Third District Court of Appeal
State of Florida
Opinion filed October 31, 2018.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D18-1420 & 3D18-1457
Lower Tribunal No. 16-29168
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Jade Nicole Ryan,
Appellant/Petitioner,
vs.
Thomas Ryan,
Appellee/Respondent.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, George A. Sarduy, Judge.
On petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, George A. Sarduy, Judge.
Abramowitz and Associates and Evan L. Abramowitz, for
appellant/petitioner.
Orshan, Spann & Fernandez-Mesa and Steven P. Spann and Robert D.
Orshan, for appellee/ respondent.
Before SALTER, LOGUE and SCALES, JJ.
SALTER, J.
The former wife, Jade Nicole Ryan (“Former Wife”), seeks review of a post-
judgment order in a dissolution of marriage case. The order suspended her
unsupervised timesharing with her minor child and ordered her to pay for
substance abuse evaluation and treatment. In Case No. 3D18-1420, Former Wife
appeals the modification of her timesharing rights with her child, a non-final order
with our limited jurisdiction as specified in Florida Rule of Appellate Procedure
9.130(a)(3)(C)(iii). In consolidated Case No. 3D18-1457, the Former Wife seeks a
writ of certiorari to quash another portion of the same order, in which she was
directed to submit herself to an alcohol and drug evaluation and a treatment
program, to be fitted with a SCRAM1 bracelet, and to pay for these measures at her
own expense.
We affirm the non-final order and deny the petition for certiorari.
Case No. 3D18-1420: Timesharing
The parties’ minor child is a four year-old girl. In addressing the Former
Husband’s third motion to restrict timesharing, the trial court properly considered
prior (and recent) agreed orders regarding the temporary suspension of
unsupervised timesharing, the Former Wife’s prior concessions of drug and
1 The acronym stands for “secure continuous remote alcohol monitor,” a wearable
device capable of detecting and electronically reporting alcohol use by the wearer.
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alcohol abuse, and the restoration of unsupervised timesharing during times of
compliance with conditions.
The trial court also heard new evidence (from a private investigator)
regarding empty champagne bottles and prescription drug containers collected
from the trash containers outside the Former Wife’s residence, where she
conducted her timesharing with the minor child. The guardian ad litem and the
private investigator testified, but did not provide specific information regarding the
best interests of the minor child. The guardian ad litem in fact recommended that
the Former Wife be allowed to exercise unsupervised timesharing with the child so
long as the Former Wife continues to wear the SCRAM bracelet.
The trial court’s limitations on the Former Wife’s visitation are reviewed for
an abuse of discretion. Sordo v. Camblin, 130 So. 3d 743, 744 (Fla. 3d DCA
2014). The court has discretion to restrict or deny visitation to protect the welfare
of the child. Hunter v. Hunter, 540 So. 2d 235, 238 (Fla. 3d DCA 1989).
In this case, there was little testimony regarding the best interests of the
child, but the earlier findings regarding alcohol abuse, drug abuse, and violations
of conditions in prior agreed orders were concerning to the trial court.2 The trial
2 As one example, the trial court referred to a 2017 determination that Former
Wife “had purchased 7,800 canisters of nitrous oxide in a six (6) week period.” As
another, Former Wife previously agreed to the entry of a requirement for
supervised visitation after allowing the child to play in the residential swimming
pool while the Former Wife was impaired.
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court found that these circumstances were “placing the minor child at risk if left
alone with the Former Wife.” Prior orders allowed supervised visitation by the
Former Wife when her mother was present and so long as other conditions were
fulfilled. The Former Husband’s latest motion contended that several
conditions had been violated and that a more formal limitation on supervised
visitation was necessary (with a supervisor appointed by the court, rather than by
the Former Wife’s mother). The record contains competent substantial evidence
supporting the trial court’s decision to renew limitations on the Former Wife’s
exercise of timesharing until such time as her compliance with conditions and
substance abuse evaluations support a restoration of unsupervised timesharing.
The Former Wife also argues that the order under review should be reversed
because it does not specify the conditions that must now be met in order to lift the
limitations on visitation, relying on cases such as Hunter v. Hunter, 540 So. 2d 235
(Fla. 3d DCA 1989). In this case, however, the order expressly directs the parties
to schedule a case management conference within thirty days to address the
Former Wife’s compliance with the SCRAM bracelet, alcohol and drug testing,
and treatment program requirements imposed by the order. The trial court stated
that, at the conference, the court would “determine the Former Wife’s time-sharing
status with the minor child.” We find no error in this procedure, as it provides a
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clear path toward reconsideration of the timesharing limitations if enumerated
conditions are met.3
We also find no error in those provisions of the order directing the Former
Wife to pay the expenses of her alcohol and drug evaluation, all expenses of the
SCRAM bracelet and monitoring, and the cost of in-patient or out-patient
treatment as recommended by the Transitions Recovery Program. If unable to pay
the expenses of the services required by the order, the Former Wife could be
denied an opportunity to resume unsupervised timesharing. In the trial court,
however, the Former Wife made no such assertion or demonstration of prospective
inability to pay those expenses.
Two of our sibling district courts have determined that the costs of
supervision should be treated as a child support expense and included in those
calculations. Moore v. Yahr, 192 So. 3d 544 (Fla. 4th DCA 2016); Perez v. Fay,
160 So. 3d 459 (Fla. 2d DCA 2015). But the Former Wife has not pointed to any
authority providing similar treatment for expenses of monitoring and treating
substance abuse imposed as a result of a party’s violation of prior agreed orders.
For these reasons, we affirm the order in Case No. 3D18-1420 relating to the
modification of timesharing.
Case No. 3D18-1457: Evaluation
3 In contrast, the order in Hunter was “uncertain as to when Mr. Hunter may
petition the court to reestablish visitation.” 540 So. 2d at 238.
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In this second of the consolidated cases, the Former Wife contends that the
portions of the same order requiring “the Former Wife to submit to a substance
abuse evaluation, be fitted for a SCRAM bracelet, attend substance abuse
treatment and be responsible for the costs associated with same” are a departure
from the essential requirements of the law, resulting in material injury for the
remainder of the case, such that the injury cannot be corrected in a post-judgment
appeal. M.M. v. Florida Dep’t of Children & Families, 189 So. 3d 134 (Fla. 2016).
For the reasons previously described, and on the record before us, we find
that none of these elements necessary to a writ of certiorari has been demonstrated,
and thus deny the petition.
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