Third District Court of Appeal
State of Florida
Opinion filed November 24, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1168
Lower Tribunal No. 20-18491
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Pedro Velasquez,
Appellant,
vs.
Lesly Mendieta,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-
Dade County, Christina Marie DiRaimondo, Judge.
The Joseph Firm, P.A., and Marck K. Joseph, for appellant.
Recoba Law Office, and Megan Roth and Raul C. Recoba, for
appellee.
Before FERNANDEZ, C.J., and HENDON and GORDO, JJ.
HENDON, J.
Pedro Velasquez (“Husband” or “Father”) appeals from the Order on
Father’s Motion for Temporary Timesharing entered following an
evidentiary hearing, which order reflects lower tribunal case number 2020-
018491 FC 04. We affirm the order under review but remand with
instructions for the trial court to enter an amended order reflecting the
correct lower tribunal case number—2020-019084 FC 04.
The Husband and Lesly Mendieta (“Wife”) have two actions pending
before the same division in the lower tribunal: (1) a domestic violence
action initiated by the Wife when she filed a Petition for Injunction for
Protection Against Domestic Violence with Children against the Husband
(“Injunction Petition”), which was assigned case number 2020-018491 FC
04 (“Domestic Violence Action”), and (2) a dissolution of marriage action
initiated by the Wife, which was assigned case number 2020-019084 FC 04
(“Divorce Action”). At all times relevant to this appeal, both actions were
before Judge Cristina Marie DiRaimondo.
In these two cases, three notices were filed setting matters for
hearing before Judge DiRaimondo on April 19, 2021 at 2:30 p.m. via
Zoom—(1) a notice of hearing filed in the Domestic Violence Action setting
the Husband’s Motion for Summary Judgment and/or to Dismiss Petition for
Injunction and also setting the final hearing in the Domestic Violence
Action; (2) a notice of hearing filed in the Divorce Action setting the Father’s
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Motion for Temporary Timesharing Schedule (“Motion for Temporary
Timesharing”); and (3) a notice of hearing filed in the Domestic Violence
Action setting the Wife’s Motion for Leave to Amend Petition.
At the April 19, 2021 hearing, the trial court granted the Wife’s motion
for leave to amend the Injunction Petition, and stated that, during this
hearing, it would not be ruling on the Husband’s Motion for Summary
Judgment and/or to Dismiss Petition for Injunction or conducting the final
hearing in the Domestic Violence Action. Moreover, the trial court entered
the order under review—Order on Father’s Motion for Temporary
Timesharing. In this order, the trial court denied the Father’s Motion for
Temporary Timesharing without prejudice, appointed a guardian ad litem
(“GAL”), noted that the trial court would revisit the temporary timesharing
issue after the GAL provides a recommendation to the trial court, and
ordered the parties to continue the timesharing as set forth in the Agreed
Timesharing Order entered in January 2021 in the Domestic Violence
Action. Although the Father’s Motion for Temporary Timesharing was filed
in the Divorce Action, the order under review reflects the case number in
the Domestic Violence Action. The Father’s appeal followed.
The Father argues that the trial court erred by entering the order
under review where a motion for temporary timesharing was not filed or
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noticed for hearing in the Domestic Violence Action. The Father’s
argument lacks merit.
The Father’s Motion for Temporary Timesharing and the respective
notice of hearing were filed in the Divorce Action, not the Domestic
Violence Action. Thus, the Father’s argument completely lacks merit as it
evident that the reference to the case number in the Domestic Violence
Action was nothing more than a scrivener’s error.
We also reject the Father’s argument that the trial court erred by
ordering the appointment of a GAL where neither party filed a motion
requesting the appointment of a GAL in the Domestic Violence Action, and
the trial court lacked the authority to appoint a GAL in a domestic violence
action. Contrary to the Father’s contention, the trial court appointed the
GAL in the Divorce Action, not the Domestic Violence Action. As stated
earlier, the reference to the case number in the Domestic Violence Action is
a scrivener’s error. Further, a trial court has the discretion to appoint a
GAL in a dissolution of marriage action if the trial court determines it is in
the best interest of the child. See § 61.401, Fla. Stat. (2021). As such, this
argument also lacks merit. Accordingly, we affirm the order under review
but remand with instructions for the trial court to enter an amended order
reflecting the correct lower tribunal case number—2020-019084 FC 04.
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Affirmed and remanded with instructions.
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