Trial Court Grants Motion for Rehearing in Favor of Client Who Received Litigation Support from the Law Offices of Robin Bresky
Following the trial court’s dismissal of his SecondSupplemental Petition to Permit Relocation with Minor Child in a paternity action, the Father retained the Law Offices of Robin Bresky to draft a Motion for Rehearing to be filed by trial counsel. Recently, the trial court granted the Motion for Rehearing, which effectively undid the dismissal order.
The relevant history leading up to the SecondSupplemental Petition is as follows. Pursuant to the Final Judgment, our client was declared the child’s biological father and he was afforded timesharing rights. The Father later filed his FirstSupplemental Petition to Permit Relocation with Minor Child and despite the parties entering into a “Stipulation,” they did not agree to any modification of timesharing. The parties stated in their Stipulation that they would work together to create a long-distance parenting plan as the Father no longer lived in Florida. The court ratified the Stipulation. The parties did not reach an agreement on a parenting plan.
Less than one year after the court’s ratification of the Stipulation, the Father filed his SecondSupplemental Petition, wherein he asserted that it was in the child’s best interest that the child resides with the Father out of state. In response, the Mother filed a Motion to Dismiss the SecondSupplemental Petition.
Following a hearing, the trial court granted the dismissal of the SecondSupplemental Petition. The trial court found that the parental relocation statute, section 61.13001, Florida Statutes, was inapplicable because the Father was not seeking to relocate his principal address since the court’s Ratification Order. The court also determined that res judicata barred the Father’s SecondSupplemental Petition.
In the Motion for Rehearing, the Law Offices of Robin Bresky claimed that the court erred in dismissing the SecondSupplemental Petition. The Motion for Rehearing explained that the SecondSupplemental Petition sought a change in the location of the Father’s principal residence from his principal residence at the time the last order establishing or modifying timesharing was entered, which was the Final Judgment when the Father resided in Florida. We argued in the Motion for Rehearing that the court erroneously relied on the Ratification Order as the last order establishing or modifying timesharing. The Motion for Rehearing served dual bases: (1) to persuade the court to consider whether the dismissal was properly entered; and (2) to preserve the record for appeal where there was no court reporter at the hearing which led to the dismissal.
While the Motion for Rehearing was pending, the Father additionally retained the Law Offices of Robin Bresky to appeal the dismissal of the SecondSupplemental Petition. While the appeal was pending, the trial court conducted a hearing on the Motion for Rehearing. At that hearing, the trial court found that the Motion for Rehearing was “well-taken.” Fortunately for our client, the court granted the Motion for Rehearing and ordered the Mother to file her response to the SecondSupplemental Petition. The court commented that the court never reversed itself previously.
We are pleased that the Motion for Rehearing persuaded the trial court to find that the dismissal order was erroneously entered. Now our client will be able to present evidence in the near future to establish that the proposed relocation is in the child’s best interest and not have to wait for the appellate court to conclude whether the dismissal in the first instance was proper.