gray v. Gray, 91 Fla. 103, 107 So. 261 (Fla.1923).

Our examination of the record shows beyond question that no valid grounds for termination occurred during that time. Indeed, it demonstrates that the only change in the very favorable circumstances of the mother, including her successful efforts to break her drug dependency, to secure and hold full-time employment and to find a satisfactory home, was an arrest for an alleged offense which was later nolle prossed, and as to the circumstances of which there was no evidence, but which caused her to miss a single parenting class, part of a case plan which was otherwise fully complied with. Obviously, this far from justifies the termination of her parental rights. See I.Z. v. B.H., 53 So.3d 406 (Fla. 4th DCA 2011) (“[Fjailure to comply with a case plan cannot, standing alone, provide the basis for termination of parental rights.”); In re S.F., 22 So.3d 650 (Fla. 2d DCA 2009) (reversing termination of parental rights, even in the face of drug relapses by the parents, where the Department failed to show that the circumstances which prompted the creation of the case plan were not significantly remedied such that the well-being and safety of the child were no longer endangered); D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798 (Fla. 3d DCA 2006) (reversing termination of parental rights sparked by a domestic violence incident where the child was not even present, despite mother’s great strides in leaving an abusive relationship, maintaining employment, completing all tasks requested by the Department, and submitting to residential substance abuse treatment); M.H. v. Dep’t of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004) (“[I]t is well settled that a parent’s drug addiction, standing alone, is insufficient ground upon which to terminate parental rights.”); B.B. v. Dep’t of Children & Families, 793 So.2d 988 (Fla. 2d DCA 2001) (reversing termination of parental rights and finding that the State acted prematurely where, although the mother had not fully complied with the case plan, she had not ignored it either, and was making a determined effort to rehabilitate herself under a second plan prompted by the birth of another child while the children were otherwise well cared for in foster care or with relatives); R.W.W. v. Dep’t of Children & Families, 788 So.2d 1020 (Fla. 2d DCA 2001) (reversing termination of parental rights despite mother’s chronic cocaine problem and lack of employment, home or family support, where trial court did not find that these conditions could not be resolved through provision of services and mother had never been offered a case plan with the goal of reunification).

Affirmed as to the fathers; reversed and remanded with respect to the mother.


author: VILLANTI, Judge.

text:
    Rubin A. STROUD, a/k/a Rudin A. Stroud, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1208.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.

      James Marion Moorman, Public Defender, and J. Rafael Rodriguez, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Rubin Stroud challenges his convictions and sentences for aggravated assault with a deadly weapon. We affirm his convictions without comment. As to his sentences, we write because Stroud correctly argues that the written judgment and sentences fail to accurately reflect the trial court’s oral pronouncement that his multiple minimum mandatory sentences run concurrently. See Denson v. State, 633 So.2d 1137, 1138 (Fla. 2d DCA 1994) (explaining that multiple minimum mandatory sentences must be imposed concurrently rather than consecutively when the convictions do not arise from separate incidents). However, Stroud did not properly preserve this issue by means of a Florida Rule of Criminal Procedure 3.800(b) motion. Therefore, we affirm his sentences without prejudice to any right Stroud might have to raise the sentencing issue in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) or 3.850. See Jackson v. State, 983 So.2d 562, 568 (Fla.2008); McElrath v. State, 10 So.3d 1209, 1210 (Fla. 2d DCA 2009).

Affirmed.

DAVIS and LaROSE, JJ., Concur.