Third District Court of Appeal
State of Florida
Opinion filed November 2, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1013
Lower Tribunal No. 03-34304
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Daneisis Lopez,
Appellant,
vs.
Carlos A. Perez,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Eugene J. Fierro, Senior Judge, Jorge Rodriguez-Chomat and Gill S.
Freeman, Judges.
Neil Morales (Naples), for appellant.
Bofill Law Group and Jose C. Bofill, for appellee.
Before WELLS, SHEPHERD and EMAS, JJ.
EMAS, J.
Daneisis Lopez appeals from three orders entered by the trial court: an order
granting Carlos Perez’s verified motion for temporary injunction to prevent
removal of the minor child; an order denying Daneisis Lopez’s verified motion to
dissolve the temporary injunction and for immediate return of the minor child; and
an “order appointing lawyer/guardian ad litem” for the minor child. We affirm in
part and reverse in part.
We find no abuse of discretion in the trial court’s entry of an emergency
injunction on an ex parte basis. We further find that the trial court properly
exercised its discretion, supported by competent substantial evidence,1 in its
subsequent order denying Lopez’s motion to dissolve the temporary injunction.
We find no denial of due process in the manner in which the trial court addressed
these motions and further conclude that the evidence supported Perez’s assertion
that the minor child had been psychiatrically hospitalized and was in need of
immediate mental health treatment, given the evidence that the minor child was
then a present danger to the child’s self or others.2
1 Contrary to the statement of facts set forth in Lopez’s brief, we must view the
facts below in a light most favorable to sustaining the determination of the trial
court. See Regan v. Regan, 660 So. 2d 1166, 1167 (Fla. 3d DCA 1995) (holding,
on appeal from order modifying shared parental responsibility, that appellate court
must review the entire record in a light most favorable to the prevailing party);
Moore v. Staalac, Inc., No. 2, 166 So. 2d 814, 815 (Fla. 3d DCA 1964) (holding
appellate court must consider the record in a light most favorable to appellee when
reviewing disputed issues of fact that have been resolved by the trier of fact).
2 Lopez makes much of the fact that, at the hearing on the motion to dissolve,
2
However, we reverse the third order, entitled “Order Appointing
Attorney/Guardian Ad Litem” for the minor child. It is true that the court has the
discretion, if it finds it is in the best interest of the child, to appoint a guardian ad
litem to act as next friend of the child. § 61.401, Fla. Stat. (2016). The court also
has the discretion to appoint legal counsel for a child to act as attorney or advocate.
Id. However, the statute expressly provides that “the guardian and the legal
counsel shall not be the same person.” Id. The order is unclear as to the appointed
person’s capacity, and Lopez correctly argues that one could reasonably read the
order as encompassing both capacities. The trial court erred in entering such an
order without designating whether the individual is appointed to act as guardian ad
litem or as attorney for the minor child, and delineating the powers and
responsibilities corresponding with such appointment. We therefore reverse that
order and remand this cause for further proceedings not inconsistent with this
opinion.
Affirmed in part, reversed in part, and remanded.
counsel for Perez referred to the minor child as having been “Baker Acted,” see
section 394.451, et seq., Fla. Stat. (2016), and asserts the trial court “relied” upon
this characterization as the basis for denying the motion to dissolve. We do not
agree. Read in context, this statement by counsel was a shorthand (if inartful)
reference to the evidence presented at the hearing that the minor child had been
hospitalized for several days (and was initially admitted to the psychiatric ward of
the hospital) following certain bizarre behavior, disturbing incidents and
indications that the minor child was a danger to the child’s self or others.
3