         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D19-0102
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MELISSA JEAN THOMAS,

    Appellant,

    v.

HENRITHSON JOSEPH,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Columbia County.
Paul S. Bryan, Judge.

                       September 18, 2019

BILBREY, J.

    Melissa Jean Thomas, the former wife, appeals the amended
order on the supplemental petition to modify parenting plan filed
by Henrithson Joseph, the former husband. The issue presented
on appeal is whether shared parental responsibility and
timesharing between the parties as established by a final
judgment of dissolution of marriage may thereafter be modified
without findings that the modification is in the best interests of
the child. Although the former wife is not the child’s biological
mother, we hold that under the circumstances of this case, the
amended order is erroneous on its face, and it must be reversed
and remanded for further proceedings.

                          Background

    In 2008, during the marriage of Ms. Thomas and Mr. Joseph,
they adopted I.J.     Also during the marriage, Mr. Joseph
purportedly fathered Z.J. Unlike I.J., no record evidence was
presented during the dissolution or the modification that Z.J. was
adopted by Ms. Thomas. It was established during the dissolution
that Z.J.’s biological mother was a relative of Ms. Thomas and that
shortly after Z.J.’s birth, the birth mother voluntarily gave Z.J. to
Ms. Thomas and Mr. Joseph to raise as their own. Z.J.’s birth
certificate listed no father but listed the child’s surname as
“Joseph.”

     The marriage of Ms. Thomas and Mr. Joseph was dissolved by
the final judgment of dissolution entered December 26, 2012. In
the final judgment, the trial court found that the parties agreed
that Z.J. “is the biological child of the Husband, but is not the
biological child of the Wife.” The court recognized the parties’
agreement “that the children should remain together and that the
parties will have shared parental responsibility [of both I.J. and
Z.J.], with the Wife having majority timesharing with both
children and the Husband having timesharing with them every
other weekend.”

     The court provided Mr. Joseph “timesharing with the children
every other weekend” and as the parties agreed for holidays. The
final judgment specified how exchanges of the children would take
place and provided that more specific orders regarding
timesharing could be sought by either party. 1 Finally, the court
ordered that “[t]he parties may modify as they mutually agree” but
if they could not agree, “the timesharing arrangement ordered
herein shall control.” No appeal was taken from the final judgment
of dissolution of marriage.

     In May 2018, Mr. Joseph filed his supplemental petition to
modify parental responsibility. He alleged certain changes in
circumstances since the entry of the final judgment of dissolution,
including his superior ability to provide a stable and comfortable
home for the children and his concern about the living conditions
and care Ms. Thomas provided. Based on these allegations of

    1  The final judgment also denied any authority over the
children for an unrelated third party, Mr. Joseph’s girlfriend. This
person was not a party to the dissolution action, the modification
proceeding, or this appeal.

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changed circumstances, Mr. Joseph sought sole parental authority
and timesharing of Z.J., and at least equal timesharing with I.J.

     In her response, Ms. Thomas denied Mr. Joseph’s allegations
and specifically denied that she failed to properly care for the
children. In that response Ms. Thomas also “affirmatively asserts
that the Former Husband is not the biological father of the minor
child [Z.J.].” 2

      The court heard Mr. Joseph’s supplemental petition to modify
in October 2018. The hearing was not transcribed, but a
stipulation of the evidence was prepared and approved for this
appeal. See Fla. R. App. P. 9.200(b)(5). The approved stipulated
evidence included Z.J.’s date of birth; that his “biological mother”
was related to Ms. Thomas “in some way” but was now deceased;
that Z.J.’s birth certificate lists his surname as “Joseph;” and that
Z.J. lived with Ms. Thomas and Mr. Joseph beginning shortly after
the birth in 2008, and resided primarily with Ms. Thomas after the
final judgment of dissolution was entered in 2012. The stipulated
testimony included Mr. Joseph’s acknowledgment that he had
denied he was Z.J.’s biological father in two court filings
subsequent to the final judgment (in child support proceedings)
and that he is not actually Z.J.’s biological father. However, he
“accepts the determination that he is the biological father.”

     In its amended order on the supplemental petition to modify
the parenting plan, the trial court found “an unforeseen
substantial change in circumstances has been shown” but did not
elaborate. See § 61.13(2)(c), Fla. Stat. (2018). The court also found
that the final judgment “clearly shows” that Ms. Thomas is not a
“parent” of Z.J. and, while there was no DNA evidence of
parenthood, “no one other than [Mr. Joseph] has established any
legal/court-ordered right to the child.” The court ordered that Mr.
Joseph was Z.J.’s “only living legal parent” and thus “may exercise
all parental authority regarding [Z.J.], including where he resides
and with whom.” Accordingly, the amended order eliminated any
parental status, parental responsibility, and timesharing for Ms.

    2Prior to the hearing on Mr. Joseph’s supplemental petition
to modify, Ms. Thomas filed a motion for paternity testing. The
motion was never addressed by the trial court.

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Thomas which had previously been established in the final
judgment of dissolution of marriage. The court did not find or set
out in its amended order any determination that it was in the
child’s best interests to modify the parental responsibility and
timesharing provisions in this manner six years after entry of the
final judgment. 3 See § 61.13(3), Fla. Stat. (2018).

     Ms. Thomas filed a timely motion for rehearing on grounds
that the court had failed to acknowledge her court-ordered shared
parental responsibility and majority parenting time with both
children, as provided in the final judgment of dissolution. She also
asserted that the court failed to apply the presumption of
legitimacy for children born during a marriage. Finally, she
argued that the trial court failed to determine and make findings
that modification was in the best interests of Z.J. See § 61.13(2)(c),
Fla. Stat. Rehearing was denied and this appeal followed.

                             Analysis

     Ms. Thomas claims that the trial court failed to recognize her
parental status under the final judgment of dissolution and
modified the terms of the final judgment without a determination
that the modification is in the best interests of the child. She also
argues that she was deprived of equal protection of law when the
court, on modification, did not apply the presumption that would
apply if Z.J. had been her biological child born during the
marriage. See Department of Health & Rehab. Services v. Privette,
617 So. 2d 305 (Fla. 1993) (holding if a child is born during a
marriage, the law presumes that the husband of the wife and
mother is the child’s father). Because we are compelled to reverse
on the first issue, we need not address the constitutional issue. 4



    3 In fact, the amended order expressed concern that Z.J. and
I.J. would not reside together and stated that the children
remaining together would be in their best interest.
    4 We do note that “paternity and legitimacy are related, but
nevertheless separate and distinct concepts.” Daniel v. Daniel, 695
So. 2d 1253, 1254 (Fla. 1997).

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     “Generally, the failure to provide a transcript or a proper
substitute precludes consideration of the merits of a challenge to a
circuit court’s decision to modify” parenting responsibilities.
Kilgore v. Kilgore, 729 So. 2d 402, 405 (Fla. 1st DCA 1998).
“However, even in the absence of a transcript, an appellate court
can reverse in those instances when the trial court makes an error
of law on the face of the judgment.” Smith v. Wallace, 249 So. 3d
670, 671 (Fla. 2d DCA 2017).

     The face of the amended order on the supplemental petition
to modify does state the court’s finding that “an unforeseen
substantial change in circumstances has been shown,” and the
absence of a transcript precludes appellate review of this finding
of fact. However, the amended order contains no mention of Z.J.’s
welfare, best interests, and circumstances of the family. No
reference to section 61.13 or the statutory factors listed in section
61.13(3)(a) – (t) appears in the order. Ms. Thomas’ motion for
rehearing asserted that the final judgment of dissolution was
never appealed or otherwise set aside, that it established her
“rights as a parent,” that it established her majority timesharing,
and that the court had failed to analyze whether modification
served the best interests of Z.J. Accordingly, the issue on appeal
was preserved. See Owens v. Owens, 973 So. 2d 1169 (Fla. 1st DCA
2007) (affirming where appellate challenge to adequacy of trial
court’s findings in final judgment not preserved by motion for
rehearing below).

     The trial court’s findings in its amended order — that no
person other than Mr. Joseph had any “legal/court-ordered” rights
regarding Z.J. and that the final judgment of dissolution “clearly
shows that [Ms. Thomas] is not the parent” of Z.J. — are in direct
conflict with the terms of the final judgment. The final judgment
established that Mr. Joseph and Ms. Thomas “shall have shared
parental responsibility for the minor children” and Ms. Thomas
had “majority timesharing with the children.”

    By using these terms in the final judgment, Ms. Thomas was
established as a parent for the purpose of the final judgment. See
§ 61.046(17), Fla. Stat. (2012) (defining “shared parental
responsibility” to mean “a court-ordered relationship in which both
parents retain full parental rights and responsibilities with

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respect to their child and in which both parents confer with each
other so that major decisions affecting the welfare of the child will
be determined jointly”); § 61.046(17) (defining “time-sharing
schedule” as the time “that a minor child will spend with each
parent”). There are various ways non-parents can have “custody”
of a child. See, e.g., § 39.402, Fla. Stat. (2019) (allowing a child
believed to be dependent to be sheltered in the custody of a non-
parent); § 751.05, Fla. Stat. (2019) (allowing a non-parent to be
awarded temporary custody of child). But under its statutory
definition, only a parent can have “shared parental responsibility”
or “time sharing” as the final judgment granted Ms. Thomas with
Z.J. 5

     It may well have been error for the final judgment, in
effectuating the agreement of the parties, to deem Ms. Thomas a
parent of Z.J. But the final judgment was never appealed and
there is no indication in the record that any party ever challenged
its validity until Mr. Joseph’s petition for modification was filed
five and a half years later. As stated in Wade v. Hirschman, 903
So. 2d 928, 932-33 (Fla. 2005), “After the trial court enters the
original final judgment decree, it is res judicata of the facts and
circumstances at the time the judgment became final.” Even a
potentially erroneous judgment is entitled to res judicata effect.
See Fahey v. Fahey, 213 So. 3d 999 (Fla. 1st DCA 2016).

     Ms. Thomas correctly relies on the final judgment of
dissolution as the status quo for these parties’ parental
responsibilities and timesharing with Z.J. until properly modified.
Because it is res judicata of the rights and obligations of the parties
as of the time it became final, the final judgment is equally
effective to establish Mr. Joseph’s status as Z.J.’s father and Ms.
Thomas’ parental status with shared parental responsibility and
majority timesharing.         Any modification of the parental
responsibilities and time-sharing schedule in the judgment of
dissolution must comply with the requirements of section 61.13(3),
Florida Statutes (2018).


    5   As between parents, consideration of “custody” was
eliminated from Florida statutes in 2008. See Ch. 2008-61, Laws
of Florida.

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     Because the order on appeal disregarded the res judicata
effect of the final judgment and modified the parental
responsibilities and parenting plan/timesharing established in the
final judgment without any findings on the factors set out in
section 61.13(3)(a) – (t), the order must be reversed and remanded
for further proceedings. See D.M.J. v. A.J.T., 190 So. 3d 1129 (Fla.
2d DCA 2016); Holland v. Holland, 140 So. 3d 1155 (Fla. 1st DCA
2014). On remand, we note the “discretion afforded to trial courts
in modification is narrower than in initial time-sharing
determinations.” Ness v. Martinez, 249 So. 3d 754, 757 (Fla. 1st
DCA 2018).

    REVERSED and REMANDED.

ROBERTS and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Jeffrey A. Conner of Three Rivers Legal Services, Inc., Lake City,
for Appellant.

R. Pierce Kelley, Jr., Fort White, for Appellee.




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