PESCOD v. IRVIN (2021)

District Court of Appeal of Florida, Second District.2021-11-17No. No. 2D21-188

Summary · law.co

Holding. The trial court's order granting the emergency motion without an evidentiary hearing was reversed and remanded because the motion lacked an alleged emergency and relied solely on an unsworn guardian ad litem report, failing to satisfy requirements for ex parte entry.

Laura Pescod appealed a trial court order that granted Christopher Irvin's motion to implement recommendations from a guardian ad litem. The order, entered without a hearing in December 2020, required Pescod to participate in reunification therapy and imposed a three-month period during which she had no overnight or in-home visitation with the minor child. The appellate court found that the trial court improperly entered this order on an ex parte basis without an evidentiary hearing.

The court determined that Irvin's motion did not satisfy the requirements for ex parte relief because he failed to allege an emergency situation, and his only supporting evidence was an unsworn report from the guardian ad litem. Under applicable law, such procedural defects constitute reversible error. The court vacated the December 2020 order to prevent its use in future timesharing proceedings, despite the order no longer being in effect at the time of appeal.

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Key issues

Whether ex parte relief was proper without an alleged emergency
Whether an unsworn guardian ad litem report alone constitutes sufficient support for an ex parte order
Whether a trial court must hold an evidentiary hearing before implementing timesharing restrictions

Procedural posture

Pescod appealed the trial court's December 2020 order granting Irvin's verified emergency motion to adopt interim guardian ad litem recommendations regarding child custody and timesharing.

Authorities cited

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Opinion · public domain

Laura L. Pescod challenges the trial courts order granting Christopher G. Irvins “Verified Emergency Motion to Adopt the Interim Recommendations of the Guardian Ad Litem.” The court granted Mr. Irvins motion on an ex parte basis, finding that it was in the best interest of the parties minor child to implement the recommendations of the guardian ad litem. We reverse.

The order on appeal was entered in December 2020 without a hearing. It required Ms. Pescod and the parties child to participate in reunification therapy and implemented a three-month “time out” during which time Ms. Pescod did not have timesharing with the child overnight or at Ms. Pescods home. Although the motion upon which the order was predicated was sworn to by Mr. Irvin, Mr. Irvin did not allege an emergency situation as required for entry of an ex parte order and his only support was the unsworn report of the guardian ad litem. See Bahl v. Bahl, 220 So. 3d 1214, 1216 (Fla. 2d DCA 2016). Accordingly, the trial court reversibly erred in granting the motion without first holding an evidentiary hearing. See id. The December 2020 order must be vacated on remand.

Reversed and remanded with instructions.

FOOTNOTES

. Despite the fact that no relief can be afforded to Ms. Pescod because the order is no longer in effect, we conclude that under the circumstances of this case the appeal is not moot and that the order must be vacated so that it may not be utilized in future timesharing proceedings. Cf. Cancellari v. Rance, 779 So. 2d 373, 374 (Fla. 2d DCA 2000); Julian v. Bryan, 710 So. 2d 1037, 1039 (Fla. 2d DCA 1998); Troike v. Troike, 271 So. 3d 1069, 1072 (Fla. 3d DCA 2019).

BLACK, Judge.

LUCAS and ATKINSON, JJ., Concur.