Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT P.D.V-G., ) ) Appellant, ) ) v. ) Case No. 2D20-1178 ) B.A.V-G., ) ) Appellee. ) ) Opinion filed May 7, 2021. Appeal from the Circuit Court for Charlotte County; Mary Evans, Judge. Mira Staggers White of Mira Staggers White, Attorney at Law, P.A., Punta Gorda, for Appellant. B.A.V-G., pro se. MORRIS, Judge. P.D.V-G., the former husband, appeals a supplemental final judgment for modification, which granted exceptions filed by B.A.V-G., the former wife, to the general magistrate's report and recommendations and denied the former husband's supplemental petition for modification. We reverse because the former husband demonstrated a substantial change in circumstances necessary for modification, as found by the general magistrate. The parties were married and have two children together, born in June 2010 and January 2012. The parties divorced in August 2015, and the final judgment of dissolution provided for equal timesharing and shared parental responsibility. Around the time of the divorce, the former wife began a romantic relationship with her boyfriend, and the two of them had a child together in November 2016. In August 2018, the former husband filed a supplemental petition for modification of the final judgment, seeking a change in parental responsibility and timesharing based on incidents involving the former wife and her boyfriend, the former wife's harassment of the former husband, and the former wife's interference with the former husband's visitation and shared parental responsibility. After an evidentiary hearing on August 8, 2019, the general magistrate found that there had been a substantial change in circumstances based on the former wife's behaviors, her relationship with her boyfriend, and the removal of the children from the former wife's "temporary care" during a dependency case that had been opened in 2017. The magistrate also made detailed findings regarding the best interests of the children. Regarding domestic violence, the magistrate found that "[t]here is a significant history of domestic violence and police activity" between the former wife and her boyfriend and that the former wife significantly minimalized her history of domestic violence with her boyfriend. The magistrate also found that the boyfriend, who serves as a parental figure, has a "significant history of substance and alcohol abuse," although noting that he was doing well with his sobriety. The magistrate recommended that the former husband's request for sole parental responsibility be denied but that the former husband should be designated as the ultimate decision- -2- making parent on the issues of health care and education. The magistrate also recommended amending the timesharing to give the former wife visitation on alternating weekends. The former wife filed exceptions to the magistrate's report and recommendations, which the circuit court granted. In a January 24, 2020, order on the former wife's exceptions, the trial court ruled as follows: The Former Husband alleged the parties' children were removed from the Former Wife by the Department of Children and Families more than a year before he filed his supplemental petition for modification. The Former Husband's supplemental petition was heard by a General Magistrate on August 8, 2019 after which the Magistrate granted the Former Husband's petition citing the following as substantial and material changes in circumstances: a. the [Former Mother's] behaviors: b. the [Former Mother's] relationship with her paramour: c. the removal of the minor children from the [Former Wife's] temporary care (by the Department of Children and Families). That the Magistrate erred as a matter of law is evident in his own Report and Recommendations [Report]. The court directs the parties' attention to . . . where he describes the removal of the children from the [Former Wife] as "temporary." In order for a court to grant a supplemental petition for modification of a parenting plan the petitioner must first allege and prove the occurrence of a substantial, material and permanent change in circumstances. The Former Husband alleged . . . the [Former Wife] was reunified with the parties' children in February of 2018, almost seven months before he filed his supplemental petition. Thus, the temporary emergency had been resolved and could not form the basis of the later permanent change in circumstances. The trial court entered a supplemental final judgment, denying the former husband's supplemental petition for modification. -3- On appeal, the former husband argues that the trial court applied an incorrect legal standard when reviewing the magistrate's report. The former husband argues that the relevant statute, section 61.13, Florida Statutes (2018), does not require a change in circumstances to be permanent. He also argues that the trial court failed to consider that the magistrate relied on the former wife's relationship with her boyfriend in finding a change in circumstances. This court reviews de novo the trial court's review of a magistrate's report and recommendations. See In re Drummond, 69 So. 3d 1054, 1057 (Fla. 2d DCA 2011) ("In virtually all review proceedings, the reviewing court has an identical ability to determine what law will be applied to the facts in reaching a decision. Thus, in this context, the trial court should conduct a de novo review to assure that the magistrate has selected the correct law to apply in reaching his or her decision. . . . Likewise, this court will also review de novo to determine that both the magistrate and the trial judge applied the correct law."); Coriat v. Coriat, 306 So. 3d 356, 358 (Fla. 3d DCA 2020) ("Our review of the trial court's review of the general magistrate's Report and Recommendations is de novo." (quoting Lopez v. Dep't of Revenue, 201 So. 3d 119, 123-24 (Fla. 3d DCA 2015)). Section 61.13(3) provides in relevant part that "[a] determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child." In other words, "[a] party seeking to modify a parenting plan 'must show that (1) circumstances have substantially and materially changed since the original custody -4- determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody.' " Meyers v. Meyers, 295 So. 3d 1207, 1211 (Fla. 2d DCA 2020) (alteration in original) (quoting Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018)). The trial court erred in focusing on the fact that the removal of the children from the former wife's care had been temporary rather than on the overall nature of the change in circumstances as alleged by the former husband and found by the magistrate.1 Much of the change in circumstances alleged by the former husband and found by the magistrate relates to the domestic violence between the former wife and her boyfriend. Indeed, the law holds that "parents engaging in domestic violence in front of their children constitutes an unanticipated, material, and substantial change in circumstances supporting modification of a timesharing arrangement." Meyers, 295 So. 3d at 1211 (citing Slaton v. Slaton, 195 So. 3d 1192, 1194 (Fla. 2d DCA 2016), receded from on other grounds by Mallick v. Mallick, 311 So. 3d 243 (Fla. 2d DCA 2020)). "Domestic violence is one of the factors for the trial court's evaluation of the child's best 1The trial court did not cite any authority for its ruling, and neither the statute nor the case law requires the change to be permanent. See Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005) (adopting the substantial change test in Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003), for modifications of child custody: the movant must show that the circumstances have substantially, materially changed since the original custody determination, that the child's best interests justify changing custody, and that the substantial change must be one that was not reasonably contemplated at the time of the original judgment). Some cases mention permanency in the context of timesharing or custody, but they do not address permanency as a requirement. See, e.g., C.N. v. I.G.C., 291 So. 3d 204 (Fla. 5th DCA 2020); Dukes v. Griffin, 230 So. 3d 155 (Fla. 1st DCA 2017). It appears that the permanency requirement arises out of case law involving modification of child support or alimony. See, e.g., Dep't of Revenue ex rel. Shirer v. Shirer, 197 So. 3d 1260, 1262 (Fla. 2d DCA 2016); Morrison v. Morrison, 60 So. 3d 410, 413 (Fla. 2d DCA 2011). -5- interests." Id. (citing § 61.13(3)(m)). Thus, "[d]omestic violence and other forms of violent behavior are probative matters in a child custody case." Id. (quoting Waybright v. Johnson-Smith, 115 So. 3d 445, 447 (Fla. 1st DCA 2013)). It was clear that the former husband was not merely relying on the removal of the children from the former wife during the dependency proceedings but that he was also relying on the circumstances that led to their removal, i.e., the domestic violence between the former wife and her boyfriend. The evidence showed that the former wife and her boyfriend were involved in a domestic violence incident in 2017 that was recorded by the parties' then five-year-old daughter. This incident led to the dependency proceedings and the children being placed in the former husband's care in April 2017. The former wife admitted at the evidentiary hearing in August 2019 that she had called the police on her boyfriend "maybe three" times and that she had obtained an injunction against her boyfriend.2 Even though the children were reunified with the former wife in February 2018, the former wife continued her relationship with her boyfriend. In April 2018, the boyfriend called the police and claimed that the former wife attacked him. The police responded to his house, where he was found to be extremely intoxicated. The former husband filed his petition for modification in August 2018, and at that time, the boyfriend was again living with the former wife. After a period of sobriety, the boyfriend had started drinking again, and as part of his dependency case with his child, a safety plan required that he move out of the former 2The former wife also filed a petition for injunction against the former husband in May 2017, but it was dismissed after a hearing. -6- wife's house for thirty days. At the time of the evidentiary hearing in this case in August 2019, the former wife and her boyfriend were living together. Accordingly, the evidence supported the magistrate's conclusion that while the removal of the children from the former wife during the dependency proceedings was temporary, a substantial change in circumstances had occurred based on the former wife's volatile relationship with her boyfriend, which continued beyond the conclusion of the dependency proceedings. Thus, the trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting the former wife's exceptions to the magistrate's report on that basis. We need not address the other arguments raised by the former husband on appeal because the trial court did not cite any other basis in granting the former wife's exceptions. We reverse the supplemental final judgment and remand with directions for the trial court to enter an order adopting the report and recommendations of the magistrate. Reversed and remanded. CASANUEVA and SILBERMAN, JJ., Concur. -7-