          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-5125
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MATTHEW GARCIA,

    Appellant,

    v.

CYNTHIA GUILES,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
Michael Jones, Judge.

                        September 5, 2018


PER CURIAM.

     Matthew Garcia appeals a final judgment denying his
supplemental petition for modification of timesharing. Garcia
sought primary custody of his eleven-year-old son, but the trial
court found Garcia had not shown a substantial change in
circumstances since the parties’ divorce. Garcia argues that (i) the
court abused its discretion in allowing the child’s treating
psychotherapist to testify and (ii) that the court denied Garcia due
process when it provided inadequate notice before deciding to
appoint a guardian ad litem for the child. We affirm.

                                 I.

    Garcia married Cynthia Guiles in 2005. He was twenty-five;
she was seventeen. They had one child—a son—who is the subject
of this appeal. Garcia and Guiles divorced in Oklahoma in 2010,
and the Oklahoma court awarded Guiles primary custody. The
case was domesticated to Florida, where Garcia filed the petition
at issue.

     Garcia’s petition alleged that since the divorce, Guiles had
relocated with the child nine times, enrolled him in five different
elementary schools, ignored his medical and educational needs,
and interfered with Garcia’s ability to communicate with the child.
It further alleged that Guiles’s new husband, the child’s new step-
father, had abused the child. The petition also alleged that Garcia
had recently retired from the Air Force and was now in the better
position to attend to the child’s needs.

    The parties stipulated to the appointment of an independent
expert to opine as to the social and psychological status of the
parties and the child. The expert met with the parties, family
members, and the child, as well as the child’s treating
psychotherapist. On the first day of trial, the expert opined that
the child “would be better served” living with Garcia. She
acknowledged, though, that it “was difficult to make
recommendations” because she believed “both parents are good
parents and care deeply for their son.”

     To rebut this testimony, Guiles sought to introduce the
testimony of the child’s treating psychotherapist. Garcia argued
that if the court were to consider allowing the psychotherapist to
testify, it should appoint a guardian ad litem to first determine
whether it was in the child’s best interest to waive the
patient/psychotherapist privilege. ∗ Not wanting to extend the trial,
the court ordered the parties to work on resolving the issue
overnight and suggested the parties retain a guardian ad litem to
expeditiously review the case and render an opinion.

     After contacting several attorneys, the parties were able to
retain Susan Winterberger. The next morning, Winterberger
informed the court that she might be unable to make an informed
decision that day and that she believed she would not be “giving it
the appropriate attention it deserves with trying to get all that

    ∗
        § 90.503(3)(d) Fla. Stat.

                                    2
accomplished [that] morning.” She also told the court that because
of other obligations, she might return in the afternoon only to say
that she was uncomfortable rendering an opinion. The court
indicated it would be best if she were able to provide an opinion
that day.

     Ultimately, Winterberger testified that waiving the
patient/psychotherapist privilege would be in the child’s best
interest. This opinion was based, at least in part, on the
psychotherapist’s statement that she was “an advocate for the
child” and that she “wanted to testify.” The court then allowed the
psychotherapist’s testimony, but concluded in its written final
order that the psychotherapist “display[ed] a distinct bias toward
the mother’s position” and that the court would “give her
recommendation the little weight it deserves.” After hearing the
testimony of the psychotherapist, the court determined that there
had been no substantial change in circumstances since the parties’
divorce. The court therefore ordered that the child continue to
reside primarily with the mother.

                                  II.

     On appeal, Garcia first argues that the court abused its
discretion in allowing the psychotherapist to testify. He cites to
this court’s decision in Leonard v. Leonard, which said that “court-
ordered independent psychiatric examinations of the parties and
their children will accomplish the proper balance of providing the
trial judge with information relevant to the child custody decision,
while preserving psychiatrist-patient confidentiality.” 673 So. 2d
97, 99 (Fla. 1st DCA 1996); see also Schouw v. Schouw, 593 So. 2d
1200, 1201 (Fla. 2d DCA 1992) (“A court ordered psychiatric or
psychological examination is the suggested method for balancing
the court’s need to determine the parents’ mental health as it
relates to the best interest of the child, and the need to maintain
the confidentiality between a treating psychotherapist and the
patient.”). In Leonard, the father sought to depose the mother’s
psychologist and the trial court denied the mother’s motion for
protective order. 673 So. 2d at 99. The mother then filed a petition
for writ of certiorari, which this court granted. Id. It is true that in
situations where a parent’s mental health is called into question,
allowing the parties to directly access to the other’s medical

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records, over their objection, is a departure from the essential
requirements of law. Id.; Schouw, 593 So. 2d at 1201; Roper v.
Roper, 336 So. 2d 654, 656 (Fla. 4th DCA 1976). But when the
privilege is waived, “[t]he trial court [is] faced with an entirely
different situation.” Roper, 336 So. 2d at 657. Although “neither
parent could have waived the psychotherapist privilege, because
the subject matter of the litigation was the child’s welfare,” Brown
v. Brown, 180 So. 3d 1070, 1072 (Fla. 1st DCA 2015), the court
appointed a guardian ad litem to protect the interests of the child,
and the guardian determined that it was in the child’s best interest
to waive the privilege, see Phillips v. Nationwide Mut. Ins. Co., 347
So. 2d 465, 466 (Fla. 2d DCA 1977) (“The next friend of a minor
has power to act on that minor’s behalf.”). Accordingly, we conclude
that the court—having considered the opinion of the child’s
guardian ad litem that waiving the privilege was in the child’s best
interest—did not err in allowing the psychotherapist to testify.

                                 III.

     We further conclude that the court did not violate Garcia’s due
process rights when it appointed a guardian ad litem. See Vollmer
v. Key Dev. Properties, Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA
2007) (“[T]he right to be heard includes the right to introduce
evidence at a meaningful time and in a meaningful manner.”)
(marks and citation omitted). The thrust of Garcia’s argument is
that the court pressured the guardian to make a decision without
affording her time to fully consider the issue. He argues in his brief
that “the trial court strongly implied that [it] was not willing to
consider a continuance of the trial to have a proper evidentiary
hearing on the question presented.” Init. Brief at 24. However, no
one ever moved for a continuance. After the guardian ad litem was
retained, Garcia’s attorney stated that—without waiving her
objection to the court’s decision to appoint a guardian ad litem in
the first place—she did not object to the selection of that particular
person. She then explained the time constraints the guardian ad
litem faced, but still did not move for a continuance.

     More to the point, the issue of whether Garcia had sufficient
notice and an opportunity to be heard about the guardian ad litem
is separate and distinct from the issue of whether the guardian ad
litem (once appointed) had sufficient time to make an informed

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decision. We conclude Garcia has not shown any due process
violation.

                                IV.

     Finally, Garcia argues that even if the psychotherapist’s
testimony was properly admitted, the court abused its discretion
when it found no substantial change in circumstances. We reject
this argument as well. A party seeking to modify a parenting plan
“must show that (1) circumstances have substantially and
materially changed since the original custody determination, (2)
the change was not reasonably contemplated by the parties, and
(3) the child’s best interests justify changing custody.” Reed v.
Reed, 182 So. 3d 837, 840 (Fla. 4th DCA 2016). “[D]emonstrating
to the court that there has been a sufficient substantial change in
circumstances places an extraordinary burden on the party
seeking to modify the underlying judgment.” Korkmaz v. Korkmaz,
200 So. 3d 263, 265 (Fla. 1st DCA 2016) (marks and citation
omitted).

      Although there have been changes in the parties’ lives, some
of these changes were anticipated at the time of the original
divorce decree (such as the Garcia’s retirement from the Air Force).
Cf. Bryant v. Meredith, 610 So. 2d 586, 588 (Fla. 2d DCA 1992)
(“[T]he mother’s retirement from the service cannot constitute a
substantial change of circumstances.”). Other changes (such as
Garcia’s general assertion that the mother has not fostered
communication between him and the child) do not rise to the level
of a substantial change in circumstances. Sanchez v. Hernandez,
45 So. 3d 57, 62 (Fla. 4th DCA 2010) (holding that the party
seeking to modify a custody order must “prove more than merely
an acrimonious relationship and a lack of effective communication
in order to show a substantial change”); Boykin v. Boykin, 843 So.
2d 317, 321 (Fla. 1st DCA 2003) (“while the evidence in the instant
case establishes that the former wife’s home had at times been
poorly kept and that her children were unkempt, these
circumstances alone do not constitute a substantial and material
change in circumstances.”). Considering all the record evidence, we
cannot conclude that the court abused its discretion in concluding
there was no substantial change in circumstances to support the
petition.

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     Finally, Garcia insists that “it is clear that it would be in [the
child]’s best interests to reside with [him] the majority of the time.
Init. Brief at 47. But “[t]he preliminary question of a substantial
and material change is a prerequisite to considering the best
interests of the child.” Mesibov v. Mesibov, 16 So. 3d 890, 892 (Fla.
5th DCA 2009); cf. also Jannotta v. Hess, 959 So. 2d 373, 374 (Fla.
1st DCA 2007) (“Here, there was evidence that the former wife
had . . . remarried, improv[ed] her life financially and otherwise;
and was somewhat better able than the former husband to provide
a stable home for the children. However, we have repeatedly held
that such evidence is insufficient to constitute a substantial and
material change in circumstances justifying a change in custody.”).

    AFFIRMED.

B.L. THOMAS, C.J., and MAKAR and WINSOR, 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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Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for
Appellant.

Tonya Holman, Shalimar, for Appellee.




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