       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            DANA CAPPOLA,
                              Appellant,

                                     v.

                             PAUL CAPPOLA,
                                Appellee.

                              No. 4D18-2812

                            [August 28, 2019]

  Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Tarlika Navarro, Judge; L.T. Case No.
FMCE 07-15072 (38) (90).

   Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for appellant.

   Paul Cappola, Oldsmar, pro se.

PER CURIAM.

   Dana Cappola (“former wife”) and her former husband entered into a
private agreement whereby their minor child, A.C., was to return to live
with the former husband in Pasco County. Subsequently, she filed a
“Motion For Status Quo Order Pending The Determination Of The
Modification Proceedings” (“motion for status quo”) to have the child
continue residing with her in Broward County until final modification
proceedings concluded. Her motion was denied and she now appeals.
We find that the trial court abused its discretion in ruling that it was
bound by the parties’ private agreement without considering the child’s
best interest.

    The trial court conducted an evidentiary hearing on the former wife’s
motion to maintain the status quo. At the conclusion of the hearing, the
trial court orally pronounced that it would deny the former wife’s motion:

      I am going to uphold the agreement . . . of Judge Horowitz . . .
      and the agreement of the parties, which states that all the
      minor children are to reside with the father. I am going rule
      [sic] that [A.C.] be returned to father within forty-eight
      hours, according -- pursuant to Judge Horowitz’s order, and
      pursuant to the agreement which specifically states that this
      does not constitute a permanent nor a significant change of
      circumstances or a basis for a modification of the existing
      and prevailing modification order and timesharing order.

      It makes it very clear that both the mother and the father
      made an agreement that this child was to only reside with
      the mother for a temporary time period and was going to
      terminate on June 30th, 2018. And whether it was for some
      ulterior motive that this court is unaware of, it was agreed to
      by both parties.

      And I find it [sic] that Judge Horowitz’s order is to stand and
      that the agreement made between the parties is to stand, and
      that the appropriate means to get this child back to Broward
      County would be a modification, that this is not the
      appropriate way to get a modification.

(Emphases added). The trial judge noted that it was the court’s “job to
uphold contracts and uphold the law.” When the former wife indicated
that she had a pending motion to set aside the agreement, the court
responded that the motion was moot.

   Following protests by the former wife, the court stated,
“[u]nfortunately, I have to uphold the law. This is a contract that you
signed, ma’am.” The former wife responded, “I understand, but in the
beginning of the hearing you said you were going to go with what’s in the
best interest of [A.C.].” The court replied, “[y]ou had the – you agreed
and signed this with Mr. Cappola. You agreed to this.” The court also
stated that it “[had] to go by what Judge Horowitz ordered and what [the
former wife] signed with [the former husband].” (Emphasis added).

   After the hearing the court entered an order denying the former wife’s
motion. In its written order, the court noted that “it reviewed [the]
agreement, along with the testimony and credibility of both the Mother
and the Father as it pertains to the agreement and found that said
agreement was in the best interest of the minor child, A.C.” The order
further stated that the court “considered the relevant factors in [section
61.13(3), Florida Statutes (2018)] and the evidence and testimony
applying a ‘best interest’ standard as to the minor child, A.C.”




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   “A trial court’s ruling on a timesharing issue of a child is reviewed for
an abuse of discretion.” Lewis v. Juliano, 242 So. 3d 1146, 1148 (Fla.
4th DCA 2018).

    On appeal, the former wife argues the trial court’s oral
pronouncement, which controls over the written order, reveals that the
trial court ruled based on its finding that it was bound by the parties’
private agreement, and not based on the best interests of A.C.

   In response, the former husband maintains that the “best interests of
the child” was not the proper standard and that the trial court could only
change the timesharing agreement—without modification proceedings—if
an emergency was present.

   Here, the record reflects that in making its oral pronouncement, the
court repeatedly stated it was bound by the parties’ private agreement
regarding placement of A.C. Notably absent from the court’s oral
pronouncement, however, is any finding that enforcing the parties’
private agreement was in the best interests of A.C., although this
language is included in the written order.

   This court has held that “[a] trial court’s oral pronouncement must
control over a later written order,” and that the subsequent order must
accurately reflect the record. See Glick v. Glick, 874 So. 2d 1238, 1241
(Fla. 4th DCA 2004); see also Cajuste v. Herlitschek, 204 So. 3d 80, 83
(Fla. 4th DCA 2016) (determining that when a conflict exists between the
court’s oral pronouncement and its written order, the oral
pronouncement controls).

  Accordingly, the trial court’s oral pronouncement, determining that it
was bound by the parties’ agreement, controls over its written order,
which stated that the agreement was in the best interests of A.C.

    A trial court “is not bound by an agreement of parents regarding child
support, custody, or visitation.” See Puglisi v. Puglisi, 135 So. 3d 1146,
1148 (Fla. 5th DCA 2014) (citations omitted). Rather, the “best interests”
of the child supersede “any agreement between the parents and must be
independently determined by the trial court.” Id.; see also Dorsett v.
Dorsett, 902 So. 2d 947, 951 (Fla. 4th DCA 2005) (explaining that it is
“incumbent upon the trial court to ensure that any purported agreement
or arrangement between a child’s parents does not shortchange the
child’s interests,” and such a “heavy responsibility mandates that a court
is not bound by any agreement between parents”) (citations omitted)).


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    Moreover, a trial court may extend temporary custody pending
resolution of a petition for modification without an emergency being
present. See Naidu v. Naidu, 854 So. 2d 705, 707 (Fla. 3d DCA 2003)
(affirming trial court’s order temporarily maintaining the status quo
because courts “generally try to cause the least amount of disruption in a
child’s life”).

   Here, there was evidence suggesting that A.C. was doing well in school
in Broward County. The Guardian ad Litem recommended that A.C. stay
in Broward County, and the trial court acknowledged that A.C. appeared
to be “prospering” in Broward County while recognizing the need to avoid
“uprooting” her. Nevertheless, the trial court orally determined that it
was simply bound by the parties’ private agreement and ordered that
A.C. return to Pasco County within 48 hours, instead of making an
independent determination of what was in the best interests of A.C.

   In sum, we conclude that the trial court abused its discretion in
determining that it was bound by the parties’ private agreement, without
considering the best interests of the child. Further, the trial court’s
language in its written order stating that it did consider A.C.’s best
interests does not negate the court’s oral pronouncement expressly
stating its decision was controlled by the agreement. We reverse and
remand for further proceedings consistent with this opinion.

   Reversed and remanded with instructions.

MAY, FORST and KLINGENSMITH, JJ., concur.

                           *        *         *

   Not final until disposition of timely filed motion for rehearing.




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