        IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


JASON RAY RIVERA,

              Appellant,

v.                                                       Case No. 5D17-2198

SHANNON PURTELL,

              Appellee.

________________________________/

Opinion filed June 22, 2018

Appeal from the Circuit Court for
Orange County,
Heather Pinder Rodriguez, Judge.

Christie Mitchell, of The CLM Law Firm,
P.A., Orlando, for Appellant.

Shannon L. Akins, of Law Offices of
Shannon L. Akins, P.A., Orlando, and David
T. Roberts, of The Roberts Family Law
Firm, P.A., Orlando, for Appellee.


EISNAUGLE, J.

       Jason Ray Rivera (“Father”) timely appeals an order that granted Shannon

Purtell’s (“Mother”) motion for a new trial and set aside a Final Judgment of Paternity,

Parental Responsibility, Timesharing and Child Support (“Final Judgment”). Father’s only

argument on appeal is that the trial court erroneously concluded in its order granting a

new trial that it could not prospectively modify timesharing as of the time the child starts
kindergarten. We agree with Father and reverse the trial court’s order granting a new

trial.

                      The Final Judgment and Order Granting New Trial

         Mother and Father both filed petitions to determine paternity below.           At the

conclusion of trial, the court entered a Final Judgment finding that Father is the child’s

biological and legal father and set a timesharing schedule.1

         Initially, the court ordered equal timesharing, with each parent having the child

multiple nights during the week even though the parties live about fifty miles apart.

However, the Final Judgment provided that once the child started kindergarten, the child’s

residence for school purposes would be Father’s home. At that point, Father would have

majority timesharing during the school year unless Mother has “moved within 25 miles”

of Father’s residence by that time.

         Mother moved for rehearing and a new trial, arguing, inter alia, that the Final

Judgment “improperly and prospectively required what amounts to a relocation of the

child.” She argued that the trial court could not make a “prospective” determination as to

timesharing, citing to J.P. v. D.P., 196 So. 3d 1274 (Fla. 1st DCA 2016). According to

Mother, J.P. prohibits the trial court from making any determination based on future

events.

         After a hearing, the trial court granted Mother’s motion for new trial, citing J.P. and

Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011). In so doing, the trial court echoed the Arthur

decision and reasoned that:

                  the court is not equipped with a crystal ball that enables the
                  court to determine what is best for the child when she is


         1   The child was three years old at the time of trial.


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at a time certain. Thus, in this case, it was entirely proper for the trial court to adjust

timesharing as of the time the child starts kindergarten. As such, we conclude that the

Final Judgment does not violate Arthur’s prohibition on prospective-based best interest

determinations, and that the trial court erred in granting rehearing and a new trial on that

ground.

       We therefore reverse the order granting Mother’s motion for rehearing and new

trial, and instruct the trial court to reinstate the Final Judgment.

       REVERSED and REMANDED.

COHEN, C.J., and TORPY, J., concur.




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       On review, the Florida Supreme Court disagreed and reversed the portion of the

order which prospectively authorized relocation of the child. The court explained:

              the trial court authorized the relocation based in part on its
              conclusion that relocation would be in the best interests of the
              child twenty months from the date of the hearing. Such a
              “prospective-based” analysis is unsound. Indeed, a trial court
              is not equipped with a “crystal ball” that enables it to
              prophetically determine whether future relocation is in the best
              interests of a child. Any one of the various factors outlined in
              section 61.13001(7) that the trial court is required to consider,
              such as the financial stability of a parent or the suitability of
              the new location for the child, could change within the
              extended time period given by the court before relocation.

Id. at 459. In conclusion, the supreme court held that “[b]ecause trial courts are unable

to predict whether a change in any of the statutory factors will occur, the proper review of

a petition for relocation entails a best interests determination at the time of the final

hearing, i.e. a ‘present-based’ analysis.” Id.

       Since Arthur was decided, Florida’s district courts have wrestled with its

application. In Krift v. Obenour, 152 So. 3d 645 (Fla. 4th DCA 2014), for instance, the

fourth district interpreted Arthur narrowly, appearing to conclude that the prohibition on

prospective-based determinations does not apply outside of the context of a petition for

relocation of the child. Id. at 649. In that case, the trial court awarded equal, rotating

timesharing between the parties until the minor child reached kindergarten. Id. at 647.

Upon the child starting school, however, the trial court designated former husband the

primary residential parent and gave him majority timesharing. Id.

       On appeal, former wife argued that the trial court’s modification of timesharing

upon the child starting kindergarten was an “improper prospective relocation of the child.”

Id. at 648. The fourth district disagreed and distinguished Arthur, concluding that the “trial




                                              4
court’s decision regarding the child’s residence upon reaching kindergarten age is not a

ruling on a relocation request.” Id. at 649. The court reasoned that the “parenting plan in

the amended final judgment does not involve ‘relocation’ . . . but rather orders that the

father become the primary residential parent once the child begins kindergarten.” Id.

       In J.P., the first district took a broader view of Arthur, and applied the prospective-

based prohibition to a timesharing determination. In that case, the trial court granted

primary residency for the parties’ six-year-old daughter to the father during elementary

school, but prospectively changed the child’s residency, requiring her to move 300 miles,

when she started middle school. 196 So. 3d at 1275.

       On appeal, the first district reversed, concluding that the trial court’s “prospective-

based” change in the child’s residence was contrary to Arthur. Id. at 1277. The district

court reasoned that:

              the trial court was not equipped with a crystal ball that would
              enable it to determine whether it would be in the best interests
              of the child, who is currently in first grade, to relocate over 300
              miles away to live with her mother when she begins middle
              school. The relevant determination is the best interests of the
              child at the time of the final hearing. At the time of the final
              hearing, the court determined that it was in the child's best
              interests to live with appellant in Orlando and go to school
              there. Thus, the trial court abused its discretion when it
              ordered that she would relocate to live with her mother upon
              finishing elementary school.

Id.

  Arthur Does Not Apply to Determinations Based on Reasonably Certain Future
                                    Events

       We reject Mother’s argument that the Final Judgment in this case violates Arthur.

In our view, Arthur only prohibits a trial court from predicting a change in a child’s best

interests as of some future date or event. Such a practice would, of course, require the



                                              5
trial court to engage in an educated guess at best, and pure speculation at worst.

However, we conclude that Arthur does not prohibit a timesharing plan which, as here,

applies the child’s best interests as determined at the time of the final hearing to an event

that is reasonably and objectively certain to occur at an identifiable time in the future. In

such a case, the trial court’s determination is based upon the facts before it at the final

hearing, and no crystal ball is required.

       Likewise, J.P. does not advance Mother’s argument for two reasons. First, to the

extent J.P. holds that a trial court may not account for reasonably and objectively

anticipated changes when creating a timesharing plan, we find it unpersuasive. Indeed,

when crafting a timesharing plan, a trial court must be free to account for reasonably and

objectively certain future events. Otherwise, the parties would be required to continuously

seek permission from the court after every change that inevitably occurs in a child’s life,

like starting school. We decline Mother’s invitation to interpret Arthur’s prohibition so

broadly that Florida’s trial courts become de facto parents.

       Second, our holding today is not necessarily inconsistent with J.P. In J.P., the

change in residency was not based upon the child starting school outright, but rather on

the child graduating from elementary to middle school. Importantly, there is nothing in

J.P. to indicate that a shift from elementary school to middle school itself would justify a

change in the child’s residency or timesharing. In this case, the material change in

circumstances was the expectation that the child would start school, not simply progress

to the next grade.

       Although not directly on point, we agree with Father that our decisions in Snowden

v. Snowden, 985 So. 2d 584 (Fla. 5th DCA 2008) and Stevens v. Stevens, 929 So. 2d




                                             6
721 (Fla. 5th DCA 2006) are instructive. In Snowden, former husband petitioned to modify

child custody and to enforce a final judgment that provided for a change in custody if

either party consumed alcoholic beverages or illegal drugs while the children were in that

party’s custody. 985 So. 2d at 585–86.

       The trial court denied the petition, finding that although former wife had consumed

alcohol on a couple of occasions, she was never “impaired” while the children were in her

custody. On appeal, former husband argued that Stevens was controlling, and that the

trial court abused its discretion in refusing to order a change in custody based upon a

future event (former wife’s use of alcohol) identified in the final judgment.

       We rejected former husband’s argument, however, reasoning that Stevens

“involved a planned custody change based upon an expected date-certain event.”

Snowden, 985 So. 2d at 587. We noted that in Stevens “the parties could reasonably

anticipate the circumstances that would exist at the end of the husband’s tour of duty, and

the court could therefore make a reasoned best interests determination based upon those

anticipated circumstances.” Id. In contrast to Stevens, we concluded in Snowden that

the trial court “could not have reasonably anticipated when, if ever, the [change in custody]

provision would become operative.” Id.

       The reasoning employed in Snowden is consistent with Arthur and applicable here.

There was nothing speculative or uncertain about the child in this case starting

kindergarten. In fact, section 61.13(2)(b)3.b, Florida Statutes (2016), anticipates that

children will start school and therefore requires a trial court to designate a residence for

school boundary purposes when entering a timesharing order. Such an event is by

definition a reasonably and objectively anticipated change in circumstances that will occur




                                              7
at a time certain. Thus, in this case, it was entirely proper for the trial court to adjust

timesharing as of the time the child starts kindergarten. As such, we conclude that the

Final Judgment does not violate Arthur’s prohibition on prospective-based best interest

determinations, and that the trial court erred in granting rehearing and a new trial on that

ground.

       We therefore reverse the order granting Mother’s motion for rehearing and new

trial, and instruct the trial court to reinstate the Final Judgment.

       REVERSED and REMANDED.

COHEN, C.J., and TORPY, J., concur.




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