Gimonge v. Gimonge

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

EMMANUEL SOSPETER GIMONGE,

Appellant,

v. Case No. 5D17-2747

LAURIE SOSPETER GIMONGE,

Appellee.
________________________________/

Opinion filed March 23, 2018

Appeal from the Circuit Court
for Lake County,
Heidi Davis, Judge.

Jason Brian Phillips, of J. Brian Phillips,
P.A., Orlando, for Appellant.

Adam H. Sudbury of Apellie Legal,
Orlando, for Appellee.

PER CURIAM.

Emmanuel Sospeter Gimonge (“Father”) appeals a non-final order granting an

emergency motion for child pick-up in favor of Laurie Sospeter Gimonge (“Mother”). 1

Father argues that the trial court erred in granting Mother’s motion because she failed to

1 Jurisdiction exists pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(C)(iii)b., which provides jurisdiction in family law matters to review non-final
orders determining “the rights or obligations of a party regarding child custody.”
file a petition to relocate with the couple’s minor child under section 61.13001, Florida

Statutes (2017). We affirm.

The parties were married in 2011 and have one child in common. They separated

in 2015, but Mother filed for dissolution of marriage in 2017. That action remains pending.

After filing for dissolution, Mother, without Father’s consent or a court order, left Florida

with the child and moved to Michigan. Father filed an ex parte emergency motion for child

pick-up, seeking to have the child returned to Florida. The court declined to rule on an ex

parte basis and set the motion for a hearing. We glean from the limited record that the

parties ran out of time at the scheduled hearing.

The parties subsequently entered into a stipulation that resolved Father’s motion,

the nature of which forms the essence of this appeal. The terms of the agreement

provided that the child would remain in Mother’s custody, pending the outcome of a

scheduled mediation. If the parties were unable to reach an agreement during mediation,

either party would be able to file a motion for temporary relief pending trial. Father would

have one month of timesharing in the summer, which required that he would pick the child

up in person in Michigan, as well as timesharing over winter break. Additionally, the

agreement provided, “Father shall not be prejudiced should the child end up attending

school in Michigan pending a scheduled mediation or trial date.” The agreement

specifically provided that Father reserved his right to litigate the issues raised in the

emergency motion at the time of trial. The stipulation specified that it was “a temporary

agreement without prejudice to either side taking a different, new, or conflicting position

later.” The trial court approved and ratified the agreement by temporary order. 2

2 The court also ordered Father to pay temporary child support.

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Father subsequently filed an ex parte emergency motion for

contempt/enforcement and child pick-up, alleging that Mother refused to comply with the

agreed-upon summer visitation. As a result, the court awarded Father thirty days of make-

up timesharing. Toward the end of that timesharing, Father filed an emergency motion for

injunction to prevent the removal of the child from Florida (and by implication his having

to return the child to Mother), arguing that Mother had failed to file a petition to relocate

with the child and had removed the child from Florida without his consent. In turn, Mother

filed an emergency motion for child pick-up order, alleging that Father refused to return

the child following his timesharing pursuant to the court ordered make-up visitation. The

trial court ruled in favor of Mother.

Section 61.13001, Florida Statutes (2017), governs “[p]arental relocation with a

child.” It provides, in relevant part:

(2) Relocation by agreement.—

(a) If the parents and every other person entitled to access to
or time-sharing with the child agree to the relocation of the
child, they may satisfy the requirements of this section by
signing a written agreement that:

1. Reflects consent to the relocation;

2. Defines an access or time-sharing schedule for the
nonrelocating parent and any other persons who are entitled
to access or time-sharing; and

3. Describes, if necessary, any transportation arrangements
related to access or time-sharing.

(b) If there is an existing cause of action, judgment, or decree
of record pertaining to the child’s residence or a time-sharing
schedule, the parties shall seek ratification of the agreement
by court order without the necessity of an evidentiary hearing
unless a hearing is requested. . . .

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(3) Petition to relocate.--Unless an agreement has been
entered as described in subsection (2), a parent or other
person seeking relocation must file a petition to relocate and
serve it upon the other parent, and every other person entitled
to access to or time-sharing with the child. The pleadings must
be in accordance with this section . . . .

§ 61.13001(2)–(3), Fla. Stat. (2017). Under the clear language of the statute, parties may

either agree to a child’s relocation, or the relocating parent must file a petition to relocate.

The central issue on appeal is whether the parties’ agreement authorized Mother to

temporarily relocate with the parties’ child pending final dissolution proceedings, without

filing a petition to relocate pursuant to section 61.13001(3).

Father contends that the parties’ agreement was not an agreement for relocation,

but rather it was merely a stipulated contact schedule. We find no error in the trial court’s

disinclination to engage in such semantics. The parties’ agreement complied with the

mandates of section 61.13001(2). The agreement reflects that Father consented to

temporary relocation: Mother resided in Michigan and the agreement provided that the

child would remain in her custody and possibly attend school in Michigan. See §

61.13001(2)(A)1., Fla. Stat. The agreement defines Father’s timesharing, detailing his

rights over summer and winter breaks. See id. § 61.13001(2)(A)2. The agreement also

provides transportation arrangements, requiring Father to both pick up and return the

child in Michigan. See id. § 61.13001(2)(A)3. Once ratified by the court, it became a

temporary child custody order. Therefore, the agreement complied with the requirements

of section 61.13001(2), and Mother was not required to subsequently file a petition to

relocate. See id. § 61.13001(2)–(3).

We note, however, that the agreement at issue is temporary, pending final

dissolution proceedings. The agreement specifically allows Father to raise at trial the

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issue of Mother’s admittedly improper initial removal of the child from Florida, and Mother

can raise Father’s failure to return the child at the conclusion of the summer visitation.

We express no opinion on whether relocation would be appropriate.

AFFIRMED.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.