author: ORFINGER, J.

text:
    FLORIDA INSURANCE GUARANTY, etc., Appellant, v. Gerassimos MAROULIS and Irina Dmitrieva, Appellees.
    No. 5D13-3185.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.

      Diane H. Tutt and Hinda Klein, of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow, & Schefer, P.A., Hollywood, for Appellant.
    George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O’Lakes, for Appellees.
   ORFINGER, J.

The Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner’s insurance dispute with Gerassimos Maroulis and Irina Dmitrieva (collectively “the Insureds”). FIGA contends that the Insureds waived their rights to appraisal. We agree and reverse the trial court’s order.

In October 2009, the Insureds had a homeowner’s insurance policy with Home-Wise Preferred Insurance Company. Their home sustained suspected sinkhole damage, but HomeWise denied the claim. In June 2010, the Insureds sued Home-Wise for breach of contract. Despite a neutral evaluator’s finding confirming the presence Of a sinkhole, HomeWise filed its answer, denying that a covered sinkhole loss had occurred. In September 2011, HomeWise was placed into receivership. In June 2012, after FIGA was activated, the Insureds amended their complaint to substitute FIGA for HomeWise. The amended complaint did not mention appraisal.

On July 30, 2012, FIGA filed its answer. FIGA noted that it had “not denied the [Insureds’] claim,” and admitted “that the [Insureds] are entitled to the amount payable for the actual repair of the loss/actual repairs to the property,” within certain limits. On October 5, 2012, by letter, FIGA “formally accepted] coverage” of the Insureds’ claim, and “extended] coverage for the recommendations of the neutral evaluator.” FIGA asserted that it was withholding payment only until the Insureds entered into a contract for the repairs that the neutral evaluator recommended.

On February 1, 2013, the Insureds filed a second amended complaint, demanding a jury trial and making no mention of appraisal. On April 17, 2013, the Insureds filed a second request for admissions, and, shortly thereafter, the parties attended mediation, which yielded no agreement. It was not until July 15, 2013, that the Insureds moved to compel appraisal. The trial court granted the Insureds’ motion to compel appraisal and this appeal followed.

The issue of waiver of appraisal rights is reviewed de novo when the facts are undisputed. Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488, 490-494 (Fla. 5th DCA, 2014). A waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. See id. at 493 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)). As we explained in Branco,

the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary fpcus is whether [the insureds] acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[a]ppraisal exists for a limited purpose — the determination of ‘the amount of the loss.’ ” Citizens Prop. Ins. Corp. v. Mango Hill # 6 Condo. Ass’n, 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). Until the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of appraisal) regarding the value of the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010) (reversing prematurely-ordered appraisal). An insurer that denies coverage does not need to seek appraisal before litigation because “[i]t would make no sense to say that [the insurer] was required to request ... appraisal on a loss it had already refused to pay.” Gonzalez v. State Farm, Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused”). Absent contract language to the contrary, we see no reason why the insured should not have the same flexibility in cases when coverage is denied. But see Cypress Pointe at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No. 6:10-cv-1459-Orl-36TBS, 2012 WL 6138993, at *2 (M.D.Fla. Nov. 19, 2012) (finding insured acted inconsistently with appraisal right by pursuing litigation for two years, though insurer consistently denied coverage).

148 So.3d at 494.

Here, FIGA acknowledged that it owed the Insureds “the amount payable for the actual repair of the loss/actual repairs to the property” on July 30, 2012, and “formally” accepted coverage by letter on October 5, 2012. Appraisal became appropriate at that time. Id. at 491 (explaining appraisal not appropriate until coverage conceded or determined by court). However, unlike in Branco, the Insureds waited almost a year after FIGA’s admission of coverage before demanding appraisal. During that time, the Insureds filed a second amended complaint, requested further admissions, and attended mediation. The long delay, combined with the significant litigation activities pursued by the Insureds after coverage was conceded, distinguishes this case from Branco. Taken together, these undisputed facts demonstrate that the Insureds acted inconsistently with, and waived, their rights to appraisal. See Morrell v. Wayne Frier Manufactured Home Ctr., 8B4 So.2d 895, 395-98 (Fla. 5th DCA 2008) (finding waiver where party litigated for eleven months with various motions and pleadings); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver when party engaged in “aggressive” litigation for nine months); Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 176 (Fla. 4th DCA 1998) (finding waiver when party actively litigated for thirteen months); Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So.2d 1170, 1171-78 (Fla. 3d DCA 1997) (finding waiver following fourteen months of litigation and demand for appraisal one month before trial).

For these reasons, we conclude the trial court’s finding that the Insureds did not waive their rights to appraisal was error and reverse.

REVERSED and REMANDED.

WALLIS and LAMBERT, JJ., concur.

      . "FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent.” Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011); see §§ 631.51, 631.55, Fla. Stat. (2011).

      . Because this issue is dispositive, we do. not address FIGA’s other arguments.


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA INSURANCE GUARANTY, etc., Appellant, v. Eduardo RODRIGUEZ and Dora Rodriguez, Appellees.
    No. 5D13-3362.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.

      Diane H. Tutt and Hinda Klein, of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow, & Schefer, P.A., Hollywood, for Appellant.
    . George A. Vaka and Nancy A. Lauten, of Vaka Law Group, .Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O’Lakes, for Appellees.
   ORFINGER, J.

The Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner’s insurance dispute with Eduardo and Dora Rodriguez. FIGA contends that the Rod-riguezes waived their right to appraisal. We agree and reverse the trial court’s order.

In October 2008, the Rodriguezes had a homeowner’s insurance policy with Home-Wise Preferred Insurance Company. Their home sustained suspected sinkhole damage, and in February 2010, HomeWise agreed that a covered loss had occurred. The parties disagreed as to what repairs were necessary and participated in neutral evaluation. In February 2011, the evaluator issued his report. Dissatisfied, in April 2011, the Rodriguezes sued for breach of contract. Their complaint did not mention appraisal. The Rodriguezes simultaneously filed requests for admissions and production, and interrogatories. In November 2011, following HomeWise’s insolvency, the case was stayed. In June 2012, after FIGA was activated, the Rodri-guezes amended their complaint to substitute FIGA for HomeWise. The amended complaint did not mention appraisal, and was accompanied by more discovery requests.

On July 30, 2012, FIGA filed its answer, admitting coverage. In October 2012, the Rodriguezes noticed the case for trial. In February 2013, the Rodriguezes filed additional discovery requests. After an unsuccessful mediation, both parties deposed the neutral evaluator. The Rodriguezes did not move to compel appraisal until July 17, 2013, which the trial court granted. This appeal followed.

The issue of waiver of appraisal rights is reviewed de novo when the facts are undisputed. Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488, 494 (Fla. 5th DCA Sept. 19, 2014). A waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. See id. at 493 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)). In Branco, we explained that

the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether [the insureds] acted inconsistently with then-appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[ajppraisal exists for a limited purpose — the determination of ‘the amount of the loss.’” Citizens Prop. Ins. Corp. v. Mango Hill # 6 Condo. Ass’n, 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). Until the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of appraisal) regarding the value of the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010) (reversing prematurely-ordered appraisal). An insurer that denies coverage does not need to seek appraisal before litigation because “[i]t would make no sense to say that [the insurer] was required to request ... appraisal on a loss it had already refused to pay.” Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to compel appraisal does not accrue until the policy conditions' precedent have been performed or waived, and appraisal is then refused”). Absent contract language to the contrary, we see no reason why the insured should not have the same flexibility in cases when coverage is denied. But see Cypress Pointe at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No. 6:10-cv-1459-Orl-36TBS, 2012 WL 6138993, at *2 (M.D.Fla. Nov. 19, 2012) (finding insured acted inconsistently with appraisal right by pursuing litigation for two years, though insurer consistently denied coverage).

Id. at 494.

Here, HomeWise acknowledged that the Rodriguezes- sustained a covered loss in February 2010. Appraisal became appropriate at that time. See id. at 490 (explaining appraisal not appropriate until coverage conceded or determined by court). However, the Rodriguezes waited three years before demanding appraisal. During that period, the Rodriguezes sued HomeWise and FIGA, filed several discovery requests against both, pursued other litigation activities, and never reserved their rights to appraisal. Even accounting for the stay after FIGA’s activation, the long delay, combined with actions taken by the Rodriguezes after coverage was conceded, distinguishes this case from Branco. Taken together, these undisputed facts demonstrate that the Rodriguezes acted inconsistently with, and waived, their rights to appraisal. See Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 395-98 (Fla. 5th DCA 2003) (finding waiver where party litigated for eleven months with various motions and pleadings); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver when party engaged in “aggressive” litigation for nine months); Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 176 (Fla. 4th DCA 1998) (finding waiver when party actively litigated merits for thirteen months); Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So.2d 1170, 1171-73 (Fla. 3d DCA 1997) (finding waiver following fourteen months of litigation and demand for appraisal one month before trial).

For these reasons,' we conclude the trial court’s finding that the Rodriguezes did not waive their rights to appraisal was error, and reverse.

REVERSED and REMANDED.

WALLIS and LAMBERT, JJ., concur.

      . "FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011); see §§ 631.51, 631.55, Fla. Stat. (2011).

      . Because this issue is dispositive, we do not address FIGA’s remaining arguments.


author: PER CURIAM.

text:
    Dante DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5011.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Dante Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur. '


author: BLACK, Judge. .

text:
    Kenneth P. GERBER, Appellant, v. Maria GERBER, Appellee.
    No. 2D14-1059.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
    Rehearing Deiiied Dec. 23, 2014.

      Kenneth P. Gerber, pro se.
    Susan J. Silverman, Sarasota; and Crystal C. Roland of Law Office of Crystal C. Roland, P.A., Miami, for Appellee.
   BLACK, Judge. .

Kenneth Gerber (Former Husband) challenges the trial court’s order approving the magistrate’s report and recommended order and the trial court’s order denying his motion to vacate. Although clarification of the partial settlement agreement regarding objections to and reimbursement of the children’s medical expenses was appropriate, we conclude that the order of civil contempt was premature. Further, since the magistrate’s finding concerning the amount owed by the Former Husband for the medical expenses is not supported by competent, substantial evidence, it was approved by the trial court in error. The Former Husband’s final assertion that he lacked adequate notice of the issues to be addressed at the hearing is ■without merit.

In May 2011, Maria Gerber (Former Wife) and the Former Husband entered into a partial settlement agreement (PSA). The PSA was ratified by the partial final judgment of dissolution entered in June 2011, and it provides in pertinent part that “[t]he parties shall equally (50%/50%) pay any reasonable and necessary medical ... expenses” and that “[e]ach [party] shall pay directly or reimburse the other their portion of said expenses or object to same ... within fifteen (15) days of the receipt of such notice.” In February 2013, the trial court entered a second partial final judgment related to the long distance parenting plan. Pursuant thereto, the Former Wife was awarded sole decision-making authority over all medical decisions related to the children. A few months later in June 2013, the Former Wife filed a motion for civil contempt and enforcement due to the Former Husband’s failure to pay his share of the children’s medical expenses. In support of her motion, the Former Wife also presented her interpretation of the procedure for objections to medical expenses.

Following a hearing on the Former Wife’s motion, the magistrate issued a report and recommended order acknowledging that the Former Wife’s request for clarification of the PSA was necessary because “the procedure for objections as to the necessity and reasonableness of the medical treatment is not specifically enumerated.” The magistrate agreed with the Former Wife’s interpretation that “if the Former Husband objects to any such expenses, he still must pay within the time frame, and thereafter, it is his burden to obtain an Order requiring the Former Wife to re-pay him” provided the Former Husband presented “valid, competent evidence [that] the medical expenditure is unnecessary or unreasonable.” The Former Husband asserts that the trial court effectively modified the PSA and partial final judgment of dissolution pursuant to its order approving and adopting the magistrate’s recommended order. We disagree. The Former Wife did not receive a new benefit but merely a more precisely enumerated method of recovering the Former Husband’s portion of the children’s medical expenses. See Roque v. Paskow, 812 So.2d 500, 503 (Fla. 4th DCA 2002) (holding that “[a] modification seeks to change the status quo and seeks a new benefit for one party” while “a clarification does not seek to change rights and obligations but to make a judgment more clear and precise”). Clarification of the PSA was appropriate because the PSA did not specifically enumerate the procedure for objections. See Thompson v. Plowmaker, 681 So.2d 727, 727-28 (Fla. 2d DCA 1996); Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010); Fussell v. Fussell, 778 So.2d 517, 518-19 (Fla. 1st DCA 2001). Accordingly, we affirm the trial court’s order as to the clarification of the PSA.

The Former Husband, a licensed attorney who practiced in Florida for approximately fourteen years before relocating to Arizona, interpreted the PSA to require him only to object within the fifteen-day window and nothing further. The Former Husband took full advantage of this interpretation, testifying at the hearing that despite his numerous objections to medical expenditures, he never once consulted with the children’s medical professionals or had other qualified professionals review the medical records. Instead, he disagreed with the nature of the procedure or the manner in which it was carried out or was otherwise simply unwilling to pay. Not surprisingly, the trial court found the Former Husband’s interpretation to be unreasonable. The trial court also expressed its displeasure with the Former Husband’s conduct in these proceedings, stressing that the Former Husband’s actions created frivolous and unnecessary litigation and delayed the payment of money to the Former Wife for the benefit of the children. We agree.

Despite the Former Husband’s reproachable conduct, however, we are constrained to hold that the finding of civil contempt is premature because the PSA is not sufficiently clear in its directive regarding objections to medical expenditures. See Thompson, 681 So.2d at 728 (“An order that is indefinite or ambiguous may not be enforced by contempt.” (citing Loury v. Loury, 431 So.2d 701 (Fla. 2d DCA 1983))). We must also reverse the orders to the extent that the Former Husband was required to reimburse the Former Wife $851.37 for the children’s medical expenses because this finding was not supported by competent, substantial evidence. It appears the magistrate relied on the medical records and receipts attached to the Former Wife’s motion as support of this finding. However, “[djocuments attached as exhibits to a motion are not evidence.” Waliagha v. Kaiser, 989 So.2d 660, 661 (Fla. 2d DCA 2008). These exhibits were not admitted into evidence at the hearing, and none of the testimony elicited at the hearing constituted competent, substantial evidence of the amount owed by the Former Husband to the Former Wife for his share of the children’s medical expenses. Though we agree with the Former Husband that the trial court erred in accepting the magistrate’s finding regarding the amount owed, we do not agree that the Former Wife carries the burden of establishing that the expenses are reasonable and necessary. As clarified by the trial court in adopting the magistrate’s recommended order, it is the Former Husband’s burden to demonstrate by competent, substantial evidence that the medical expenses are unreasonable and unnecessary.

Accordingly, we reverse the trial court’s orders to the extent that the Former Husband was found to be in civil contempt. Though premature at this time, if the Former Husband fails to comply with the court’s orders going forward his conduct may support a future contempt proceeding. We also reverse as to the amount the Former Husband Was ordered to pay the Former Wife for his share of the children’s medical expenses and remand for further proceedings.

Affirmed in part; reversed in part; remanded.

SILBERMAN and WALLACE, JJ., Concur.


author: MARSTILLER, J.

text:
    Lawrence William PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3982.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.
    Rehearing Denied Jan. 8, 2015.

      Michael Ufferman of the Michael Uffer-man Law Firm, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

A jury convicted Lawrence William Patterson of two counts of first-degree arson (a dwelling); second-degree arson (a vehicle); arson resulting in bodily injury to a firefighter; two counts of insurance fraud; burning a dwelling with intent to defraud; and burning a vehicle with intent to defraud. He seeks reversal of all convictions, arguing the trial court should have dismissed all the charges, or at least should have excluded the State’s expert ■witnesses’ testimony about the vehicle — a truck — allegedly used to start the fires, because the State allowed the truck to be destroyed before his expert could examine it. He also argues that several of the convictions and sentences violate double jeopardy principles.

On the latter argument, we find no double jeopardy violation, for the convictions are either based on separate, distinct criminal acts or, if not so based, authorized by clear legislative intent. See § 775.021(4), Fla. Stat. (2009); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Williams v. State, 90 So.3d 931, 933 (Fla. 1st DCA 2012). We affirm without further discussion.

As to the first argument, we also affirm, and discuss our reasoning because of the unusual evidentiary issue involved. The arsons for which Patterson was tried and convicted completely destroyed his house and truck (which was parked in the garage at the time). It was alleged that Patterson used the truck to start one of the two arson fires in the house. After State Fire Marshal and insurance company investigators completed their work, including inspecting the truck, and after the auto insurer paid Patterson the proceeds of his insurance policy, the insurer took custody of the truck and had it destroyed. This occurred five months before Patterson was arrested and charged. With the vehicle itself unavailable, Patterson’s fire investigation expert reviewed approximately 300 photographs of the burned truck and garage area. (He also personally inspected the dwelling.)

Before trial, Patterson moved the trial court to dismiss all the charges, or alternatively, to exclude any testimony from State expert witnesses opining, based on their physical examination of the truck, on whether the truck fire was intentionally started. He argued the State had intentionally destroyed the truck, making it unavailable to his expert and, as a consequence, violated his constitutional right to due process. The trial court denied the requested relief, allowing prosecution experts Stephen Callahan, Mike Miller and Bob Hallman to describe for the jury how they each examined the truck, and to give the jury their opinions on how the truck fire started.

Patterson argues on appeal the trial court should have dismissed the charges against him because the destroyed truck was of critical evidentiary value. He argues that because the State’s theory of guilt hinged on whether he intentionally set the truck ablaze — a fire that, in turn, set his house on fire — the State was essentially duty-bound to preserve this key piece of evidence. Patterson cites Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975), in which this court found the State violated the defendants’ right to due process when it unintentionally destroyed the recording of an undercover drug transaction from which the cocaine delivery and possession charges arose. We reversed the convictions and ordered the charges dismissed. 317 So.2d at 144. Farrell is inapposite, however, for the destruction of the recording occurred after the defendants timely demanded discovery. Id. at 143. Furthermore, the State had stipulated that the destroyed tape contained material evidence that would have been favorable to the defendants and could have been used to support their defense. Based on these undisputed facts, we concluded that the defendants were denied due process. Id.; see Brady v. Maryland, 373 U.S. 83, 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[Sjuppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of bad faith of the prosecution.”).

Farrell is a “Brady violation” case. Patterson’s case is not. Not only was there no failure to disclose by the State, the exculpatory value of Patterson’s destroyed truck is not apparent. Furthermore, Patterson has not shown—and the record does not reflect—that the- pre-ar-rest destruction of the truck was so prejudicial as to demand dismissal of the charges against him. “The test for prejudice or materiality under Brady is whether, had the evidence been disclosed [or produced], there is a reasonable probability of a different result, expressed as a probability sufficient to undermine confidence in the outcome of the proceedings.” Guzman v. State, 868 So.2d 498, 508 (Fla.2003) (citing Cardona v. State, 826 So.2d 968, 973 (Fla.2002)).

We consider Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the pertinent authoritative decision. There, the Supreme Court explained:

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant_[UJnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

488 U.S. at 57-8, 109 S.Ct. 333 (emphasis added). “Under Youngblood, bad faith exists only when police intentionally destroy evidence they believe would exonerate a defendant.” Guzman v. State, 868 So.2d 498, 509 (Fla.2003).

There simply is no evidence in this record establishing that the State acted in bad faith. Rather, the evidence shows that, as a matter of standard procedure, the State Fire Marshal—the state actor here—does not involve itself in preserving physical evidence other than samples it collects from a fire scene and does not impound vehicles. It defers to law enforcement to take such actions. As it happened, in this case, the auto insurance company took possession of the ruined truck after paying out the policy proceeds and had it destroyed long before Patterson was arrested and charged. Moreover, the State Fire Marshal investigator took some 300 pictures of the truck and garage—all of which were made available to Patterson’s expert. In our view, this undermines any charge of intentional destruction of evidence. Absent a showing of bad faith by the State, the trial court did not err in refusing to dismiss the charges against Patterson.

Even if dismissal was not warranted, Patterson argues alternatively, the trial court should have excluded the testimony of the State’s experts because the truck’s unavailability rendered his trial fundamentally unfair. He relies on Lancaster v. State, 457 So.2d 506 (Fla. 4th DCA 1984), which involves facts somewhat similar to, but decidedly not on all fours with, the instant case. Lancaster involved a truck fire, a defendant charged with arson, and the pre-arrest release of the damaged truck to be salvaged. And there, the similarity to Patterson’s case ends.

In Lancaster, the Sheriffs Department took possession of the burned vehicle from the start and, doubting the defendant’s explanation for how the fire began, ordered a physical examination of the vehicle by its own fire investigators. 457 So.2d at 506. When the truck’s owner (not the defendant) asked that it be returned to him, two officers — one of whom was the lead fire investigator — released the truck, thinking it was alright to do so because their investigation was complete and the truck no longer had evidentiary value to the State. Id. The day after returning, the truck to its owner, a warrant was issued for the defendant’s arrest. Id. By the time of trial, the truck owner had salvaged the truck, altering its condition. Id. Both officers acknowledged the truck could have been held until trial. Id.

Unlike the instant case, the state actor in Lancaster was not the Fire Marshal, but was the entity conducting the criminal investigation into the truck fire with an eye toward possible arrest, which arguably, though not necessarily, implied a responsibility to hold onto the evidence under the circumstances. The more important' difference between Patterson’s case and Lancaster is that the sheriffs fire investigators in Lancaster appear to have neither photographed the burned truck, nor preserved any samples taken from it. Consequently, the defendant had no basis on which to challenge their findings and conclusions. And, that is the circumstance that led the Fourth District to reverse the defendant’s conviction, order a new trial, and direct the trial court on retrial to prohibit the investigators from testifying. Id. at 507. The appellate court reasoned that “‘[i]t would be fundamentally unfair ... to allow the state to negligently dispose of critical evidence and then offer an expert witness whose testimony cannot be refuted by the Defendant.’ Id. (quoting State v. Ritter, 448 So.2d 512, 514 (Fla. 5th DCA 1984)) (emphasis added).

Here, Patterson’s expert, Cam Cope, was able to use hundreds of photographs of the burned truck and surrounding garage area to formulate an opinion as to the cause of the fire, refuting the testimony of the two State experts — Callahan and Hallman — who physically inspected the truck and opined that the fire was intentionally set. In fact, much of the testimony from both sides’ experts centered on their respective interpretations of observed burn patterns. Based on his study of the photographs, Cope testified that the fire started in the engine area of the truck and traveled into the passenger compartment, contrary to Callahan’s testimony. Cope said he saw no evidence in the pictures that any ignitable liquid was poured in the vehicle and set afire, and he explained how gasoline leaking from the truck’s tank during the fire would account for its presence in the sample Callahan took from the truck. Although he could not specify the exact source of the fire because he was unable to physically examine the truck, Cope opined unequivocally: “It’s [the fire] electrical in nature. All of the burn patterns would certainly tell me that it’s electrical[.]” “I didn’t see any evidence with regards to arson being a factor in this particular case.”

Because the photographic depictions of the burned truck and garage area allowed Patterson to refute the testimony of the State’s experts, we conclude the truck’s physical unavailability did not render Patterson’s trial fundamentally unfair. Accordingly, we affirm the convictions. Cf. Lancaster; Stipp v. State, 871 So.2d 712 (Fla. 4th DCA 1979) (reversing defendant’s conviction for cocaine possession where state lab unnecessarily destroyed entire drug sample during testing, and thus, presented irrefutable expert testimony against defendant). We note that the State did not argue to the jury that its experts’ opinions were more credible than Cope’s because they physically inspected the truck. Had the State done otherwise, we may have concluded differently.

AFFIRMED.

BENTON and WETHERELL, JJ., concur.


text:
    Dora S. DAOUD, Appellant, v. Khader DAOUD, Appellee.
    No. 1D14-1487.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.
    Rehearing Denied Jan. 6, 2015.
    Jeremiah J. Talbott, Pensacola, for Appellant.
    Tonya C. Petermann, Fort Walton Beach, for Appellee.
   PER CURIAM.

Dora S. Daoud, the former wife, raises four issues in this appeal of a contempt order resulting from her failure to comply with the final judgment dissolving her marriage to Khader Daoud, the former husband. We find merit in her challenge of the trial court’s modification of property rights previously adjudicated in the dissolution judgment, and reverse and remand on that issue. We affirm without comment the balance of the appealed order.

Absent appropriate pleadings by the former husband, a trial court lacks jurisdiction to alter or modify the property rights awarded to the former wife in the dissolution judgment. Work v. Provine, 632 So.2d 11,19, 1121 (Fla. 1st DCA 1994) (“Generally speaking, in the absence of a specific reservation of jurisdiction to make a later adjudication of property rights, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution.”). Further, the general reservation of jurisdiction for the enforcement of its dissolution judgment does not empower a trial court to address or redistribute vested property between the parties. Id.; Fort v. Fort, 951 So.2d 1020, 1022 (Fla. 1st DCA 2007). Based on our review of the record, the former husband failed to properly plead for modification of the real property distribution contained in the dissolution judgment, and the trial court failed to specifically reserve jurisdiction to alter the prior distribution of property.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


author: MORRIS, Judge.

text:
    Samuel ORTIZ-LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1126.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2014.
    Howard L. Dimmig, II, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Samuel Ortiz-Lopez appeals his judgment and sentence for first-degree murder. We conclude that the trial court’s denial of his motion for continuance did not result in a palpable abuse of discretion. See Chavez v. State, 48 So.3d 1022, 1024 (Fla. 2d DCA 2010) (citing M.D.B. v. State, 952 So.2d 590 (Fla. 2d DCA 2007)). Likewise, we conclude that there was no abuse of discretion in the admission of testimony concerning Ortiz-Lopez’s prior possession of a firearm. Cf. Agatheas v. State, 77 So.3d 1232 (Fla.2011).

Affirmed.

CASANUEVA and KHOUZAM, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Brian Michael ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0179.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.

      Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Brian Michael Robinson challenges the denial of his motion to dismiss, arguing that the statute of limitations prohibited the State from proceeding against him. Because the running of the statute of limitations was tolled under section 775.15(5), Florida Statutes (2008), while Robinson was continuously absent from the state, his prosecution was not barred by the statute of limitations. Accordingly, we affirm.

Under section 775.15(2)(b), Florida Statutes (2008), prosecution for second and third degree felonies must be commenced within three years. This limitations period may be tolled, however, for the time during which the defendant is continuously absent from the state. § 775.15(5), Fla. Stat. (2008); Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004). Statutes of limitations on criminal offenses must be liberally construed in favor of the accused. Sutton v. State, 784 So.2d 1239, 1241 (Fla. 2d DCA 2001). Once the jurisdiction of the court is challenged by the raising of the statute of limitations, the State has the burden to establish that the offense is not barred by the statute. Fleming v. State, 524 So.2d 1146,1146-47 (Fla. 1st DCA 1988).

Section 775.15(4)(b) provides that process must be executed without unreasonable delay and:

In determining what is reasonable, inability to locate "the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

Section 775.15(5) provides, in pertinent part, that “[t]he period of limitation does not run during any time when the defendant is continuously absent from the state.... ” Here, the State established that Robinson was continuously absent from the state between May 2008 and May 2012.

Robinson asserts that the State may not avail itself of this tolling provision, however, because it failed to demonstrate that it made a diligent search for Robinson or that his absence from the state hindered prosecution. We do not agree. This court has held that, where the defendant is continuously absent from the state, the express language of section 775.15(5) does not require that the State undertake a diligent search or that the defendant’s absence hindered the prosecution for the statute of limitations to be tolled. Pearson, 867 So.2d at 519. As we noted in Pearson, id., our reading of section 775.15(5) conflicts with the second district’s interpretation of that statute in Netherly v. State, 804 So.2d 433, 437 (Fla. 2d DCA 2001), and State v. Perez, 72 So.3d 306, 308 (Fla. 2d DCA 2011). Accordingly, since Robinson’s continuous absence from the state resulted in the tolling of the statute of limitations, prosecution in this matter was timely commenced.

AFFIRMED.

OSTERHAUS, J., and FENSOM, JAMES B., Associate Judge, concur.


text:
    Jason LAUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1039.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.
    Rehearing Denied Jan. 6, 2015.
    Jason Laughlin, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Eric Gonzalez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jason Laughlin appeals the denial of his petition for a name change. Because the circuit court offered two independent grounds for the denial and Laughlin challenges only one, he cannot meet his burden to show reversible error. We are constrained to affirm regardless of whether the issue he raises has merit. See STS Telecom, LLC v. Jacobsen, 901 So.2d 980, 980-81 (Fla. 4th DCA 2005).

AFFIRMED.

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


author: WARNER, J. CONNER, J., KLINGENSMITH, J.,

text:
    Lori A. FORD, Appellant, v. Michael Withers FORD, Appellee.
    No. 4D13-1369.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.
    Rehearing Denied Jan. 23, 2015.

      Stacey D. Mullins and Holly D. Sehutt-ler of Schuttler & Greenberg, Boca Raton, for appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Holly Gayle Gershon of Holly Gayle Ger-
    shon, Attorney At Law, Boca Raton, for appellee.
   WARNER, J.

In this marital post-dissolution case, the former wife appeals an order finding her in contempt and imposing sanctions for her failure to comply with the parties’ parenting plan. The trial court ordered one of the parties’ children to attend a wilderness program; held the former wife in contempt for violating the parenting plan; ordered the former wife to attend individual therapy; and ordered the former wife to pay for the cost of reunification therapy as well as a social investigation of the family. Because the child turned eighteen during the pendency of this appeal, the order has become moot as to the provisions directing him to attend a wilderness .program. We affirm the court’s finding of contempt and the requirement of payment of costs. We reverse, however, the provisions of the order requiring the former wife to attend therapy, because it was imprecise and vague as to its duration, relying on a change in attitude of the children rather than a change in the former wife’s psychological condition.

The parties obtained a dissolution of their marriage in 2011. The final judgment provided for shared parental responsibility for their three minor children, including a parenting plan and timesharing schedule. Several months later, the former husband filed a motion for contempt alleging that the former wife was intentionally frustrating his ability to have a positive relationship with the children.

As grounds, he alleged that she discussed details of the divorce litigation with them; made derogatory statements about him; refused to take action to deter disrespect of the former husband by his children; and interfered multiple times with the former husband’s visitation by failing to deliver the children to his house or allowing the children to “opt out” of visitation. He requested that the court find the former wife in contempt; order makeup timesharing; order the former wife to attend counselling to avoid continued alienation of the children; and order the former wife to pay for the children’s therapy.

At the former husband’s request, and before hearing the contempt motion, the court appointed a reunification therapist to treat the family and a psychologist to conduct a social investigation of the family. Other hearings and motions were filed by the parties, many directed at the middle son, who adamantly refused to visit with his father. The former husband filed a supplemental motion for contempt alleging that the former wife continued to actively and passively violate the parenting plan and shared parental responsibility provisions in the final judgment. By this time, the parties’ eldest child had turned eighteen.

The court held a full hearing on the contempt motions, at which the court-appointed psychologist testified, as well as the parties. At the conclusion, the trial court entered an order making findings regarding specific dates on which the former wife interfered with the former husband’s visitation, as well as specific instances where the former wife contributed to the hostile relationship between the children and the former husband. The court found that the former wife was angry at the former husband and had empowered the sons to reject their relationship with their father. It held her in contempt for violations of the final judgment.

The court ordered the middle son to attend a special wilderness program during the summer. It also ordered individual therapy for the former wife so that she could learn not to interfere with the relationship between the children and their father, as well as how to share parental responsibility for the children. To that end, the court ordered her to commence individual therapy with a therapist of her choosing, and to “continue her therapy until she is able to convince [the two minor children] that it is her desire that they see their father and love their father and to create a loving, caring feeling toward their father in their minds.”

The court ordered the former wife to pay the full cost of the court-appointed psychologist who had investigated the family. It also ordered her to pay half the cost of the court-appointed reunification therapist. The court declined to award the former husband monetary compensation for lost visitation under section 61.13(4)(c), Florida Statutes (2012), noting that the former husband had not requested it in his prior pleadings and that the former wife therefore was not on notice of this possibility. It also ordered the former wife to pay the former husband’s attorney’s fees. The former wife appeals this ruling.

In her brief, the former wife raises several issues regarding the provision requiring the middle son’s attendance at the wilderness program. The son turned eighteen during the pendency of this appeal, and the parties agree that the family court has no further jurisdiction over the son at this time. We therefore deem these issues moot.

Next, the former wife complains that the court erred in holding her in contempt for violating the parenting plan, because it failed to identify specific provisions of the plan that she had violated and instead relied on the aspirational goal for her to foster a good relationship between the former husband and the children. A contempt order is reviewed for an abuse of discretion or fundamental error. Wilcox on v. Moller, 132 So.3d 281, 286 (Fla. 4th DCA 2014). Yet, where the trial court bases contempt upon noncompliance with something an order does not say, “the standard of review is legal error, not abuse of discretion.” Harris v. Hampton, 70 So.3d 747, 749 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005)).

We have examined the court’s contempt order and conclude that it recites multiple instances where the former wife violated specific provisions of the parenting plan. She actively participated in her two sons’ refusal to stay at the former husband’s home for his visitation, and for a period of several months she did not bring the children to the former husband’s home for visitation, as required by the parenting plan. In other specific instances, she scheduled social events for the children on the former husband’s time-sharing evenings, again in violation of a specific provision of the parenting plan.

Although the court also found that the former wife violated the plan’s aspirational goal to foster a good relationship with each parent, which itself may not have been precise enough to hold her in contempt, there was competent substantial evidence of specific violations of the parenting plan to support the finding of contempt. The requirements in the parenting plan in this case were far more specific than those in the temporary order in Marcus v. Marcus, 902 So.2d 259, 262 (Fla. 4th DCA 2005), on which the former wife, relies. The plan included sufficiently precise commands such that the former wife can be held in contempt for violating them.

The former wife also maintains that the trial court erred by holding her in contempt because it did not find that she had the ability to comply with the parenting plan. She argues the children themselves refused to stay with their father for visitation. “[I]n order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Harris, 70 So.3d at 749 (quoting Dep’t of Children & Families v. R.H., 819 So.2d 858, 862 (Fla. 5th DCA 2002)); see also Wilcoxon, 132 So.3d at 287 (“[A] party cannot be held in contempt for non-compliance with a court order if the party did not have the ability to comply with the court order.”).

The court, however, specifically found that she did have the ability to get the children to comply with visitation, because she did so upon occasion. And there was evidence in the record to support the finding that her failure to comply with visitation was willful. There was evidence that she encouraged the children not to spend time with their father, as provided to him in the parenting plan: the court-appointed social investigator opined that she had empowered the children to reject their relationship with their father. Moreover, even if the former wife could not be held in contempt for every time her middle son refused to stay with his father, she clearly had the ability to schedule social events on days other than those on which the former husband had visitation with the children. Thus, we conclude that there was competent substantial evidence to show that the former wife did have the ability to comply with the parenting order but affirmatively refused to do so.

As part of the remedy for her violations of the parenting plan, the court ordered the former wife to obtain psychological counseling and continue with it “until she is able to convince [the two minor children] that it is her desire that they see their father and love their father and to create a loving, caring feeling toward their father in their minds.” The former husband suggests that this issue is moot, as a successor judge later vacated that portion of the order. The vacation of that order was entered while this appeal was ■ pending. Although this court relinquished jurisdiction for the trial court to rule on various issues, it does not appear that any written order was entered. Therefore, we address ■the issue.

The foregoing provision requiring therapy until the former wife can convince her children that she desires them to have a loving relationship with their father is not a purge provision. The former wife has not been threatened with incarceration if she does not go through with therapy. The trial court could impose a sanction under section 61.13(4)(e)7., Florida Statutes (2012), which permits the trial court to “impose any other reasonable sanction as a result of noncompliance” with the time-sharing portion of the parenting plan. We are hard-pressed, however, to classify therapy as a “sanction.” Instead, the court was hoping to remedy the dysfunctional relationships between the father and his children, which the court found were due largely to the former wife’s animosity towards the former husband. The statute does give the court the authority to “make specific orders regarding the parenting plan and time-sharing schedule as such orders relate to the circumstances of the parties and the nature of the case and are equitable....” § 61.13(5), Fla. Stat. (2012). This provision, however, has never been interpreted to give authority to order the parents into therapy.

Nevertheless, the former wife does not challenge the authority of the trial court to order counseling. She claims instead that the counseling provision conditions the duration of therapy on “vague, ambiguous and potentially insurmountable goals.” We agree that the provision is vague and is much too broad to be enforced. See Lanza v. Lanza, 804 So.2d 408, 409-10 (Fla. 4th DCA 2001). Therefore, we reverse the order to the extent that it requires the former wife to submit to therapy under the conditions set forth in the order.

Additionally, the former wife contests the award to the former husband of the costs of the experts, as well as his attorney’s fees.. She argues the former husband has a clearly superior ability to pay all of the litigation costs and fees. We conclude that the court had the authority to award the expert and attorney’s fees in accordance with the statute.

Section 61.13(4)(c), Florida Statutes (2012), authorizes the trial court to award costs and attorney’s fees incurred where a parent has not provided time-sharing to the other parent, as well as order any other reasonable sanction as a result of noncompliance:

(c) When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:
2. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the nonoffending parent to enforce the time-sharing schedule.
7. May impose any other reasonable sanction as a result of noncompliance.

Together these provisions authorize the trial court to order the former wife to pay both the attorney’s fees and expert’s fees incurred in enforcing the parenting plan.

Robinson-Wilson v. Wilson, 932 So.2d 330 (Fla. 4th DCA 2006), explains why the “need and ability to pay” test of section 61.16(1) does not apply here:

This statutory power [under section 61.13(4) ] to award attorney’s fees is outside of section 61.16(1), Florida Statutes (2004), which requires a consideration of “the financial resources of both parties” as part of the decision to award fees and costs. The power to award fees is triggered by the wrongful conduct of the custodial parent, without consideration of the noncustodial parent’s financial resources.

Id. at 331. As the trial court in this case was also enforcing the parenting plan provisions under section 61.13(4), the analysis of Robinsonr-Wilson applies. The court did not err in its award of attorney’s fees.

Finally, the former wife claims that the court’s order violates Perlow v. Berg-Per-low, 875 So.2d 383 (Fla.2004). She maintains that the court simply adopted the former husband’s proposed order. We find this contention to be meritless. Although the court did use substantial portions of the proposed order, it clearly reflects the court’s considered judgment, as the court did not include a rather substantial fine for lost visitation, which was part of the former husband’s proposed order but was removed by the court.

In accordance with the foregoing, we reverse that portion of the order requiring the former wife to obtain counseling. We affirm all other portions of the order except those which we conclude are moot.

Affirmed in part; reversed in part.

CONNER, J., concurs specially with opinion.

KLINGENSMITH, J., concurs specially with opinion.

CONNER, J.,

concurring specially.

I concur in the result, but disagree that the trial court did not have authority to order counseling for the former wife under the facts of this case. While I agree that it would be best for the legislature to more clearly identify the authority of the court to order counseling for a parent when it appears that, without therapy or counseling, it is unlikely the parent will be able to successfully co-parent because of animosity toward the other parent or other emotional problems, I contend there is existing statutory authority for such action by the trial court. Admittedly, the authority is implicit, rather than explicit. Cf. Gulf Coast Electric Coop., Inc. v. Johnson, 727 So.2d 259, 263 (Fla.1999) (recognizing the Public Service Commission, as a matter of law, had the implicit authority to establish boundaries of service for utilities derived from two separate statutory sections); Witmer v. Dep’t of Bus. & Prof'l Regulation, 662 So.2d 1299, 1301 (Fla. 4th DCA 1995) (recognizing DBPR had “implied authority” to make rules to the extent necessary to implement unrepealed statutes).

I point to three different statutory provisions for such authority: sections 61.001, and 61.13(2) and (3), Florida Statutes (2012).

In section 61.001, the legislature clearly stated:

(1) This chapter shall be liberally construed and applied.
(2) Its purposes are:
(a) To preserve the integrity of marriage and to safeguard meaningful family relationships;
(b) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.

(emphasis added). Additionally, in section 61.13(2)(a), the legislature clearly gave the court the power to “approve, grant, or modify a parenting plan.” § 61.13(2)(a), Fla. Stat. (2012). Although section 61.13(2)(b) lists the items which “at a minimum” must be addressed, it does not appear the legislature intended that list to be exhaustive, which means, in approving the parenting plan, the court can consider additional requirements.

More importantly, in section 61.13(2)(c), the legislature said “[t]he court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child....” § 61.13(2)(e), Fla. Stat. (2012) (emphasis added). The “best interest of the child” theme is repeated in section 61.13(3):

(3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan ... which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration ... Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family,' including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs and desires of the parent.
(f) The mental and physical health of the parents.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

§ 61.13(3), Fla. Stat. (2012) (emphasis added).

In addition to sections 61.001, and 61.13(2), (3), I also submit section 61.122, Florida Statutes (2012), lends support to the notion that the legislature intended for courts to have authority to order parents to attend therapy or counseling when necessary to protect the best interest of children. Section 61.122 governs the liability of psychologists who develop a parenting plan recommendation in dissolution of marriage proceeding. It appears implicit that the legislature envisioned psychologists making recommendations to the court to assist the court in developing parenting plans. It seems equally implicit that psychologists may recommend the need for therapy or counseling to make the parenting plan successful.

Although one would not initially think that participating in mental health therapy or counseling is part of parenting, clearly there are limited instances in which one cannot effectively parent without therapy or counseling. Parenting inherently invokes and requires the ability to put a child’s needs ahead of the parent, including the child’s need to have some emotional bond with both halves of the two biological sources of the child’s being. Thus, there can be very limited instances in which counseling or therapy is a necessary component of parenting.

In all but rare instances, it is not necessary, though perhaps tempting, to order one or both parents to attend counseling when the emotions of animosity flair up during a dissolution proceeding. Thus, it would be rare for a judge to order parents to attend therapy or counseling in constructing an initial parenting plan.' However, when a plan has been approved by the court, and it becomes clear to the court from the evidence that no plan is going to work without one or both parents attending therapy or counseling, I contend the current language in Chapter 61 gives the judge the implicit authority to order therapy or counseling, where it is clearly in the best interest of child in order “to mitigate the potential harm to ... the[ ] children caused by the process of legal dissolution of marriage,” and “to safeguard meaningful family relationships.” § 61.001(2), Fla. Stat. (2012).

Finally, to the extent there is life left in the principle that courts of equity have inherent authority to protect children, I would invoke that principle in this case, based on the particular facts, and affirm the trial court’s authority to order the former wife to attend therapy. “The public policy of this state to protect the interests of children during dissolution' proceedings is so firmly established in our jurisprudence as to require no citation of authority.” Franklin & Criscuolo/Lienor v. Etter, 924 So.2d 947, 949 (Fla. 3d DCA 2006). As early as 1933, our supreme court, in Duke v. Duke, 109 Fla. 325, 147 So. 588, 589 (1933), recognized the longstanding principle that' courts of equity have inherent power to protect infants and said:

One of the most distinctive duties of the court of chancery in England was the protection of the interests of infants. It was said by Blackstone that chancery “is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom.” See, also, Pom-eroy’s Eq. Juris. (4th Ed.) §§ 1304, 1307.

(quoting from the opinion of a commissioner in Fisher v. Guidy, 106 Fla. 94, 142 So. 818 (1932)); accord § 61.011, Fla. Stat. (2012) (proceedings under Chapter 61 are in chancery); Simms v. Dep’t. of Health & Rehab. Servs., 641 So.2d 957, 961 (Fla. 3d DCA 1994); Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253, 254 (1947); K.A.S. v. R.E.T., 914 So.2d 1056, 1061 n. 3 (Fla. 2d DCA 2005); Cooper v. Cooper, 194 So.2d 278, 281 (Fla. 2d DCA 1967). The particular facts of this case demonstrate the very limited situation in which inherent authority of the court to protect children justifies the use of therapy or counseling as a parenting tool.

KLINGENSMITH, J.,

concurring specially.

I write separately to address that portion of the trial court’s order requiring the former wife to obtain psychological counseling and ordering the child to attend wilderness camp. There is a misconception among some family court judges that a court overseeing a dissolution of marriage has powers similar to those of the court in a chapter 39 case, that being the power (or obligation) to emotionally “reunite” a child with a parent. Here, the court’s order provided that the former wife obtain counseling “until she is able to convince [the two minor children] that it is her desire that they see their father and love their father and to create a loving, caring feeling toward their father in their minds.” As the majority opinion points out, this language improperly puts the length of therapy in the control of the children, subject to ending whenever the children become “convinced.” More importantly, regardless of how desirable or beneficial the court may believe such counseling might be in any given case, a court in a chapter 61 case has no statutory authority to order therapy for any party with the goal of “rebuilding” a relationship between a parent and a child.

Unlike a judge in a chapter 39 proceeding, a judge presiding over a chapter 61 ease has no statutory authority to order parties into therapy to correct their behavior. And, similar to the court’s order here requiring the child to attend camp, a judge has no authority to order action by the child designed to remedy behavior that may be causing stress to the parent. For instance, there is no provision in chapter 61 authorizing the trial court to order an addicted parent into drug counseling, which a dependency judge can do under section 39.507(10), Florida Statutes, just as there is no provision in chapter 61 to order a parent into any other sort of therapy or counseling to address other behaviors. As the majority opinion correctly points out, section 61.13(5), Florida Statutes, has never been interpreted by any appellate court to provide the legal basis for ordering a parent or child into therapy, nor does any other provision of chapter 61 give such authority.

Chapter 61 also contains no language similar to sections 39.507(10) or 39.6011, Florida Statutes, authorizing the trial judge to fashion a reunification plan for parents and their children, or to order the parents into long-term, intensive therapy or counseling to effect a successful parenting or timesharing plan. Rather, section 61.13 directs the judge to take evidence of the facts concerning the separated parents and to fashion a parenting plan and time-sharing schedule that is in the child’s best interest. §§ 61.13(2)(c)2.a.; 61.13(3), Fla. Stat. (2012).

The Legislature intended that chapter 61 proceedings be quite different from chapter 39 cases. While reunification of the family is a goal of a chapter 39 dependency action, the family in a chapter 61 case is dividing due to irreconcilable differences. Reunification is not a goal. Although it is the public policy of the state, as provided in section 61.13(2)(c)l., “that each minor child- has frequent and continuing contact with both parents after the parents separate,” that public policy is qualified by the requirement under section 61.13(3) that the court must make the child’s best interests the primary consideration only in fashioning a parenting plan and a timesharing schedule, not in creating rehabilitative schemes designed to address issues for any particular family member. §§ 61.13(2)(c)l.; 61.13(3).

Remedying chronic relátionship difficulties between a parent and child is not a function of a chapter 61 proceeding. While it may be tempting for a judge to enter orders designed to unravel the tangled skeins of a family’s history and attempt to restore failed relationships, this is not the court’s role. It is the court’s obligation in a chapter 61 proceeding only to take the parties as they are, and to fashion an appropriate parenting plan and time-sharing schedule from that information. It is beyond dispute that chapter 61 does not expressly provide the authority to issue orders requiring therapy. Deriving such authority through penumbras formed by emanations of chapter 61 would allow limitless expansion of judicial power in this area so long as a court deems it to be in the “best interests” of a child. It is not enough to say, as my colleague Judge Conner suggests, that this power exists but should only be used sparingly and in rare circumstances. To allow, let alone to require anything more would open a Pandora’s Box, giving unfettered and unrestrained discretion to trial judges to fashion all sorts of “therapeutic” orders to fit a given case, limited only by the court’s imagination.

In sum, under chapter 61, the court has no authority to fashion an order for a reunification plan and no authority to order either a parent or any child into therapy or counseling. Indeed, I believe there is a serious question about whether the court has any authority to order the children of a failed marriage to do anything whatsoever. These children are not parties to the dissolution proceeding, and it is dubious whether the court can compel their compliance via an enforceable order. The only real control the court has over these children is indirect, such as the ability to order conditions under which their parents shall interact with them. Unless and until the Legislature acts to provide such specific authority, courts cannot impose remedies such as orders for parental therapy out of whole cloth, however tempting it might be.

Therefore, despite having the best of intentions, I believe the court exceeded the scope of its statutory authority by ordering the former wife to obtain and pay for reunification therapy, and by ordering one of the children to attend a wilderness program.

      . The conclusion from the evidence that therapy or counseling is needed does not require expert testimony.


text:
    William Stewart STEELE, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-2179.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    William Steele, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Tammy S. Metcalf, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot. See Carlin v. State, 939 So.2d 245 (Fla. 1st DCA 2006).

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Roy S. WHITED, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D13-4673.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.

      Roy S. Whited, pro se, Appellant.
    Sarah J. Rumph, General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
   ORDER ON MOTION TO ENFORCE MANDATE

PER CURIAM.

Whited moves to enforce this court’s mandate, which instructed the lower court to remove a lien from his prisoner trust account. He argues that on remand, the circuit court again imposed a lien on his prisoner trust account. We grant the motion for the reasons discussed below.

Background

Whited filed a petition for writ of mandamus in the circuit court challenging the calculation of his Presumptive Parole Release Date. The circuit court found him to be indigent, but ordered the Department of Corrections to place a lien on his prisoner trust account for court costs and fees, citing section 57.085(5), Florida Statutes. Whited filed a motion challenging the imposition of the lien, arguing this action was a collateral criminal proceeding for which a lien may not be imposed. The court did not rule on the motion, but denied in part and dismissed in part the mandamus petition. Whited filed a notice of appeal with the circuit court. The court entered another order to place a lien on appellant’s account for appellate costs and fees.

On appeal, Whited argued the court erred in imposing a lien on his inmate trust account because his challenge to his Presumptive Parole Release Date was a collateral criminal proceeding, for which subsection 57.085(10) precludes a lien. He relied on Florida Parole Commission v. Spaziano, in which the supreme court held:

[I]nmate challenges, regardless of their nature, to the Florida Parole Commission’s determination of an inmate’s presumptive parole release date constitute collateral criminal proceedings for the purposes of section 57.085(10). Accordingly, when such an action is brought, section 57.085(10) precludes imposition of a lien on the inmate’s trust account to recover applicable filing fees.

48 So.3d 714, 724 (Fla.2010). This court reversed the circuit court, holding:

We find the circuit court erred in imposing liens on appellant’s inmate trust account for court costs and fees for filing his petition for writ of mandamus and subsequent appeal. See Fla. Parole Comm’n. v. Spaziano, 48 So.3d 714, 724 (Fla.2010); and § 57.085(10), Fla. Stat. Thus, we reverse the circuit court’s orders imposing the liens, and we remand with instructions that the trial court direct that appellant be reimbursed for any funds that were removed from his account. On all other issues, we affirm.

Whited v. Florida Comm’n on Offender Review, 145 So.3d 951, 951 (Fla. 1st DCA 2014).

Order on Remand

■ On remand, the circuit court ordered that the lien on Whited’s inmate trust account be released and any funds that had been removed be reimbursed. The court also stated that because Whited’s challenge was a collateral criminal proceeding:

The Clerk of Court erroneously processed the petitioner’s indigency paperwork under Section 57.085, Florida Statutes, when it should have been processed under Section 57.082, Florida Statutes.
The court notes that, although collateral criminal proceedings are exempt from the lien requirements of Section 57.085, Florida Statutes, such cases are “not free from costs.” Schmidt v. Mc-Donough, 951 So.2d 797, 803 (Fla.2006). The Petitioner incurred this court’s filing fee by initiating these proceedings, and this order does not absolve him of his obligation to pay. Section 28.246(4), Florida Statutes, requires the Clerk of Court to enter into “a payment plan with an individual who the court determines is indigent for costs,” and that payment plan might result in a lien imposed by the Department of Corrections.
This order shall be forwarded to the Clerk of Court for appropriate action in accordance with it.

Analysis

Whited argues that section 28.246(4), Florida Statutes, has no bearing on this case, and the circuit court’s order attempts to circumvent this court’s mandate which clearly stated that appellant was exempt from filing fees. As discussed below, the trial court correctly held that appellant was still subject to a payment plan for court costs under section 57.082, and potentially a payment plan under section 28.246; however, the court erred in finding a lien could again be placed on the inmate trust account and that appellant incurred a filing fee.

The general indigency statute, section 57.081(1), Florida Statutes, states that “[a]ny indigent person, except a prisoner as defined in section 57.085 .... is not required to prepay costs” and “is not required to pay filing fees.” (Emphasis added). In order to pay costs for which prepayment was waived, section 57.082(6), Florida Statutes, states that indigent persons shall be entered into a payment plan as provided in section 28.246. However, “[fjiling fees waived from payment under s. 57.081 may not be included in the calculation related to a payment plan established under this section.” Id. In contrast the prisoner indigency statute, section 57.085, “defer[s]” rather than waives “the prepayment of costs and fees.” § 57.085(2), Fla. Stat. It requires inmates to make an initial partial payment if possible, and it requires that “the Department of Corrections or local detention facility shall place a lien on the inmate’s trust account for the full amount of the court costs and fees.” § 57.085(4)-(5), Fla. Stat. Except, subsection 57.085(10) states “[t]his section does not apply to a criminal proceeding or a collateral criminal proceeding.”

In Schmidt v. McDonough, 951 So.2d 797 (Fla.2006), on which the circuit court here relied, the supreme court considered which statutory provision applies when a prisoner brings a criminal or collateral criminal proceeding that is exempt from section 57.085. The supreme court began by noting that “[w]hile some prisoner filings, such as habeas petitions, generally may be filed free of filing fees and other court costs, many prisoner filings are subject to such costs.” Id. at 799. “Both the general indigency statute, section 57.081, and the prisoner indigency statute, section 57.085, apply only to those filings that are not free of costs.” Id. The court explained that “section 57.085 ... was intended to supplant the general indigency statute for most purposes where prisoners’ civil filings are concerned.” Id. at 800. However, if “ ‘(section 57.085) does not apply ... the general- indigency statute (section 57.081) does.’ ” Id. at 802 (quoting Schmidt v. Crusoe, 878 So.2d 361, 367 n. 7 (Fla.2003)). Thus, if a prisoner files a collateral criminal proceeding- that is exempt from section 57.085, the prisoner “ ‘must prove his inability to pay by filing an affidavit ... according to section 57.081.’” Id.

The Schmidt court acknowledged that section 57.081 states it applies to “ ‘[a}ny indigent person, except a prisoner.’ Id. (quoting § 57.081(1), Fla. Stat.). However, the court explained that “language in section 57.081 excepting prisoners’ filings applies only to those filings that are otherwise subject to the prepayment and lien requirements of section 57.085,” which is not the case where a prisoner files a criminal or collateral criminal proceeding. Id. Thus, the court concluded that “the filing of a mandamus petition,” which was filed in that case, “is not free of costs, and that although such petitions are exempt from the prepayment and lien requirements of the prisoner indigency statute, section 57.085, they continue to be subject to the certification requirements of the general indigency statute, section 57.081.” Id. at 803.

The Spaziano court similarly explained that prisoners who file collateral criminal proceedings are subject to the costs and fee provisions of section 57.081:

Prison inmates are not completely exempt from the payment of court costs and fees for certain legal actions in Florida. The general indigency statute, section 57.081, Florida Statutes (2009), provides a general waiver of prepayment of court costs and fees for persons who are determined to be indigent, but expressly does not apply to prisoners who file or intervene in civil proceedings. See § 57.081(1), Fla. Stat. (2009). Under section 57.085, known as the “Prisoner Indigency Statute,” prepayment of court costs is deferred rather than waived, meaning that an indigent prisoner, if he or she is able, must make an initial partial payment of court costs and fees. A lien is then placed on that inmate’s trust account for payment of the remaining costs and fees in monthly installments. See § 57.085(4)-(5), Fla. Stat. Importantly, the act expressly exempts criminal proceedings and collateral criminal proceedings from application of the payment and lien provisions of the statute. See § 57.085(10), Fla. Stat. (2009).

Spaziano, 48 So.3d at 717-18. As noted above, the Spaziano court concluded that a challenge to a presumptive parole release date was a collateral criminal proceeding, from which the Legislature has exempted the lien provision of section 57.085. Id. at 724.

Pursuant to Schmidt and Spaziano, the trial court here did not err in finding that appellant’s filing “should have been processed under Section 57.082,” which could result in a payment plan under section 28.246. Schmidt clearly held that if “ ‘(section 57.085) does not apply ... the general indigency statute (section 57.081) does.’ ” Schmidt, 951 So.2d at 802 (quoting Crusoe, 878 So.2d at 367 n. 7). Further, section 57.082(6) imposes a payment plan to recover the costs for which prepayment is waived under section 57.081.

However, the circuit court erred in concluding that the payment plan required by section 28.246 “might result in a lien imposed by the Department of Corrections.” The Schmidt court explained that a collateral criminal claim “is exempt from the prepayment and lien requirements of the prisoner indigency statute.” Schmidt, 951 So.2d at 803 (emphasis added). This court has specifically rejected the argument that a payment plan required by sections 57.081 and 28.246 could result in a lien on an inmate trust account. In Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006), this court explained that sections 57.081 and 28.246 “concern ... a ‘payment plan’ ” which “is to be distinguished from a lien, which is a qualified right or proprietary interest which may be exercised over the property of another.” Because “section 57.081, unlike section 57.085, does not contain statutory language authorizing imposition of a lien,” such a lien cannot be imposed. Id. See also Walton v. McDonough, 957 So.2d 69 (Fla. 1st DCA 2007) (“[T]his court has rejected the argument that a lien may be placed on a prisoner’s trust account by operation of the general indigency statute.”).

Moreover, the circuit court here erred in finding that appellant “incurred [the circuit] court’s filing fee by initiating these proceedings.” Section 57.081 waives the filing fee. See § 57.081(1), Fla. Stat. (“Any indigent person, .... is not required to prepay costs ... and is not required to pay filing fees....”). Section 57.082 specifies that “[fjiling fees waived from payment under s. 57.081 may not be included in the calculation related to a payment plan....” § 57.082(6), Fla. Stat. See also Ledger v. City of St. Petersburg, 135 So.3d 496, 498 (Fla. 2d DCA 2014) (“[U]nder section 57.081, an individual who is found to be indigent will not be required to pay the filing fee and such a fee may not be included in the calculation related to a payment plan.”). Thus, appellant’s filing fee was waived.

Based on the foregoing, it seems it is appropriate for this court to issue an order enforcing its mandate. This court’s mandate required the circuit court to remove the lien from appellant’s prisoner trust account because he was exempt from the lien provision of section 57.085. Whited, 145 So.3d 951. Although the lower court partially complied by ordering that the lien be removed and appellant be reimbursed, the court also ruled that a lien could again be imposed for costs and fees. That order was in contravention of this court’s mandate and was legally erroneous. Thus, we enter an order enforcing the mandate and striking that portion of the order allowing the imposition of a hen as well as that portion of the order holding the petitioner responsible for payment of a filing fee. See Formor v. State, 923 So.2d 563, 564 (Fla. 5th DCA 2006) (“An appellate court has inherent authority to enforce its own mandate.” (citing Brunner Enter., Inc. v. Dep’t of Revenue, 452 So.2d 550, 552 (Fla.1984))).

LEWIS, C.J., WOLF and WETHERELL, JJ., concur.

      . While the trial court's order does not directly impose a lien, we find that it is in contravention of our previously issued opinion that a lien may not be imposed for costs and fees associated with this type of proceeding. We, therefore, can review the order by means of a motion to enforce mandate. See Vega v. Me-

        Donough, 956 So.2d 1205, 1206 (Fla. 1st DCA 2007).

      . The court also held that if a prisoner filed a "mixed claim” containing both civil and collateral criminal claims, that petition would be subject to the lien and prepayment requirements of section 57.085. Schmidt, 951 So.2d at 803.


text:
    John Emmanuel OSEI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4847.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    John Emmanuel Osei, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Steven M. RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3861.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.
    Rehearing Denied Jan. 6, 2015.
    Nancy A. Daniels, Public Defender, and Zachary Lawton, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Steven M. Riley, appellant, raises three issues in this appeal of his judgment and sentence for robbery with a weapon. We agree with Riley that the trial court erred by imposing the costs of prosecution under section 938.27, Florida Statutes (2010) because the State neglected to request the same. See Jackson v. State, 137 So.3d 470, 472-73 (Fla. 4th DCA 2014) (reversing award of investigatory costs under § 938.27(1) where “no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred.”); Ogden v. State, 117 So.3d 479, 480 (Fla. 1st DCA 2013) (striking sheriffs and prosecutor’s investigative costs, which are discretionary, when not requested by the agencies).

We therefore REVERSE and REMAND with instructions to strike the costs of prosecution from the judgment and resentence accordingly. We AFFIRM the judgment and sentence in all other respects.

WOLF, VAN NORTWICK, and OSTERHAUS, JJ., concur.