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Date: 07-10-2022
Case Style:
MELINDA D. HASSENPLUG vs BRIAN HASSENPLUG
Case Number: 21-2729
Judge:
Edward LaRose
Court:
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
On Appeal From The Circuit Court for Pasco County
Joshua Riba
Judge
Plaintiff's Attorney:
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Defendant's Attorney:
Lindsey M. French of George & French
Description:
Tampa., Florida - Divorce lawyer represented Appellant with appealing the final judgment dissolving her marriage.
After seven years of marriage, Former Wife petitioned to
dissolve the marriage. The parties have an eight-year-old daughter
diagnosed with autism.
A Marital Settlement Agreement resolved most of the parties'
legal issues. The trial court entered a partial final judgment and
scheduled a July 2020 final hearing to address "[t]he remaining
issues of child support, parental responsibility[,] and time-share
[sic]." Before the final hearing, the parties agreed upon child
support, shared parental responsibility, and equal time-sharing.
And so, the final hearing dealt with the outstanding issue of
the child's schooling. See D.M.J. v. A.J.T., 190 So. 3d 1129, 1132
(Fla. 2d DCA 2016) ("Where the final judgment reserves jurisdiction
to determine school enrollment and the parties are unable to agree
on the minor child's school, they are required to obtain a court
order on the issue. 'In such a circumstance, the court must resolve
the impasse by determining the best interests of the child.' " (first
citing and then quoting Dickson v. Dickson, 169 So. 3d 287, 289–90
4
(Fla. 5th DCA 2015))); e.g., Otto-Jones v. Jones, 69 So. 3d 986, 987
(Fla. 2d DCA 2011) (reversing an order requiring the parties' child to
spend half the school year in private school and half in public
school because "there was no evidence that this rotating school
schedule [wa]s in the best interest of the child"); Norris v. Norris,
926 So. 2d 485, 488 (Fla. 2d DCA 2006) (reversing an order
requiring placement of the parties' children in public school
because the record did not support the contention that the public
school was in the children's best interests).
Former Wife homeschooled the child since the child was four
years old. Former Wife requested that the trial court continue
home schooling for at least the next school year, after which she
proposed enrolling the child in "a private school that can
accommodate her . . . special . . . and unique needs." At the final
hearing, Former Wife observed that the new school year was
scheduled to start in a matter of weeks. Consequently, in Former
Wife's view, continued home schooling would be in the child's best
interests because it would provide the child with continuity and
stability.
5
Former Husband is a commercial pilot. Former Wife has a
credentialed and extensive background in the Pinellas County
School District as an administrator, teacher, and trainer.
By all accounts, the child flourished in her homeschool
setting. The Guardian ad Litem (GAL) described the child as
"learning at or above expectations for her cognitive functioning."
Former Wife and other witnesses extolled the benefits of keeping the
child's routine unchanged. They also recommended that the child's
educational setting allow for individualized attention and minimal
distractions.2
At the conclusion of the final hearing, the trial court praised
the parties for sharing time equally with the child and participating
in her upbringing. However, the trial court recognized that the
parties had communication problems. Seemingly, Former Wife
refused to share information openly and honestly, thereby impeding
fruitful co-parenting. The trial court reasoned that Former Wife's
2
Former Wife testified that several days a week the child
attended homeschooling cooperatives with other children outside of
the home. The trial court received evidence that the typical publicschool classroom might include up to two dozen other students; the
homeschooling cooperatives have, at most, fourteen other students
per classroom.
6
continued homeschooling would hamper Former Husband's ability
to participate fully in their child's education.
To "level the playing field" and allow Former Husband to share
an equal role in the child's education, the trial court ordered that
Former Husband's address be utilized for school designation
purposes.3
Specifically, the trial court stated as follows: "[F]or
school designation I will say that the school designation will be
Odessa because that's where the father is zoned for, and I have to
list a parent here, so I'm going to list the party as Mr. Hassenplug
. . . ."
3
The trial court extolled the "very good job" the GAL had done
in the case. In her testimony, the GAL described the "difficult and
strained" communication between the parties:
There are times when [Former Husband] wants to
have a discussion about something and get more
information, and [Former Wife] is very elusive or evasive
about it. . . . There is kind of a power struggle going on
here, and so if these parties are following a school
mandate, [Former Husband] knows when he can go to
the school, [Former Husband] knows how to participate
in the school, but he gets to participate independent of
[Former Wife]. . . . I just really think that the distress
would be lessened because the discord between these
parents would be substantially reduced if they were on a
level playing field instead of this power and control thing.
7
The trial court also ordered the child to attend Odessa
Elementary School for the 2021-2022 school year starting in August
("I'm saying that she's going to Odessa next year."), concluding that
the public school offered the necessary special needs education
programs. Unfortunately, those programs would not be put in place
until the school completed its evaluation, at least sixty days after
the child's enrollment.
The trial court apparently disregarded or minimized testimony
from several witnesses who explained the special education needs of
an autistic child; namely, that children with autism have a
heightened need for stability and a corresponding necessity for
reduced distractions, and an abrupt transition into a populated
public school would have a negative impact on the child's
educational, emotional, and mental welfare.
Analysis
"A trial court's decision regarding school designation is
reviewed for abuse of discretion." Johnson v. Johnson, 313 So. 3d
651, 655 (Fla. 4th DCA 2021) (citing Bruce v. Bruce, 243 So. 3d
461, 464 (Fla. 5th DCA 2018)). This standard of review affords the
trial court considerable leeway, because
8
[i]f reasonable men could differ as to the propriety of the
action taken by the trial court, then the action is not
unreasonable and there can be no finding of an abuse of
discretion. The discretionary ruling of the trial [court]
should be disturbed only when [its] decision fails to
satisfy this test of reasonableness.
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
This deferential standard of review still requires that a trial
court's decision be guided by what is in the child's best interests.
See § 61.13(2)(c), Fla. Stat. (2020) ("The court shall determine all
matters relating to parenting and time-sharing of each minor child
of the parties in accordance with the best interests of the
child . . . ."); (3) ("For purposes of establishing . . . parental
responsibility and creating . . . a parenting plan, . . . the best
interest of the child shall be the primary consideration."); e.g.,
Scaringe v. Herrick, 711 So. 2d 204, 205 (Fla. 2d DCA 1998) (Blue,
J., specially concurring) (emphasizing the importance of the trial
court's "fact-finding and decisional responsibilities" in determining
the best interests of the child); cf. Bainbridge v. Pratt, 68 So. 3d
310, 313 (Fla. 1st DCA 2011) ("Although there is no statutory
requirement that a trial court engage in a discussion as to each of
the [section 61.13(3)(a), Florida Statutes (2010),] factors, a
9
discussion of the relevant factors can be helpful in determining
whether the trial court's judgment is supported by competent,
substantial evidence.").
Indeed, the child's best interests are the polestar guiding the
trial court's decisions in these matters. Snyder v. Snyder, 685 So.
2d 1320, 1321 (Fla. 2d DCA 1996) (citing Burgess v. Burgess, 347
So. 2d 1078, 1079 (Fla. 1st DCA 1977)); e.g., Andrews v. Andrews,
624 So. 2d 391, 392 (Fla. 2d DCA 1993) ("Decisions affecting child
custody require a careful consideration of the best interests of the
child." (citing § 61.13, Fla. Stat. (1991))). And so, section
61.13(2)(b)3.b., Florida Statutes (2020), requiring that a parenting
plan contain a designation of residence for school registration,
"must [also] be made based on 'the best interests of the child.' "
Bruce, 243 So. 3d at 464 (quoting Schwieterman v. Schwieterman,
114 So. 3d 984, 987 (Fla. 5th DCA 2012)).
The trial court's examination of the best interests of the child
requires consideration of a nonexhaustive list of factors affecting
the child's welfare and interests. § 61.13(3). Although the trial
court need not address each factor independently, at a minimum, it
must find that its school designation is in the best interests of the
10
child. This finding must be stated on the record or contained in the
final judgment. Clark v. Clark, 825 So. 2d 1016, 1017 (Fla. 1st
DCA 2002). Although the final judgment recites such a finding, our
scouring of the record finds nary any support. We cannot discern
whether and why public schooling is in the child's best interests.
The child appears to be flourishing in her current
environment. However, the trial court's school designation seems
premised on diminishing the parties' discord which, the trial court
reasoned, would allow Former Husband to participate more fully in
the child's education. We are certain that the trial court sought to
tamp down the parties' apparent power struggle. This is a
praiseworthy goal. Yet, we search, without success, for how this
goal advances this young child's best interests.4
See § 61.13(3)
("Determination of the best interests of the child shall be made by
evaluating all of the factors affecting the welfare and interests of the
particular minor child and the circumstances of that family . . . .").
4
Nothing in our record indicates that Former Wife's behavior
toward Former Husband harmed the child or impeded the child's
developmental or educational progress.
11
The trial court's effort to broker peace and foster
communication between the parties does not inform us as to the
polestar consideration-the child's best interests. And the trial court
may not shirk its responsibility to the child in making this
determination. Cf. Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA
1992) ("It is undisputed, and should be indisputable, that a trial
court's responsibility to the child cannot be abdicated to any
parent, any expert. That heavy responsibility mandates that a
court is not bound by any agreement between parents, nor by the
opinions of any expert or group of experts."). On this record, we are
not convinced that the trial court adequately considered the child's
best interests in making its school designation decision.
Unfortunately, conflict between the parties is all too customary
in dissolution cases. The trial court, a stranger to the family, is
placed in the unenviable position of making potentially lifechanging decisions affecting the child. In the discharge of our duty,
however, we must ensure that the record reflects the trial court's
paramount decisional consideration, the child's best interests. See,
e.g., Bazan v. Gambone, 924 So. 2d 952, 957 (Fla. 3d DCA 2006)
("[O]ther than the tense relationship which exists between the
12
parents, there is nothing in the record, by allegation or evidence,
that would tend to establish that the child's best interests justify
changing custody. Paramount in this consideration are the best
interests of the child, rather than the best interests of any
particular parent or relative." (citations omitted)). The trial court's
ruling lacks the necessary evidentiary support sufficient to satisfy
our concerns that such a change is in the child's best interests.
Outcome: We reverse the portions of the final judgment concerning the
child's schooling and remand for further proceedings consistent
with this opinion. Again, we do not opine upon what educational
setting meets the child's best interests. In all other respects, we
affirm.
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Defendant's Experts:
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