       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 9, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1854
                         Lower Tribunal No. 11-28790
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                              Candice Wolfson,
                                    Petitioner,

                                        vs.

                              Howard Wolfson,
                                   Respondent.



     A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Stanford Blake, Judge.

     Sandy T. Fox (Aventura), for petitioner.

       Sidweber & Weintraub and Karen B. Weintraub and Robert W. Sidweber
(Fort Lauderdale), for respondent.


Before WELLS, SHEPHERD and LOGUE, JJ.

     SHEPHERD, J.
      Candice Wolfson petitions for certiorari relief from an order granting an

emergency request for temporary supervised visitation with her son. Because the

trial court departed from the essential requirements of law when it entered the

order without providing both parties an opportunity to be heard in this post-

dissolution child custody dispute, we grant the petition and remand for further

proceedings.

      This case has had a tortured, post-dissolution procedural history. Since the

final judgment of dissolution was entered on August 28, 2012, incorporating a

mediated marital settlement agreement and detailed parenting plan, the parties

have engaged in continuous, unending litigation over their then four-year-old, now

seven-year-old son. In October 2014, the father, Howard Wolfson, petitioned for

modification of the parties’ parenting plan, which provided for shared parental

responsibility and equal time sharing with the child. Mr. Wolfson sought sole

parental responsibility and limited supervised visitation by the mother. He also

moved the trial court, on an emergency basis, to suspend the mother’s contact with

the child while the petition for modification was litigated on the ground the mother

was alienating the child from him and causing the child psychological harm. Mrs.

Wolfson filed a mirror-image counter-petition in which she sought the same relief,

except in her favor.




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      The matter initially was assigned to Judge Valerie Manno Schurr, who, on

December 11, 2014, commenced an evidentiary hearing. Mr. Wolfson presented

the testimony of Dr. Cohn, the child’s psychologist, and Dr. Shaw, the child’s

psychiatrist, in support of his allegation of harm to the child. Unfortunately, the

trial court was unable to conclude the hearing, and Mrs. Wolfson did not have the

opportunity to present any evidence. At the time, the child was residing with the

father, and Judge Manno Schurr orally ordered the child to temporarily remain in

the custody of the father, with supervised telephone contact and supervised short

visits with the mother. Judge Manno Schurr intended to continue the evidentiary

hearing within a couple of weeks; however, a few days thereafter she recused

herself.

      The case then was reassigned to Judge Stanford Blake, who began a retrial

of the matter. Over two days, Mr. Wolfson presented his case, again calling Dr.

Shaw and Dr. Cohn, in addition to Dr. Gold, the child’s occupational therapist.

Once again, the time set aside for the hearing proved to be insufficient and Mrs.

Wolfson could not present her case. Judge Blake ordered the supervised visits to

continue until the matter could be concluded, intending to promptly set aside time

to do so. Regrettably, Judge Blake was taken ill and took medical leave.

      Judge Judy Kreeger next inherited the case and decided to continue

presentation of the evidence instead of rehearing from the witnesses who



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previously testified. Mr. Wolfson’s counsel continued and finished presentation of

the father’s case between March 9 and March 16, 2015. Before presenting her

case, Mrs. Wolfson moved to disqualify Judge Kreeger. Her motion was denied,

but later overturned by this Court on Mrs. Wolfson’s petition for writ of

prohibition.

      By the time jurisdiction returned to the trial court, Judge Blake had returned

to the bench and the parties scheduled various pending motions before him. On

July 27, 2015, Judge Blake entered the order on appeal, based on the evidence

previously heard by him in February 2015, which ordered continued emergency

temporary supervised visitation and telephone contact pending conclusion of the

hearing on the petitions for modification.

      Unless a party can prove modification is required by a substantial and

material change in circumstances, and that the child’s best interest will be

promoted by such a modification, a trial court should not disturb the child custody

determinations made final by a judgment of dissolution of marriage. Wade v.

Hirschman, 903 So. 2d 928 (Fla. 2005). Generally, both parties must be given

notice and opportunity to be heard on the matter prior to any modification, unless

there is an actual, demonstrated emergency situation, “such as where a child is

threatened with physical harm or is about to be improperly removed from the

state.” Smith v. Crider, 932 So. 2d 393, 398 (Fla. 2d DCA 2006); see also



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Bronstein v. Bronstein, 167 So. 3d 462 (Fla. 3d DCA 2015); Gielchinsky v.

Gielchinsky, 662 So. 2d 732 (Fla. 4th DCA 1995). Even in such instances, “every

reasonable effort should be made to ensure both parties have an opportunity to be

heard.” Ashby v. Murray, 113 So. 3d 951, 954 (Fla. 5th DCA 2013); see also

Haddix v. Emret, 992 So. 2d 883, 886 (Fla. 2d DCA 2008) (“To conduct a proper

inquiry into these issues, both parties must generally be given the opportunity for a

full hearing where the parties and their witnesses are given an opportunity to

testify.”).

       Based on the foregoing authorities, we are compelled to find that the trial

court departed from the essential requirements of law by temporarily modifying

the child’s parenting plan without a full hearing in which the mother was permitted

to present her case. Accordingly, we quash the order under review and remand the

case to the trial court to promptly reconsider the issue of the mother’s supervised

visitation and conclude the evidentiary hearing on the parties’ petition for

modification forthwith.

       Petition granted; remanded with instructions.




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