Bronstein v. Bronstein

Third District Court of Appeal
State of Florida

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

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No. 3D15-877
Lower Tribunal No. 12-13285
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Elizabeth Bronstein,
Petitioner,

vs.

Tal Bronstein,
Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Scott M.
Bernstein, Judge.

Rosenthal Rosenthal Rasco Kaplan, LLC, Liliana Loebl and Daniel Kaplan,
for petitioner.

Daniels Kashtan and Lorne E. Berkeley, for respondent.

Before WELLS, ROTHENBERG and EMAS, JJ.

EMAS, J.
Elizabeth Bronstein (“Former Wife”) filed this petition for writ of certiorari1

to review the trial court’s Order on Petitioner/Former Husband’s Motion to Vacate

Final Judgment Denying Former Husband’s Supplemental Petition for

Modification of Timesharing Plan Based Upon Former Wife’s Fraud Perpetrated

on the Court and Request to Stay all Pending Motions by the Former Wife (the

“Order”), dated April 9, 2015. The Order effectively modifies the parties’

parenting plan by ordering that the six-year old minor child (“Child”) reside with

his father, Tal Bronstein (“Former Husband”), in Colorado until the court holds an

evidentiary hearing on the matter on August 7, 2015– a period of nearly four

months. The Order effectively deprives Former Wife of all contact and

meaningful timesharing with Child during this time period. The Former Wife

contends that the Order, entered on an unverified motion that did not seek

emergency relief or modification of timesharing, rendered without any factual

findings, and without the taking of any evidence or testimony, constitutes a

departure from the essential requirements of law. For the reasons that follow, we

grant the writ of certiorari and quash the Order below.

After several years of marriage, the parties separated and the trial court

entered a Final Judgment of Dissolution of Marriage on September 25, 2012,

which approved and ratified the parties’ Marital Settlement Agreement dated

1This Court has jurisdiction to issue a Writ of Certiorari under Rule 9.030(b)(2)
and Rule 9.100 of the Florida Rules of Appellate Procedure.

2
March 24, 2012. By the time the Final Judgment was entered, Former Husband had

already relocated from Miami to Aurora, Colorado. In March of 2014, Former

Husband filed a Petition for Modification of Timesharing/Parenting Plan alleging

that a substantial change of circumstances had occurred since the entry of the Final

Judgment. After hearing evidence for four days, the trial court denied that petition

in its Final Judgment Denying Modification due to the lack of any substantial

change in circumstances. Former Husband neither appealed that order, nor filed a

motion for rehearing. Instead, on April 2, 2015, Former Husband filed an

unverified Motion to Vacate Final Judgment Denying Former Husband’s

Supplemental Petition for Modification of Timesharing Plan Based Upon Former

Wife’s Fraud Perpetrated on the Court and Request to Stay all Pending Motions by

the Former Wife (the “Motion”).

In his Motion, Former Husband contends that after the hearing on his prior

petition for modification he hired a private investigator (“Investigator”) to follow

Former Wife. Former Husband alleges that the Investigator found Former Wife

spending time with an old boyfriend who she had previously testified she was no

longer seeing. Former Husband attached a report from the Investigator to the

Motion. The report contained photographs allegedly depicting the Former Wife’s

ex-boyfriend sitting on Former Wife’s balcony, lighting a pipe, and smoking from

it. There is no way to ascertain what is contained in the pipe. Neither Child nor

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Former Wife are in any of the pictures, there are no allegations that Child was

home at the time the photographs were taken, and there are no allegations in the

Motion that Former Wife was using drugs. The Motion was not verified and it

contained no affidavit from the Investigator. Nonetheless, Former Husband relied

on this report as the primary basis for his claim that there was newly discovered

evidence and a fraud on the court warranting both a vacatur of the Final Judgment

Denying Modification and a stay of Former Wife’s pending, unrelated motions

until the lower court could rule on the Motion. Significantly, Former Husband did

not seek emergency relief in his Motion.

On April 7, 2015, only five days after Former Husband filed the Motion, the

trial court, sua sponte, deemed this matter an emergency and scheduled a hearing

on the motion for April 9, 2015. Former Husband appeared at the hearing by

telephone, and Former Wife and her counsel were present. During the hearing, the

court took no testimony from witnesses, received no evidence, and deferred ruling

on the merits of the Motion. Nevertheless the court ordered, over Former Wife’s

counsel’s objection, that Child would remain in Colorado (where he was visiting

Former Husband) until such time that the court could hold an evidentiary hearing.

The court reduced its oral pronouncement to writing on April 9, 2015, and its order

contained no factual findings.

4
The evidentiary hearing was scheduled for July 29, 2015 and later reset to

August 7, 2015. Thus, four months were to pass between the time Child was

ordered to temporarily remain in Colorado with Former Husband and the date of

the evidentiary hearing. The Order therefore was tantamount to a temporary

modification of the timesharing arrangement as established by the parties’

parenting plan.

To obtain a writ of certiorari, there must exist: (1) a departure from the

essential requirements of the law; (2) resulting in material injury; (3) that cannot be

corrected on postjudgment appeal. Reeves v. Fleetwood Homes of Fla., Inc., 889

So. 2d 812, 822 (Fla. 2004). Although Former Wife was given notice of (and

attended) the hearing in this matter, the Former Husband’s motion did not seek a

modification of the timesharing arrangement, and Former Wife was thus not on

notice that such relief was within the scope of the motion or the hearing.

Further, it is undisputed that: the motion was unverified; the motion did not

seek emergency relief; and the trial court did not take any testimony or rely upon

any sworn evidence. There was nothing provided by Former Husband to establish

a true emergency or to suggest that Child was being threatened with physical harm

or about to be improperly removed from the State of Florida.2 There was nothing

presented even to establish the existence of a substantial change of circumstances

2 See, e.g., Smith v. Crider, 932 So. 2d 393 (Fla. 2d DCA 2006).

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such that Child’s temporary relocation to Colorado pending the evidentiary hearing

was warranted and in Child’s best interest.3 The court’s Order, which contained

no factual findings, was based solely on argument from counsel and the unverified

allegations in Former Husband’s Motion.4 In rendering its emergency Order upon

this basis, and scheduling the evidentiary hearing some four months later,5 the

court departed from the essential requirements of the law, causing irreparable harm

that cannot be remedied on post-judgment appeal.

We therefore grant the petition, issue the writ and quash the Order below,

with instructions that minor Child be returned to Former Wife’s care pursuant to

the terms of the marital settlement agreement and parenting plan, and for further

proceedings consistent with this opinion.

3 See Wilson v. Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996)(observing that
“to prevail on a request for temporary modification of custody, the moving party
must meet the burden of proving that (1) a substantial change in the condition of
one or both of the parties has occurred, and (2) the best interests of the child will
be promoted by the change”).
4 There is no dispute that the modification effectuated by this Order requires an

evidentiary hearing, and Former Wife objected to the court’s entry of the Order in
the absence of any testimony or other sworn proof.
5 See Shaw v. Shaw, 696 So. 2d 391 (Fla. 4th DCA 1997).