NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
NEHA PATEL, )
)
Appellant, )
)
v. ) Case No. 2D16-4488
)
RASESH PATEL )
)
Appellee. )
)
Opinion filed September 15, 2017.
Appeal from the Circuit Court for Polk
County; William Sites, Judge.
William J. Lobb and Howardene Garrett of
Law Office of William J. Lobb, Bartow, for
Appellant.
Jean Marie Henne of Jean M. Henne,
P.A., Winter Haven, for Appellee.
BLACK, Judge.
We affirm the order on modification of final judgment of dissolution of
marriage, which denies Neha Patel's motion to modify the final judgment as it relates to
timesharing. Competent substantial evidence supports the trial court's finding that Ms.
Patel met her burden of establishing a substantial, material, and unanticipated change
in circumstances since the entry of the final judgment of dissolution of marriage. See
Wade v. Hirschman, 903 So. 2d 928, 934 (Fla. 2005) ("A decree for purposes of the
substantial change test includes both a decree that has incorporated a stipulated
agreement concerning child custody and a decree awarding custody after an
adversarial hearing."). And we find no error in the court's determination that
modification was not in the child's best interests at the time of the evidentiary hearing.
However, we remand with directions that the trial court strike the language
of paragraph eleven following its finding that it is not in the minor child's best interests to
modify the current timesharing and parental responsibility "at this time."1 The trial court
may neither determine the child's best interests prospectively, see Eisele v. Eisele, 91
So. 3d 873, 874-75 (Fla. 2d DCA 2012), nor delegate its statutory duties to a parent or
expert, Grigsby v. Grigsby, 39 So. 3d 453, 457 (Fla. 2d DCA 2010). Future motions to
modify the final judgment with regard to timesharing are governed by the statutory
requirements to establish a "substantial, material, and unanticipated change in
circumstances" since entry of the final judgment—which has been met in this case—and
that "modification is in the best interests of the child." See § 61.13(3), Fla. Stat. (2016);
see also Howell v. Howell, 207 So. 2d 507, 511-12 (Fla. 2d DCA 1968) (discussing the
law of the case doctrine).
Affirmed; remanded with instructions.
SILBERMAN and CRENSHAW, JJ., concur.
1
We note that the modification order contains two paragraphs numbered
eleven. Our direction on remand is specific to the second paragraph eleven.
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