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Main Forums => Dear Socrateaser => Topic started by: floridadad630 on Jul 12, 2004, 03:24:07 PM

Title: Brief
Post by: floridadad630 on Jul 12, 2004, 03:24:07 PM
Hey Soc,
For the reading pleasure of you and your readers..  I'm not asking you to critique or even read it since I've already submitted it--but I do find your comments very interesting.

I'm the pro se guy trying to appeal using substantive due process.  

I'm hoping someone can explain how judicial discretion overrules the 14th ammendment where the state must use the least restrictive means when depriving parents of their children.

I don't expect to win, just hoping I can get an answer.  I wish more people would ask this question, because thats what it all boils down to..the state messing with your fundamental rights in an arbitrary manner.  From what I've seen the abuse of discretion doesn't ever win.



Florida Dad
(Word 97 doesn't paste very well; How do you read this stuff day in and day out?)



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

5th DCA Case No.: 5D04-1545
L.T. Case No.: DR03-147

Florida Dad
   Appellant
v.
Selfish Mom
   Appellee   

____________________________________

INITIAL BRIEF OF APPELLANT
____________________________________

ON REVIEW FROM THE
SEVENTH JUDICIAL CIRCUIT, IN AND
FOR ST.JOHNS COUNTY, FLORIDA

____________________________________












Dad's name and address and phone

TABLE OF CONTENTS            page no.

TABLE OF CITATIONS……………………………………………………ii

PRELIMINARY STATEMENT……………………………….……………iv

STATEMENT OF TYPESETTING………………………………………....iv

JURISDICTIONAL STATEMENT………………………………………….v

STATEMENT OF CASE AND FACTS……………………………………..1

SUMMARY OF ARGUMENT………………………………………………10

ARGUMENT
I. Trial Court's application of the law in determining
custody impairs the Father's fundamental rights to parent
his child, in a manner that is not the least impinging means
possible under the circumstances………………………………………12

II.Trial Court ordered shared parental responsibility, but
provided no parenting plan or details of decision
making responsibility, which amounts to sole legal custody
to Mother……………………..………………………………………...20

III. Trial Court committed harmful error to the Appellant and abuse of discretion by admitting evidence (in substance) during the
final hearing which did not conform to the pre-trial stipulations
ordered by the Trial Court ……………………………………………..21

IV. Trial Court erred in computing monthly child support………………...22

V.Trial Court erred in computing retroactive child support……………...22

CONCLUSION……………………………………………………………….24

CERTIFICATE OF SERVICE………………………………………………..26

EXHIBITS
-i-
TABLE OF CITATIONS

Florida Supreme Court Cases:

   Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996)……………13, 14

   In Re Adoption of Baby E.A.W., 658 So. 2d 961, 966
   (Fla. 1995), rev. denied sub nom G.W.B. v. J.S.W.,
   116 S.Ct. 719 (1996)…………………………………………………...12
   
   Padgett v. Department of HRS, 577 So. 2d 565, 570
   (Fla. 1991)……………………………………………………………...12

   Richardson v.  Richardson, 766 So. 2d 1036 (Fla. 2000)……………14

   Winfield v. Division of Pari-Mutuel Wagering,
   477 So, 2d 544, 547, 548,  (Fla. 1985)……………………………..15, 16

Florida District Court of Appeal Cases:

   Ferger v. Ferger, No. 2D02-1265 (Fla. 2nd DCA
   July 23, 2003)…………………………………………………………..20

   Foster v. Sharpe, 114 So. 2d 373, 376 (Fla. 3d DCA
   1959)…………………………………………………………………...13

   Hammac v. Hammac, 29 Fla. L. Weekly D449
   (Fla. 1st DCA Feb. 20, 2004) (Wolf J. concurring)……………………25
 
   Knipe v. Knipe, 840 So. 2d 335 (Fla. 4th DCA
   2003)…………………………………………………………………...25

Florida Constitution:

   Article I, § 9 Due Process……………………………………………….v

   Article I, § 23 Right to privacy………………………………………...15

   Article V § 4 (b)(1)……………………………………………………...v
-ii-

Florida Statues:
   Fla. Stat. § 61.046(11)…………………………………………….…....20

   Fla. Stat. § 61.046(12)…………………………………………….……20

   Fla. Stat. § 61.13(2)(b)(2)……………………………………………...20

   Fla. Stat. §  61.30(6)……….…………………………………………...22
   
   Fla. Stat. §  61.30(17)(b)…..…………………………………………...23

United States Supreme Court:

   Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972)…………………….15

   Reno v. Flores, 507 U.S. 292, 30-302 (1993)…………………………15

   Santosky v. Kramer, 455 U.S. 745, 769 (1982)………………………12

   Washington v. Glucksberg, 521 U.S. 702, 719, 720 (1997)…………………………………………………………………..15


   














-iii-

PRELIMINARY STATEMENT
References to the record are prefaced by the letter "R" and are made to the page number assigned in the Index to Record on Appeal.
Appellant, Douglas Paul Matheny is referred to as "Appellant", "Mr. Matheny", or  "Father".  Appellee, Lisa Rachelle Briggs is referred to as "Appellee", "Ms. Briggs", or "Mother".  Ruby Rachelle Matheny is referred to as "Ruby", "Daughter" or "Child".

STATEMENT OF TYPESETTING
   This Initial Brief is typed with times new roman, 14 point font in Word 97 for windows format.









-iv-
JURISDICTIONAL STATEMENT
This Court has jurisdiction to review decisions of the Seventh Circuit Court of Florida.  Art. V. § 4 (b)(1).  The visitation issue raised by the Appellant should not be construed as a constitutional challenge of a law.  A constitutional challenge means a law is being challenged in court to see if it violates or is inconsistent with the Constitution of the United States of America.  No Florida law is being challenged in this case.  The visitation issue being argued by the Appellant, is that the trial court's application of the law intruded on the Appellant's right to privacy as a parent without showing a compelling interest in preventing demonstrable harm to the child.  Appellant had no way of knowing in advance that the trial court's final order would severely intrude on his right to privacy without providing substantive due process required by Article I, section 9 of the Florida Constitution..






-v-
STATEMENT OF THE CASE AND FACTS
Nature of the Case:
   This case involved a now two and 1/2 year old daughter born out of wedlock (R468: page 1, paragraph 1) who was the subject of paternity, and child support actions (R468: page 1, paragraph 1).  
Ms. Briggs and Mr. Matheny started dating in 1997.  Ruby Rachelle Matheny/child was born on December 3, 2001.  After the birth of the minor child Mr. Matheny moved into the home of the Ms. Briggs [R99: page 3, paragraph 3, 5th sentance].   Ms. Briggs took advantage of the Family Medical Leave Act for approximately three months [R632: page 132, lines 12- 21].  Mr. Matheny took off from work the majority (seventy percent of all working days in December 2001) of the first month to assist the mother and to care Ruby [R529, page 17 lines 1-5] [R632: page 14, lines 11-15].  After the Ms. Briggs leave of absence expired on March 3, 2002, Mr. Matheny was afforded the opportunity to work from home March until June 2002 in order to care for  Ruby [R529: page 17, lines 1-5] [R632: page 14 lines 24-25] [R124: page 9, lines 18-23].  


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In April 2002, Mr. Matheny later applied for the Family Medical Leave Act and stayed at home an additional 3 months to care for the minor child from June until September 2002 [R529 pages 17-18][R124: page 9, lines 18-23] [R632: pages 15-16] [R99: page 3, 3rd paragraph].  Mr. Matheny proposed to marry Ms. Briggs in April 2002 [R99: page 4, 1st paragraph].  After Mr. Matheny's return to work in September 2002, the minor child Ruby was cared for Shirley Hochman, the mother of  Mr. Matheny's friend Matthew Hochman[R99: page 4, 2nd paragraph] [R124: page 9, lines 24-25, ].  Ms. Briggs dropped Ruby off the at daycare each day while Mr. Matheny picked up the minor child from daycare each workday[R67].  
In December of 2002 Mr. Matheny and Ms. Briggs separated resulting in Mr. Matheny moving out of the home of Ms. Briggs.  Mr. Matheny continued to pick up the minor child from daycare each day afterwards but was required to return the child to the home of Ms. Briggs at 7:00pm.  
On February 6, 2003 Mr. Matheny filed a Petition to Determine Paternity and related relief in the Seventh Judicial Circuit of Florida.  In Appellant's petition, he request shared parental responsibility, child support and "basically equal time" with the child.  Afterwards the Ms. Briggs limited Mr. Matheny's access to the minor child for the majority of February 2003[R99].
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In March Mr. Matheny continued to pick up the minor child from daycare each day, altering his work schedule to get off work early to pick up the child [R99].
A hearing was scheduled before General Master Clyde E. Wolfe on August 8, 2003.  At the hearing on August 8, 2003 the Appellant/Petitioner requested to have the minor child overnight on Thursday and Friday night of each week in addition to alternate weekends [R529: page 13, lines 19-23].

Report of Findings and Recommendations of the General Master
The parties agreed that judgement should be entered adjudicating Appellant/Douglas Paul Matheny as the father of the minor child[R92, page 2, item 2].  The parties also agreed that the appointment of Dr. Sherry Risch, Ph.D. as the child custody evaluator. [R92: page 6]  In his report General Master Wolfe noted the Appellant's/Father's reasons for the visitation arrangements[R529: page 14-15][R92: pages 3-4]:
a. He does not want the minor child to feel that she was abandoned
by the Petitioner/Father.
b. A set arrangement would keep the parties from returning to court.

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c. His proposed arrangement would require both of the parties to spend significant quality time with the minor child and to share in the child rearing duties of the parents.
d. His proposed arrangement would for the parties to cooperate with respect to the minor child's needs.
General Master Wolfe then recommended visitation for the Appellant/Father to be alternate weekends from Friday afternoon through Sunday evening, and to pick up the minor child on Tuesdays and Thursdays returning the minor child to Appellee/Mother's home at 7:00pm [R92: page 5-6].  General Master Wolfe noted in his report that there was no evidence that rotating custody was in the best interest of the child, stating "Until a custody evaluation is completed and forwarded the Court for consideration, a more traditional visitation schedule is in order." [R92, page 4, paragraph 2]  General Master Wolfe also noted that "Despite the surface differences between the parties, there is much they have in agreement."[R92, page 3, paragraph 2]
Custody Evaluation and Recommendations
   A custody evaluation was performed by Dr. Sherry Risch and filed with the Court on September 26, 2003[R99].  Recommendation number three from the custody evaluation report was as follows[R99: page 14, items 3 ]:
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3. A reasonable visitation schedule for a child Ruby's age could include a couple of afternoons with one commencing in an overnight visit during the week with the father and every other weekend with the father.  However, on Ms. Briggs days to have Ruby instead of having other family members pick up Ruby from school when she has to work late, Mr. Matheny should be afforded the opportunity to pick Ruby up from daycare until Ms. Briggs is finished at work.  Having the parents equally involved with Ruby on a regular basis would afford her an opportunity to continue to develop a close bond with both parents.
The report also noted that:
"Mr. Matheny and Ms. Briggs participated in psychological testing.  There was no evidence of social maladjustment or emotional problems. They both have appropriate parenting knowledge and they both are capable of providing Ruby with a stable and nurturing environment.  All parties interviewed described both parents as equally loving and bonded to Ruby"[R99, page 13, 3rd paragraph].  She also noted the parents close proximity of the parties residences. [R124, page 15]


5
Deposition of the Child Custody Evaluator
In her deposition[R124] taken on December 9, 2003, Dr. Risch made the following statements:
a.   "The child was very comfortable with Mr. Matheny.  She was responsive to his instructions and playing on the computer." [R124: page 12, lines 22-24]  
b. "They played together.  There was no distress noted whatsoever." [R124: page13, lines 2-5]
Dr. Risch recommended the parents have equal time with the minor child saying "I feel like trying to give equal time between parents, given there schedule is the best way to go, but I think it also needs to be structured and flexible."[R124: page58, lines 10-13], [R124: page 41, lines 10-14], [R124: page 14, lines 1-7]  Dr. Risch stated the there was no evidence that Ruby was either disturbed or disrupted when she spent time with the Appellant/Father, and that it was all positive experiences for the minor child and in her best interest[R124, page 50, lines 1-10].  There was no evidence of any abuse by either party towards the other party.  [R124, page 27, lines 16-21]  Dr. Risch also recommended the father's weekend include Sunday nights.  [R124, page 50, lines 11-17]
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The Trial Court's ruling on visitation and shared parenting:
In its final order dated April 2, 2004 the Trial Court stated:
"Sherry Rische, PH.D., performed a custody evaluation and recommends primary residential responsibility with the mother and resonable and liberal visitation with the Father to include one overnight preceding the weekend he does not have the minor child and availability of the Father as a first refusal to pick up the minor child when he is available"[R468, page 1 2nd paragraph]  "The father wishes to have two overnights during the week, each week including the weekends he has with the minor child.  The Court does not find that in the best interest of the minor child nor does the custody evaluator recommend it." "[R468, page 1 2nd paragraph]
  The Trial Court awarded shared parental responsibility and the Father was awarded the following visitation:
(a) Every other weekend from Friday at 6:00pm until Sunday at 6:00pm. [R468, page 1, item a]
(b) Overnight on Wednesday preceding the Father's weekend. [R468, page 1, item b]


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(c) Summer vacation of one week until 2007, which will then increase to four weeks.  The Trial Court stated in its order, "The Father is reminded that this is his visitation schedule and not of his family."
[R468, page 2, item d]
(d) Holidays of the following:
(i) One day for Christmas and New Years Day every other year.
(ii) Father's day every year.
(iii) Thanksgiving in even years unless it precedes the Father's weekend.
[R468, page 2, item e and f]
(e) Father was also given first option to pick up child from daycare, returning child to the mother at 6:30pm, "not fed but he may give the child a snack." [R468, page 1, item c]

The Trial Court's ruling on child support:
The Trial Court ruled the Father's monthly net income to be $3,406.85 and the Mother's monthly net income to be $5,590.70 for a combined monthly net income of $8,997.55.  The Trial Court determined that the total child support under the guideline worksheet to be $1,798.00 and allocated the
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father's share at 37.86% or $680.72 per month.  Father's share of daycare was determined to be $122.09 for a total monthly obligation of $802.81 ($680.72+$122.09). [R468, page 3, paragraph 1]
   
Since the Father was acknowledged to have paid one half of the daycare since the time of the initial filing, retroactive child support was calculated at $680.72 times 12 or $8,186.64.  Father was given the option to pay a lump sum within 90 days of the order or to increase the monthly obligation by $100 until the balance of the lump sum was paid off. [R468, page 3, item 3]
Motion for Rehearing
   Appellant/Father filed a timely Motion for Rehearing stating based on the visitation awarded and the miscalculated support [R472].
Response to Motion for Rehearing
   Appellee/Mother filed a Response to Motion for Rehearing asking to deny rehearing visitation issue, but agreeing with the Father on miscalculated child support. [R480, page 1] [R483, page 1, item 1]   The Trial Court denied the motion for rehearing on April 26, 2004. [R490]


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SUMMARY OF THE ARGUMENT
Visitation
   The trial court should have implemented a visitation schedule that was the least restrictive on the Appellant's fundamental rights as a parent, but also still within the best interest of the child.  Based on the evidence in the record, this schedule could had been:
(1) One overnight with the father each week between Monday and Thursday.
(2) On alternate weekends Friday through Monday morning.
(3) Three day weekends, and a holiday schedule, similar to the Minimum Visitation contained in the Fourth Judicial Guidelines.
(4) First right of refusal and first option to pick up the minor child from
daycare and return to her mother's home each workday (This was granted in the final order).
Shared Parental Responsibility
   The trial court provided no parenting plan requiring affirmative action to the Father in the final order.  This amounts to sole legal custody to the mother.  The trial court should have clarified the parenting arrangements in accordance with statutory terms.

10
Evidence admitted during the final hearing, which did not meet trial court's ordered pretrial stipulations amounts to an abuse of discretion
   The trial court allowed Appellee's council to read into the record evidence at the final hearing which was against it’s Ordered Setting Pre-trial Stipulations.  This was "harmful error" done to the Appellant.
Miscalculation of Monthly Child Support
   The trial court incorrectly calculated the father's total monthly obligation to be $802.81, when the correct amount is $640.01.
Miscalculation of Retroactive Child Support
The trial court made two errors in calculating retroactive child support due:   (1) The application of an incorrect monthly child support retroactively.  
The incorrect monthly amount of $670.72 was applied times 12 or
$8,048.64.  The correct amount should have been $517.92 times 12 or
$6,215.04.
(2) The trial court failed to consider that the father paid one half (50 percent) of all daycare expenses, when he was obliged to pay only 28.4 percent. Father should have been credited for total of the excess monthly daycare payments which equals 21.6 percent of each daycare payment made by Appellant on behalf of the minor child.
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ARGUEMENT
Visitation
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment of the United States Constitution. See Santosky v. Kramer, 455 U.S. 745, 769 (1982).  Like the United States Supreme Court, the Florida Supreme Court has also recognized that substantive due process protection must be given to parents pursuant to the fundamental liberty interest that parents have in the care, custody, and management of their children.   See In re Adoption of Baby E.A.W., 658 So. 2d 961, 966 (Fla. 1995), cert. denied sub nom G.W.B. v. J.S.W., 116 S.Ct. 719 (1996);  Padgett v. Department of HRS, 577 So. 2d 565, 570 (Fla. 1991) (affirming the "longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism").
As a Florida Supreme Court justice noted:
The right of the parents to the custody, care and upbringing of their children is one of the most basic rights of our civilization. The emphasis upon the importance of the home unit in which children are brought up

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 by their natural parents is one of the great humanizations of western
 civilization as contrasted with the ideologies of some nations where family life is not accorded primary consideration.
In re EAW, 658 So. 2d at 983 (Anstead, J., dissenting) (citations omitted); see also Foster v. Sharpe, 114 So. 2d 373, 376 (Fla. 3d DCA 1959) (determining that the right to raise one's child is one of the most fundamental rights held by a parent and thus it must be protected).
The following year, while addressing a grandparents' rights statute, the court noted that:
The extent to which the government should be involved in settling disputes within the family is a relatively new question in the law. There are, though, certain established principles. We have stated that "this Court and others have recognized a longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism." The fundamental liberty interest in parenting is protected by both the Florida and federal constitutions. In Florida, it is specifically protected by our privacy provision.
See Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996).
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   A number of statutory provisions for grandparents rights have been held unconstitutional because they intrude on a parent's right to privacy without showing a compelling interest in preventing demonstrable harm to the child.  See Richardson v. Richardson, 766 So. 2d 1036.  In ruling that section 61.13(7) was unconstitutional, the Richardson court stated:
Under our prior holdings, including Von Eiff and Beagle, it is apparent that section 61.13(7) unconstitutionally violates a natural parent's fundamental right to raise his or her child absent a compelling state justification.  In Von Eiff and Beagle the statute in question was limited to visitation rights to grandparents, while section 61.13(7) grants custody rights.  In Von Eiff, we explained that Florida's Constitution guarantees a right to privacy and that such a right includes a parent's fundamental right to rear his or her child free from government intrusion and control.  See 720 So. 2d at 513.  We explained further that "the state can satisfy the compelling state interest standard [only] when it acts to prevent demonstrable harm to a child."  
Id at 515 (quoting Beagle, 678 So. 2d at 1276).


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   When an activity is constitutionally protected, as is the fundamental right to parent, a state must chose the least restrictive means possible to achieve its goal.  See Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972) "If there are other reasonable ways to achieve those goals with a lesser burden on a constitutionally activity, a State may no chose the way of greater interference.  If it acts at all, it must choose 'less drastic means.'"  The U.S. Supreme Court also stated that substantive due process  "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 720 (1997); see also  Reno v. Flores, 507 U.S. 292, 301302 (1993).
Thus, under both the U.S. Constitution and the Florida Constitution, this court should recognize that both parents have a fundamental right to parent their child.  The Florida Constitution under Article I, § 23 declares that "[e]very natural person has the right to be let alone and free from government intrusion into the persons private life".  As interpreted by the Supreme Court of Florida in Winfield v. Division of Pari-Mutuel Wagering, this enumerated right is fundamental and was intended to be much broader than any privacy right guaranteed by the United States Constitution. Winfield v. Division of Pari-Mutuel Wagering at 544 and 548 So, 2d 544 (Fla. 1985).
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Since the right to parent is deemed to be fundamental protected by due process, this court should use the strict scrutiny standard of review. Winfield, 477 So. 2d at 547.  The government will have the burden to show that its infringement serves a 'compelling state interest' and there was no lesser restrictive means that could have been implemented which was still within the best interest of the child
   The Record clearly shows the Appellant has demonstrated a full commitment to the responsibilities of parenthood by coming by coming forward to participate in raising his child.  The trial court had available 'less drastic means', which would be less restrictive on the Appellant's rights as a parent and still within the best interest of the child in question, than the final judgment provided.
(1) Weekly visitation.
Dr. Risch's recommendations were that the Father's visitation should include one weeknight, and every other weekend from Friday afternoon to Monday Morning.
Dr. Risch was appointed by the Court when it adopted the recommendations of General Master Clyde Wolfe [R98], who commented he has "had good experience with in the past." [R529: page 6, lines 7-10].  
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Dr. Risch was accepted by the Court as an expert in the field of psychology.  As the trial court stated:  "Dr. Risch is well familiar with the court ---and she'll be accepted as an expert in the field of psychology." [R632: page 38 line 4-8].  The court wanted to appoint Dr. Risch as a parenting coordinator [R632: page 58 line 16-20].  At the hearing, Dr. Risch recommended one weeknight each week [R632: page 49 line 10] [R632: page 73 line 1-12] and the Father's weekend to include Sunday night [R632: page 58 line 2-7].  Dr. Risch also attested to the close proximity of the parties. [R632: page 82 line 9].  Dr. Risch repeatedly attested to the very close relationship between the Appellant and the minor child [R632: page 43 line 2-3].  Dr.Risch repeatedly stated that equal time between the two parties was in the best interest of the child[R632: page 47 line 2-7] [R632: page 45 line 7-12].
   Based on the facts and circumstances of this case as reflected in the record, the trial court did not provide a compelling reason to give the Appellant even less time than the court appointed custody evaluator recommended.  At a minimum the Appellant should have been awarded the bi-weekly visitation schedule as recommended by Dr. Risch an expert appointed by the court.   Appellant sought 6 of every 14 overnights, Dr. Risch recommended 5 of every 14 overnights, and the trial court awarded 3 of every 14 overnights.  
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Appellant was awarded 40% less overnights that the recommended by the court appointed expert.  The trial court infringed substantially on the Appellant's right to privacy under substantive due process when it restricted the Appellant's custody below the recommendation of the expert witness Dr. Risch.  
(2)  Holiday visitation.
Appellant was awarded one to three holidays per year.  For example in 2004, Appellant gets only one awarded holiday with the minor child--Father's day.  Thanksgiving  precedes Appellant's weekend this year. Appellant was basically awarded one holiday out of thirty potential holidays in 2004.  This is clearly unreasonable and a violation of Appellant's rights as a parent.  Dr. Risch recommended holidays and summer vacation should be shared equally [R632: page 86 line 9-13].  Duval County where both parties are employed in part of the Fourth Judicial Circuit, which provides the following holidays in its Minimum Visitation Guidelines for non-custodial parents:
(a) Three day weekends if the holiday falls on non-custodial parent's weekend(Memorial Day, Labor Day, President's Day, )
(b) One week for Spring break in alternate years.
(c) Easter, Independence Day, Thanksgiving, Child's Birthday in alternate years.
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(d) One week for Christmas each year (preceding Christmas in one year, and after Christmas to New Years in the next).
[See Exhibit A, page 2].
Appellant was awarded 3 holdays per year in St. Johns County, where in Duval County twenty-four holidays are awarded in Minimum Visitation Guidelines. Again, the trial court infringed substantially on the Appellant's privacy rights without showing demonstrable harm to the child.












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Shared Parental Responsibility
   Under section 61.13(2)(b)(2), a trial court is required to order shared parental responsibility unless it finds that such and arrangement would be detrimental to the child.  In paragraph three of the final judgment the trial court ordered primary residential responsibility to the Mother and shared parental responsibility.  The trial court provided no parenting plan requiring affirmative action to the Father.  This finding suggest that the court ordered "sole parental responsibility" to the Mother, which is defined under section 61.046(12) as a court ordered relationship in which one parent makes decisions regarding the minor child, rather than "shared parental responsibility" wherein "both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly", as defined in section 61.046(11).  Based on Feger v. Feger,  this issue should be remanded to the trial court to clarify the parenting arrangements in accordance with statutory terms.  See Ferger v. Ferger, No. 2D02-1265 (Fla. 2nd DCA July 23, 2003).




20
Evidence admitted during the final hearing which did not meet trial court's pretrial stipulations amounts to an abuse of discretion
During the final hearing the trial court allowed the Appellee's counsel to submit into evidence, in substance, a performance review from the Father's employer which was not listed on the pretrial stipulations.  This performance review was dated 05/06/2002 and recommended the Appellant take conflict problem management training.  This occurred while the Appellant was on cross-examination and trial court allowed Appellee's counsel to require the Appellant to read excerpts  from it. [R632, pages 111 to 113]
The Appellant's counsel objected in a timely fashion.  Although this evidence was not submitted in to the court in form, it was in substance by requiring the Appellant to read it and answer questions from it.  If Appellant had known based on the pre-trial stipulations that this would be presented at the hearing, he could have adequately prepared in advance by submitting all of his performance reviews to the trial court and having a prepared response for the quarterly review in question.  In substance the trial court allowed evidence into the record which was not mentioned on the pre-trial stipulations. [R91]


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Miscalculation of Monthly Child Support
   The combined net income as found by the trial court was $8,997.55, with the Father's share being 37.86% and the Mother's share being 62.14%.  Child support for one child under statute 61.30 with a combined monthly net income between $8,950 and $9,000 is $1,368.  The trial court erroneously concluded this amount to be $1,798.  
Under section 61.30 (6) the Father's share of this monthly child support obligation should be $1,368 times 37.86% or $517.92 and not $680.72 that was the amount determined by the trial court. [R472, See Exhibits B and C]  The Father's monthly share of daycare expenses was determined to be $122.09 to which the Appellant concedes is correct.  The Father's total monthly obligation should be $517.92 (child support) plus $122.09 (daycare) for a total of $640.01 and not $802.81 ($680.72 + $122.09) as awarded by the trial court.

Miscalculation of Retroactive Child Support
   It was conceded by Appellee/Mother and the trial court that Appellant had paid one half of all daycare payments since the separation of the two parties. The trial court stated in its order 3.  "The court awards retroactive child support for 12 months from the time of filing the petition times current child
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support, without daycare, of $680.72 for a total of $8,186.64 retroactive support owed." [R468: page 3, item 3] The trial court made two errors in calculating retroactive child support:
   (1) Applying incorrect monthly child support retroactively.   The incorrect monthly amount of $670.72 was applied times 12 or $8,048.64.  The correct amount should have been $517.92 times 12 or $6,215.04.
(2) The trial court failed to consider that the father paid one half (50%)
of all daycare expenses, when he was only obliged to pay for twenty-eight percent (75% times 37.86%  equals 28.395%).  Florida statute 61.30 (17) (b) states the court shall consider "All actual payments made by the non-custodial parent to the custodial parent or the child or third parties for the benefit of the child throughout the proposed retroactive period."  Father should have been credited for total of the excess monthly daycare payments which equals 21.6 percent (50% - 28.395% = 21.605%) of each daycare payment made by Appellant on behalf of the minor child.  Based on the attached schedule of child care payments the Appellant estimates this amount to be $1,149.12.[See Exhibit D].


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CONCLUSION
Appellant seeks the following relief:
(1) The Appellant prays that the Appellant Court make a determination itself of the Appellant's visitation schedule that is the least restrictive on Appellant's fundamental rights as a parent, but still within the best interest of the minor child.  This schedule would be consistent would be the visitation schedule recommended by Dr. Risch, the court appointed child custody evaluator and expert in psychology.  
(a) Bi-weekly visitation to the father to include
(i) One night each week, and Friday through Monday mornings on alternate weekends.
(ii) First right to pick up child from daycare and return to Mother at
      7:00pm.
(b) Holiday Visitation to consist of the following:
(i)      Three day weekends if the holiday falls on non-custodial parent's    weekend(Martin Luther King Day, Memorial Day, Labor Day, President's Day, )
(ii) One week for Spring break in alternate years.

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(iii) Easter, Independence Day, Halloween, Thanksgiving, Child's Birthday in alternate years.
(iv)    Father's Day and the Father's Birthday every year.
(iv) One week for Christmas each year (preceding Christmas in one year, and after Christmas to New Years in the next).
It is not in the best interest of children or their parents to have constant protracted litigation concerning child custody or primary residency.  See Hammac v. Hammac, 29 Fla. L. Weekly D449 (Fla. 1st DCA Feb. 20, 2004) (Wolf J. concurring).  Knipe v. Knipe, 840 So. 2d 335 (Fla. 4th DCA 2003).

(2) Reverse and remand to the trial court the issue of shared parental responsibility, requiring the trial court to clarify the parenting arrangement in accordance with statutory terms.
(3) Reverse and remand to the trial court the issue of child support and retroactive support.
(4) Remand to the trial court with instructions that the Appellant be awarded a credit for amounts overpaid due to trial court error with regards to monthly and retroactive child support.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to xxx by U.S. Mail this _____ of July, 2004.

                     _________________________
                     A Florida Dad























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Title: Impressive...
Post by: socrateaser on Jul 12, 2004, 04:36:47 PM
The ultimate purpose of an appellate brief is to convince the reader that the appellant is entitled to the relief requested, because the lower court did not correctly interpret and/or apply the law, the lower court abused its discretion, by acting in a manner that is unreasonable given the record of evidence, or the lower court acted wholely beyond the scope of its lawful authority (this last reason is almost never actually found by an appellate court, because it allows the lower judge(s) to be sued for  civil rights violation, but I include it for the sake of completeness).

In short, I am convinced by your argument, that you were given an rather raw deal by the family court. Because an appellate court will not reach a constitutional challenge, if it can resolve a case upon lesser grounds, I believe that, assuming that you convince the appellate court, that the court will find an abuse of discretion, that is, that the trial court's ruling does not reasonably arise from the facts in the record, and instead, appear to evince the judge's personal prejudice in favor of a "TRADITIONAL" child custody and parenting arrangement.

If you wrote this brief yourself, then do not pass go, go directly to law school, because you are a natural.