IN THE FLORIDA SUPREME COURT DOUGLAS M. WYCKOFF, Petitioner, vs. TERRY LYNN WYCKOFF, Respondent.

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Fla. S. Ct. Case No. SC06-1360 Fla. 2d DCA Case No. 2D05-1999 Lee County Cir. Ct. Case No. 98-8000-CA-C

________________________________________________________ ON DISCRETIONARY REVIEW FROM THE FLORIDA SECOND DISTRICT COURT OF APPEAL ________________________________________________________ ________________________________________________________ PETITIONER'S BRIEF ON JURISDICTION ________________________________________________________ David M. Caldevilla, FBN 654248 de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Telephone: (813) 229-2775

Douglas M. Wyckoff, FBN 472883 Post Office Box 786 DeFuniak Springs, Florida 32435 Telephone: (850) 217-8855

COUNSEL FOR PETITIONER

TABLE OF CONTENTS Page TABLE OF AUTHORITIES............................................................................... ii STATEMENT OF CASE AND FACTS.............................................................. 1 SUMMARY OF THE ARGUMENTS................................................................. 1 ARGUMENTS I.

THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS ...... 2

CONCLUSION................................................................................................ 10 CERTIFICATE OF SERVICE.......................................................................... 10 CERTIFICATE OF COMPLIANCE ................................................................. 10

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TABLE OF AUTHORITIES Citations to case law:

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Agranoff v. Agranoff, 882 So.2d 1085 (Fla.2d DCA 2004)………………………………………...8 Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla.1953)……………………………………………….........5 Burckle v. Burckle, 915 So.2d 747 (Fla.2d DCA 2005)…………………………………………7 Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)………………………………………………….9 Giangrande v. Henao, 898 So.2d 1104 (Fla.2d DCA 2005)………………………………..........7, 8 Gibbs v. Gibbs, 686 So.2d 639 (Fla.2d DCA 1996)……………………………...3, 4, 6, 9, 10 Goldfarb v. Daitch, 696 So.2d 1199 (Fla.3d DCA 1997)……………………………………..1, 5 Hamilton v. Hamilton, 922 So.2d 263 (Fla.2d DCA 2006)………………………………................7 Leng-Gross v. Gross, 898 So.2d 241 (Fla.4th DCA 2005)………………………………………...8 Perez v. Perez, 767 So.2d 513 (Fla.3d DCA 2000)…………………………………............4 Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991)………………………………………….6 Sheridan v. Sheridan, 899 So.2d 469 (Fla.2d DCA 2005) ………………………………..............7

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Skipper v. Schumacher, 160 So. 357 (Fla.1935)…………………………………………………….5 Sotomayor v. Sotomayor, 891 So.2d 559 (Fla.2d DCA 2004)……………………………..................8 Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965)…………………………………………………1, 5 VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So.2d 504 (Fla.5th DCA 2001)…………………………………….1, 9 Wade v. Hirschman, 903 So.2d 928 (Fla.2005)……………………………....1, 2, 3, 4, 5, 6, 7, 9 Wyckoff v. Wyckoff, - So.2d -, 31 Fla. L. Weekly D1640, 2006 WL 1667394 (Fla.2d DCA June 16, 2006) ("Wyckoff II")…………………………Passim Wyckoff v. Wyckoff, 820 So.2d 350 (Fla.2d DCA 2002)("Wyckoff I")……………………Passim Zemurray v. Kilgore, 177 So. 714 (Fla.1937)……………………………………………….........5 Citations to rules: Fla.R.App.P. 9.210………………………………………………………………10 Citations to statutes: §61.13(3), Fla. Stat. ……………………………………………………………...4 Citation to Florida Constitution: Art. V, §3(b)(3), Fla. Const……………………………………………………1, 2 Citations to other sources: 13 Fla. Jur.2d, Courts and Judges §16 (1979)……………………………………..5 iii

STATEMENT OF CASE AND FACTS Petitioner Douglas M. Wyckoff (the "Father") seeks review of Wyckoff v. Wyckoff, - So.2d -, 31 Fla. L. Weekly D1640, 2006 WL 1667394, (Fla.2d DCA June 16, 2006) ("Wyckoff II"), a copy of which is attached. On June 16, 2006, the Florida Second District Court of Appeal ("Second District") issued a decision in Wyckoff II, which in its entirety, states: Douglas M. Wyckoff appeals the trial court's order rendered March 11, 2005, arguing that the court erred in resolving several postdissolution issues. He also argues that in light of the Florida Supreme Court's decision in Wade v. Hirschman, 903 So.2d 928 (Fla.2005), this court should vacate or modify our earlier decision in Wyckoff v. Wyckoff, 820 So.2d 350 (Fla.2d DCA 2002). We affirm in all respects but note that the substantial change test approved in Wade would apply to further child custody modification proceedings between the parties. Affirmed. Wyckoff II, at 1-2. The Father's timely notice of invoking jurisdiction followed. SUMMARY OF THE ARGUMENTS The Second District's decision expressly and directly conflicts with Wade v. Hirschman, 903 So.2d 928 (Fla.2005); Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965); Goldfarb v. Daitch, 696 So.2d 1199 (Fla.3d DCA 1997); and VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So.2d 504 (Fla.5th DCA 2001). This Court should, therefore, invoke its discretionary jurisdiction pursuant to Art. V, §3(b)(3), Fla. Const. to review Wyckoff II.

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I.

THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS This is a child custody case. As explained in Wyckoff II, the Father requested

the Second District to vacate or modify its earlier decision in Wyckoff v. Wyckoff, 820 So.2d 350 (Fla.2d DCA 2002) ("Wyckoff I"), in light of this Court's decision in Wade v. Hirschman, 903 So.2d 928 (Fla.2005). However, the Second District declined to vacate or modify Wyckoff I, and as a result, Wyckoff II "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law" under Art. V, §3(b)(3), Fla. Const. Wyckoff I explains that the Father and Respondent Terry Lynn Wyckoff (the "Mother") were married in 1993, and have two minor children. Wyckoff I, 820 So.2d at 352. In March 1998, the parties entered into a marital settlement agreement that was incorporated into a final judgment of dissolution of marriage. Id. According to Wyckoff I, this agreement gave the Mother primary residential responsibility of the children. Id., 820 So.2d at 352. The Father subsequently filed a petition for modification, seeking primary residential custody of the two minor children. Id. After a 3-day trial, the trial court granted the Father's petition and awarded primary custody of the children to him. Id., 820 So.2d at 352-353. The Mother appealed that order, and in Wyckoff I, the Second District reversed it on the following grounds: … it appears the trial court applied a "best interests" standard to evaluate 2

whether there should be a change in the custody of these children, as opposed to the "extraordinary burden" test set forth in Gibbs v. Gibbs, 686 So.2d 639 (Fla.2d DCA 1996). We conclude that the extraordinary burden test applies, and viewing the evidence in the light most favorable to the [Father], the [Father] did not meet the burden of proof necessary to support a change in custody of the children. Wyckoff I, 820 So.2d at 352. Thus, in Wyckoff I, the Second District relied on the "extraordinary burden" test announced in Gibbs (also known as the "detrimental impact" test), as the basis for reversing the trial court's child custody modification decision, even though the Second District expressly recognized that the trial court had determined, based on the evidence adduced at a 3-day trial, that it was in the children's best interests for the Father to have primary custody, and that the Mother interfered with the Father's visitation rights. Wyckoff I, 820 So.2d at 354-355. 1 After Wyckoff I, the trial court rendered a post-dissolution order, which the Father appealed to the Second District. See, Wyckoff II, at 1. Soon thereafter, this Court issued the Wade decision. Wade rejected the Gibbs detrimental impact test that the Second District had applied in Wyckoff I, and confirmed that the "best If this Court accepts jurisdiction and orders the record on appeal, this Court will see that besides applying the "best interests" test, the trial court also expressly found that the Mother's "attitude detrimentally affects the children, in terms of their emotional and physical health" and that one of the children "suffered substantial physical symptoms which appeared to be directly tied to the parental conflict and [the Mother's] attitude toward [the Father]." The record will also demonstrate that the Wyckoff I court erroneously reweighed the evidence and engaged in de novo fact finding on appeal. While these circumstances illustrate departures from wellsettled principles of appellate review, this Court need not rely on an examination of the record as a basis for accepting jurisdiction, because Wyckoff II, on its face, conflicts with other appellate court decisions on the same questions of law. 1

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interests" test controls: The arguments favoring a finding of detriment fail to recognize adequately the purpose of the “best interest of the child” prong of the substantial change test, which when properly applied ensures the stability of custody-related awards because of the res judicata effect of the original decree. Moreover, the detriment requirement conflicts with section 61.13(3), which enumerates the factors affecting the welfare and best interest of the child, which the trial court is to consider in proceedings dealing with shared parental responsibility and primary residence. We agree with Judge Cope’s special concurrence in [Perez v. Perez, 767 So.2d 513 (Fla.3d DCA 2000)] in which he opined: The detriment-to-the-child standard obviously conflicts with Florida’s shared parenting law.... Moreover, it appears to turn the best interests standard on its head. One clearly could demonstrate that a change of custody would promote the child’s best interest, thereby helping the child, while not having evidence that the current situation would be detrimental to the child. Perez, 767 So.2d at 521 …. Requiring proof of detriment is inconsistent with this Court’s prior holdings and is not an element of the substantial change test necessary to modify a child custody award. Wade, 903 So.2d at 934 (emph. added). Thus, Wade confirmed that the Gibbs "extraordinary burden" test (relied upon in Wyckoff I) is contrary to Florida law. Accordingly, in Wyckoff II, the Father "argue[d] that in light of the Florida Supreme Court's decision in Wade..., [the Second District] should vacate or modify [its] earlier decision in [Wyckoff I]." See, Wyckoff II, at 1-2. However, the Second District declined to do that. As a result, Wyckoff II suggests that Wyckoff I is still good law. Because Wyckoff I expressly relies upon the Gibbs test, which was overturned in Wade, the Second District's Wyckoff II decision conflicts with Wade. 4

Besides conflicting with Wade, the Wyckoff II decision also conflicts with other decisions, which hold that an appellate court has the "duty" to vacate or modify a prior erroneous decision. As the explained in Goldfarb v. Daitch, 696 So.2d 1199 (Fla.3d DCA 1997): "[E]very court, whether possessed of original or appellate jurisdiction, is vested with inherent power to vacate its own orders, judgments, or decrees, if void, and indeed, every such court is duty bound to do so when appropriate procedure is invoked for that purpose." Skipper v. Schumacher, 118 Fla. 867, 160 So. 357, 359 (1935); see also 13 Fla. Jur.2d Courts and Judges §16 (1979). Moreover, "[o]rders, decrees, or judgments procured through mistake, may be opened, vacated, or modified at any time, on the proper showing made by the parties injured." Zemurray v. Kilgore, 130 Fla. 317, 177 So. 714, 718 (1937). Goldfarb, 696 So.2d at 1203 (emph. added). In Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965), this Court explained: 'We may change 'the law of the case' at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. In such a situation a court of justice should never adopt a pertinacious attitude.' Id. 177 So.2d at 3 (emph. added), quoting, Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla.1953). Strazulla further held: … [A] clear example of a case in which an exception to the general rule should be made results from an intervening decision by a higher court contrary to the decision reached on the former appeal, the correction of the error making unnecessary an appeal to the higher court. Id., 177 So.2d at 4. Goldfarb and Strazzulla apply here, and conflict with the Second District's refusal in Wyckoff II vacate or modify Wyckoff I. 5

Wyckoff II is only a few sentences long, but it is a very important case that deserves to be reviewed by this Court because it departs from the essential principles of stare decisis and equal protection that all litigants rely upon in seeking justice from the courts. Although the Second District was reluctant to undo the errors and manifest injustices engendered by Wyckoff I, this Court must not allow that reluctance to continue perpetuating those errors and injustices. It is virtually impossible to overstate the importance of protecting the best interests of children and the parent/child relationship. A parent has a constitutionally protected inherent right to a meaningful relationship with his children. Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991). In Wade, this Court confirmed that the Gibbs test is wrong. In reliance on the Gibbs test, Wyckoff I erroneously reversed a proper child custody determination that was in the children's best interests. The Second District's refusal to correct its prior error prevents the Father from enforcing his constitutionally protected rights. Wyckoff II concludes by holding that "the substantial change test approved in Wade would apply to further child custody modification proceedings between the parties." Id. at 2. Thus, the Second District has placed upon the Father the burden of having to start all over again, with a new petition for child custody modification and a de novo re-evaluation by the trial court (and potentially, the Second District thereafter). The Second District's holding fails to acknowledge or account for the

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fact that the Father and the trial court already complied with Wade, and that Wyckoff I itself was an erroneous child custody modification. Appellate courts frequently reverse erroneous child custody determinations and restore the preexisting child custody arrangement, without requiring the prevailing parent to file a new petition on remand and without requiring a de novo re-evaluation of the best interests of the children on remand. See, e.g., Hamilton v. Hamilton, 922 So.2d 263 (Fla.2d DCA 2006); 2 Burckle v. Burckle, 915 So.2d 747 (Fla.2d DCA 2005); 3 Sheridan v. Sheridan, 899 So.2d 469 (Fla.2d DCA 2005);4 Giangrande v. Henao,

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In Hamilton, the father appealed a final judgment that awarded primary residential responsibility for the minor child to the mother. The Second District "reverse[d] that aspect of the final judgment and remand[ed] for entry of a judgment placing primary residential responsibility with [the father] and making appropriate provisions for visitation and support." The Second District did not direct the trial court to reconsider the best interests of the child on remand, even though that appeal had been pending for almost 2 years. In Burckle, the father appealed a civil contempt order which ordered a change of child custody as a sanction. The Second District reversed the child custody modification, without directing the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for almost 1½ years. 3

Sheridan reversed the trial court's child custody decision, "and remand[ed] with instructions to reinstate primary residential custody with the mother." The Second District did not direct the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for almost 1½ years. 4

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898 So.2d 1104 (Fla.2d DCA 2005); 5 Sotomayor v. Sotomayor, 891 So.2d 559 (Fla.2d DCA 2004); 6 Agranoff v. Agranoff, 882 So.2d 1085 (Fla.2d DCA 2004); 7 Leng-Gross v. Gross, 898 So.2d 241 (Fla.4th DCA 2005). 8 Wyckoff II presented the same situation, except that the erroneous child custody determination was made in Wyckoff I by the Second District itself, instead of the trial court. That distinction should not have stopped the Second District from correcting the error. Appellate courts are in the business of correcting errors. It, therefore, should not have been a problem for the Second District to correct the erroneous child Giangrande reversed the trial court's child custody decision and remanded with instructions that "the trial court shall enter an order reinstating [the mother] as the children's primary residential custodian and provide for an orderly transfer of custody from [the father] to her." The Second District did not direct the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for over 1 year. 5

Sotomeyer reversed an order transferring child custody from the mother to the father. The Second District directed the trial court to "enter an order reinstating the Mother's home as the child's primary residence and provide for the orderly transfer of custody from the Father to the Mother." The Second District did not direct the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for 11 months. 6

Agranoff reversed the trial court's child custody decision, and remanded "for the entry of an order reinstating the Former Wife as the parent with primary residential responsibility for the parties' minor children." The Second District did not direct the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for 15 months. 7

In Leng-Gross, the Fourth District reversed the trial court's child custody modification order which designated the father as the primary residential parent. The Fourth District did not direct the trial court to reconsider the best interests of the child on remand, even though the appeal had been pending for 14 months. 8

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custody determination it made in Wyckoff I. In VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So.2d 504 (Fla.5th DCA 2001), the Fifth District receded from a decision it had issued 4 years earlier in a prior appeal of the same case. Thus, VLX Properties was in a similar procedural posture as Wyckoff II. In reaching its decision, a majority of the en banc Fifth District profoundly observed: Precedent (stare decisis), and law of the case for that matter, is like tradition in that it provides a valuable connection to the past. It assists in providing consistency and predictability, both valuable qualities in law. But neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we have made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we have caused. Neither this court nor the law is served by our adhering to a previous position which we now believe to be wrong. VLX Properties, 792 So.2d at 509 (emph. added). The Father submits that the Second District's decision in Wyckoff II continues to perpetuate the erroneous application of the Gibbs test to the parties in this case. In Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), this Court explained that "Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness." Accordingly, it is not logical or reasonable for Wyckoff II to maintain Wyckoff I in full force and effect against the Father, after Wade invalidated the Gibbs test. Litigants in the Second District must be able to 9

have confidence that their disputes will decided based on the same legal theories and standards as litigants in other appellate courts of this state. The Second District's decision in Wyckoff II undermines that confidence and requires the Father and his children to continue abiding by the patently erroneous decisions in Wyckoff I and Gibbs. CONCLUSION WHEREFORE, the Father respectfully requests this Court to invoke its discretionary jurisdiction to review the Second District's decision. CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served by U.S. Mail to J.L. "Ray" LeGrande, Esquire, P.O. Box 2429, Fort Myers, Florida 339022429on this ________ day of ______________, 20____. CERTIFICATE OF COMPLIANCE I certify the text herein is printed in Times New Roman 14-point font, and that this brief complies with the font requirements of Fla.R.App.P. 9.210. _____________________________ David M. Caldevilla, FBN 654248 de la PARTE & GILBERT, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Telephone: (813) 229-2775 and Douglas M. Wyckoff, FBN 472883 Post Office Box 786 DeFuniak Springs, Florida 32435 Telephone: (850) 217-8855 COUNSEL FOR PETITIONER 10