      Third District Court of Appeal
                               State of Florida

                           Opinion filed May 20, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1019
                   Lower Tribunal Nos. 09-2093K, 10-1425K
                             ________________


                               Patricia Edgar,
                                    Appellant,

                                         vs.

                               Edward Firuta,
                                    Appellee.



      An Appeal from the Circuit Court for Monroe County, Luis M. Garcia,
Judge.

     Patricia Edgar, in proper person.

     Edward Firuta, in proper person.


Before WELLS, EMAS and LOGUE, JJ.

     WELLS, Judge.
      Patricia Edgar appeals from a parenting plan and an order awarding her

former husband, Edward Firuta over $87,000 in fees and costs associated

therewith, on remand from this court’s decision in Edgar v. Firuta, 100 So. 3d 255

(Fla. 3d DCA 2012). We reverse both orders and remand for an expedited hearing

to set a parenting plan for the parties’ minor daughter and to make express findings

of fact not only with regard to any parenting plan ordered but also as to any fee and

cost award.

      For the most part, the facts pertinent to this appeal are set forth in this

court’s prior decision. There, we reversed a final order that (1) as a sanction

determined it was in the best interests of the parties’ children that all four of them

reside with their father in Key West rather than with their mother in North

Carolina; (2) nullified a substantial amount of unpaid and vested child support

arrearages; and (3) ordered the mother to pay child support to the father without a

determination of need and ability to pay:

         Section 61.13001(3)(e), Florida Statutes, expressly provides that a
      parent’s relocation of a minor child without complying with the
      statute “may be taken into account” by the court in considering a
      petition for modification or relocation. But in this case, it seems clear
      that the trial court’s ruling on modification and on the parenting plan
      were based on the Mother’s contumacious removal of the children to
      North Carolina rather than on an evidence-based assessment of the
      twenty “best interests of the child” factors enumerated in section
      61.13(a)-(t). Here, as in Landingham v. Landingham, 685 So. 2d 946
      (Fla. 1st DCA 1996), “vindication of the trial court’s authority is
      subordinate to the child’s welfare.” Id. at 950 (reversing a change of



                                            2
custody after custodial mother moved from Florida to Colorado with
the child in violation of an injunction).

   Punishment of the Mother for violation of a court order may affect,
but does not conclude, the inquiry regarding the trial court’s
assessment of the “best interests of the child” for purposes of sections
61.13 and 61.13001. The final judgment also lacks evidentiary
findings regarding the other requirement for a modification, that “a
substantial change of circumstances occurred since entry of the
previous custody order that was not reasonably contemplated when
the previous order was entered.” Clark v. Clark, 35 So. 3d 989, 991
(Fla. 5th DCA 2010).

   The Mother’s argument on this point is well taken. The final
judgment modifying the prior order on parental responsibility,
visitation, and timesharing is reversed and remanded for further
proceedings.

  ....

   The final judgment awarded the Father child support and
terminated his existing child support obligation (including an
arrearage of approximately $10,000). The arrearage was vested and
not subject to termination or retroactive modification. Kranz v. Kranz,
661 So. 2d 876, 877 (Fla. 3d DCA 1995). We reverse that portion of
the final judgment.

   The award of attorney’s fees and costs to the Father may have been
warranted in part as a sanction, but the findings of fact and record are
insufficient to sustain the award. There was no proof regarding the
Father’s need and the Mother’s ability to pay. We therefore reverse
the final judgment on this point as well.

III. Conclusion

   The Mother invited swift and firm judicial action when she violated
the Florida court’s order in the relocation case and simply took the
youngest child to North Carolina. Nevertheless, the guiding principle
in the aftermath must continue to be the best interests of the children,
a statutory mandate. We affirm those provisions of the final judgment


                                   3
        sanctioning the Mother for her precipitous actions, but we reverse the
        final judgment insofar as it: (a) summarily granted sole parental
        responsibility of, and exclusive timesharing with, the youngest child,
        to the Father (with limited and supervised time with the Mother); (b)
        determined that Florida, rather than North Carolina, is the appropriate
        and best residential setting for the minor children; (c) terminated the
        prior child support order and arrearage payable to the Mother; and (d)
        entered a new child support obligation payable to the Father and
        awarded attorney’s fees and costs to the Father, in each case without
        determining his need and the Mother’s ability to pay. We remand this
        difficult case, in which the children have been shuttled between the
        two states several times, to the trial court for further proceedings.

    Edgar, 100 So. 3d at 260, 261-62.

        On remand, the mother, unemployed, having received no support for herself

or for the parties’ four children for many years, and residing in North Carolina

where the parties were divorced, asked the trial court to allow her to appear by

telephone for the final hearing to determine where the parties’ children were to

reside. The motion was denied because the trial court, relying on Florida Rule of

Judicial Administration 2.5301 and a number of cases2 predating the effective date

1 Florida Rule of Judicial Administration 2.530, addressing communication
provides in part:

        ...

        (d) Testimony.

        (1)Generally. A county or circuit court judge, general magistrate,
        special magistrate, or hearing officer may allow testimony to be taken
        through communication equipment if all parties consent or if
        permitted by another applicable rule of procedure.
2   M.S. v. Department of Children and Families, 6 So. 3d 102, 104-05 (Fla. 4th

                                          4
of Florida Rule of Civil Procedure 1.451, concluded that it had no discretion to

allow her to so appear because the father objected. The hearing went forward

without the mother or her witnesses following which the parties’ daughter was

ordered to reside with the father and the mother was ordered to pay over $87,000

in fees and costs to the father.

         We reverse both the court ordered parenting plan and the final order

awarding fees and costs to the father because the court below erred in determining

that it had no discretion to allow the mother to testify telephonically in light of the

father’s objection. On January 1, 2014, almost two months before the mother’s

motion to appear telephonically was denied, Rule 1.4513 took effect.4, 5 That Rule

DCA 2009), and S.A. v. Department of Children & Family Services, 961 So. 2d
1066, 1067 (Fla. 3d DCA 2007), relied on below, clearly were both decided before
the effective date of Rule 1.451.
3   Florida Rule of Civil Procedure 1.451 provides in part:

         (a) Testimony at Hearing or Trial. When testifying at a hearing or
         trial, a witness must be physically present unless otherwise provided
         by law or rule of procedure.

         (b) Communication Equipment. The court may permit a witness to
         testify at a hearing or trial by contemporaneous audio or video
         communication equipment (1) by agreement of the parties or (2) for
         good cause shown upon written request of a party upon reasonable
         notice to all other parties. The request and notice must contain the
         substance of the proposed testimony and an estimate of the length of
         the proposed testimony. In considering sufficient good cause, the
         court shall weigh and address in its order the reasons stated for
         testimony by communication equipment against the potential for
         prejudice to the objecting party.

                                           5
allows a trial court to permit a witness to testify at a hearing or trial by

(Emphasis added).
     4   In re Amendments to Florida Rules of Civil Procedure, 131 So. 3d 643, 644

(Fla. 2013), added November 14, 2013, explains:

              New rule 1.451 (Taking Testimony), which we adopt as proposed,
          authorizes a court to permit testimony at a civil hearing or trial by
          audio or video communication equipment by agreement of the parties
          or for good cause shown on written request of a party and reasonable
          notice to all other parties. The Committee proposed the new civil
          procedure rule in response to Florida Rule of Judicial Administration
          2.530 (Communication Equipment), which permits a court to allow
          testimony to be taken through communication equipment if all the
          parties consent or if permitted by another applicable rule of procedure.

             In 2011, at the urging of the Rules of Judicial Administration
          Committee, the Court amended rule 2.530 to allow testimony to be
          taken by communication equipment without the parties’ consent “if
          permitted by another applicable rule of procedure.” See In re Amend.
          Fla. Rules of Jud. Admin., 73 So. 3d 210, 211 (Fla. 2011). That
          amendment was intended to “allow the various Florida Bar rules
          committees to consider whether their bodies of rules should be
          amended to allow for the use of communication equipment without
          the parties’ consent.” Id. According to the report in this case, when
          drafting new rule 1.451, the Committee was mindful of the need for
          consistency with rule 2.530. The Committee also addressed the need
          to provide guidance to the court by adding a committee note to the
          rule that offers factors the court may consider in determining whether
          good cause exists to permit testimony by audio or video equipment
          over objection.
5   The Committee Note to Rule 1.451 provides:

          This rule allows the parties to agree, or one or more parties to request,
          that the court authorize presentation of witness testimony by
          contemporaneous video or audio communications equipment. A party
          seeking to present such testimony over the objection of another party

                                             6
contemporaneous audio or video communication equipment either by agreement of

the parties or “for good cause shown upon written request of a party upon

reasonable notice to all other parties.” Fla. R. Civ. P. 1.451 (Emphasis added).

The court below was not, therefore, barred from considering the mother’s request

to testify by telephone simply because the father objected but could have allowed

the testimony for good cause shown. For this reason alone, we reverse both orders

on appeal and remand on an expedited basis for a new trial to determine a

parenting plan for the parties’ youngest child. On remand, the court below shall

consider whether good cause exists to allow the mother and her witnesses to appear

by telephone.6 Any parenting plan entered by the court below shall address not

        must still satisfy the good-cause standard. In determining whether
        good cause exists, the trial court may consider such factors as the type
        and stage of proceeding, the presence or absence of constitutionally
        protected rights, the importance of the testimony to the resolution of
        the case, the amount in controversy in the case, the relative cost or
        inconvenience of requiring the presence of the witness in court, the
        ability of counsel to use necessary exhibits or demonstrative aids, the
        limitations (if any) placed on the opportunity for opposing counsel
        and the finder of fact to observe the witness’s demeanor, the potential
        for unfair surprise, the witness’s affiliation with one or more parties,
        and any other factors the court reasonably deems material to weighing
        the justification the requesting party has offered in support of the
        request to allow a witness to testify by communications equipment
        against the potential for prejudice to the objecting party. With the
        advance of technology, the cost and availability of contemporaneous
        video testimony may be considered by the court in determining
        whether good cause is established for audio testimony.


6   While we do not mandate this result, we would be remiss were we not to note the

                                           7
only section 61.130017 of the Florida Statutes but also shall be supported by

detailed findings of fact and conclusions of law as to each of the factors

enumerated in section 61.13(3)(a)-(t) of the Florida Statutes.8 Furthermore, any fee

or cost award shall address the parties’ need and ability to pay and detail the


importance of such testimony which was addressed in Rose v. Ford, 861 So. 2d
490, 493 (Fla. 4th DCA 2003) (quoting Andrews v. Andrews, 624 So. 2d 391, 392
(Fla. 2d DCA 1993), where the court observed:

            Decisions affecting child custody require a careful
            consideration of the best interests of the child. § 61.13,
            Fla. Stat. (1991). This court has previously discouraged
            trial courts from using default as a sanction when dealing
            with the sensitive issue of child custody. Chase v. Chase,
            519 So. 2d 637 (Fla. 2d DCA 1987). In such cases, the
            testimony of a child’s natural mother will almost always
            aid the court in fairly determining the child’s best
            interests. See Doane v. Doane, 279 So. 2d 46 (Fla. 4th
            DCA 1973).

            624 So. 2d at 392; see also McEwen [v.Rodriguez], 766 So. 2d
      [316] at 317 [Fla. 4th DCA 2000].
7 Section 61.13001 of the Florida Statutes addresses parental relocation with a
child.
8 See Velazquez v. Millan, 963 So. 2d 852, 855 (Fla. 3d DCA 2007) (“[W]e
reverse the custody award and remand this matter for entry of a custody award
addressing all of the factors mandated by section 61.13 of the Florida Statutes.”);
see also Decker v. Lyle, 848 So. 2d 501, 503 (Fla. 2d DCA 2003) (confirming
either “the record or the final judgment must reflect that the custody determination
was made in the best interests of the child” and concluding as “neither the
transcript of the trial court’s oral pronouncement of its ruling nor the temporary
custody order (which merely incorporated by reference the trial court’s oral
pronouncement) addresses the best interests of the child. . . we must reverse and
remand the case for a further hearing”).

                                         8
amount of time, the service provided, and the hourly rate being awarded. Moya v.

Moya, 118 So. 3d 916, 918-19 (Fla. 3d DCA 2013) (quoting Rosen v. Rosen, 696

So. 2d 697, 700 (Fla. 1997), outlines the appropriate analysis in this regard:

      Section 61.16 constitutes a broad grant of discretion, the operative
      phrase being “from time to time.” The provision simply says that a
      trial court may from time to time, i.e., depending on the circumstances
      surrounding each particular case, award a reasonable attorney’s fee
      after considering the financial resources of both parties. Under this
      scheme, the financial resources of the parties are the primary factor
      to be considered. However, other relevant circumstances to be
      considered include factors such as the scope and history of the
      litigation; the duration of the litigation; the merits of the respective
      positions; whether the litigation is brought or maintained primarily to
      harass (or whether a defense is raised mainly to frustrate or stall);
      and the existence and course of prior or pending litigation.
      Accord Dybalski v. Dybalski, 108 So. 3d 736, 738 (Fla. 5th DCA
      2013).

         Moya proceeds to clarify:

        Additionally, Tullos v. Tullos, 37 So.3d 355, 357 (Fla. 2d DCA
      2010), citing Rowe, explains:

             [I]n computing an attorney fee, the trial judge should (1)
             determine the number of hours reasonably expended on
             the litigation; (2) determine the reasonable hourly rate for
             this type of litigation; (3) multiply the result of (1) and
             (2) [“the lodestar amount”]; and, when appropriate, (4)
             adjust the fee on the basis of the contingent nature of the
             litigation or the failure to prevail on a claim or claims.

             Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145,
             1151–52 (Fla.1985); Lanham v. Lanham, 528 So. 2d 80,
             80 (Fla. 2d DCA 1988). Further, in dissolution actions
             under section 61.16, Florida Statutes (2008), the trial
             court must exercise its discretion “to provide justice and



                                          9
            ensure equity between the parties.” Rosen v. Rosen, 696
            So. 2d 697, 700 (Fla. 1997).

              After determining the lodestar amount, the trial court
            must consider the parties’ respective financial resources
            and then assess other relevant circumstances including
            the scope and history of the litigation, its duration, the
            merits of the respective positions, whether the parties
            bring or maintain the litigation primarily to harass or
            present a defense mainly to frustrate or stall, and the
            existence and course of prior or pending litigation. Id.

      Accord Campbell v. Campbell, 46 So. 3d 1221, 1222–23 (Fla. 4th
      DCA 2010) (“The law is ‘well established that the trial court must set
      forth specific findings concerning the hourly rate, the number of hours
      reasonably expended and the appropriateness of reduction or
      enhancement factors.’ Hoffay v. Hoffay, 555 So. 2d 1309, 1310 (Fla.
      1st DCA 1990) ... Where there is nothing in the trial court’s order that
      allows the appellate court to discern whether any of the above factors
      were considered in determining a reasonable attorney's fee, a fee
      award simply taking the amount charged by the attorney and
      determining it to be reasonable is improper and an abuse of
      discretion.”).

Moya, 118 So. 3d at 918-19.

      The orders on review are, therefore, reversed and remanded for an expedited

hearing in accordance with the analysis outlined above.




                                        10
