
    Ofer M. AMIR, Appellant, v. Elizabeth M. AMIR n/k/a Elizabeth M. Gannon, Appellee.
    No. 4D04-4036.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.
    Order Denying Rehearing and Opinion Dissenting from Denial of Rehearing May 3, 2006.
    
      Stephen Rakusin of The Rakusin Law Firm, Fort Lauderdale, for appellant.
    Thomas R. Eineman of Thomas R. Eine-man, P.A., Spring Hill, for appellee.
   MAY, J.

The father appeals a final order regarding the children’s visitation after a remand from this court. We again reverse and remand the case to the trial court to correct the order concerning the visitation schedule.

The mother and father entered into a marital settlement agreement, which the trial court approved and incorporated into the final judgment of dissolution of marriage. The agreement provided the father with visitation of one month during the summer, alternate holidays from school, and weekends. Due to the distance between Broward and Pasco counties, however, the father exercised his weekend visitation with the children every other weekend.

The agreement further provided a “substitute” visitation schedule if the mother moved north of Pasco County or out of the state. That schedule allowed the father two months visitation during the summer and the “entire Christmas/Hanukkah vacation” from school.

When the mother moved north of Pasco County, the father asked for the time provided in the “substitute” visitation schedule in addition to the time allotted in the original visitation schedule. The mother took the position that the “substitute” visitation was in lieu of the original; not in addition to it. The trial court agreed with the father. The mother appealed. We reversed. Gannon v. Amir, 873 So.2d 532 (Fla. 4th DCA 2004).

In Gannon, we held that although the “substitute” visitation provision indicated it was providing extended or additional visitation, it actually provided a specific option in lieu of the original visitation schedule. We remanded the case to the trial court for entry of a final judgment consistent with our opinion. However, upon remand, the trial court entered an order containing distinctly different language. We now revisit the issue of visitation for the second time.

A basic principle of appellate review is the trial court lacks the authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. Hill v. Palm Beach Polo, Inc., 805 So.2d 1014, 1016 (Fla. 4th DCA 2001). After the issuance of a mandate, the trial court’s function is purely ministerial. Savage v. Macy’s E., Inc., 719 So.2d 1208, 1209 (Fla. 3d DCA 1998).

Our prior opinion instructed the trial court to provide the father with the two options called for by the agreement: (1) the original visitation schedule; or (2) the substitute visitation schedule. Despite this simple dictate, the trial court’s order correctly recited only the provisions of the “substitute” visitation schedule as set forth above. It then altered the original visitation schedule option.

In paragraph four, the court limited the father’s weekend visitation to every other weekend from Friday at 4:00 pm until Sunday afternoon, and limited the alternate holidays from school to half of the Christmas/Hanukkah vacation time from school. In paragraph five, the court then added a requirement that the father advise the mother of the visitation schedule he intended to exercise by December 1st of the preceding year.

The original visitation schedule clearly and unambiguously provided the father with visitation every weekend, one month during the summer, and alternate holidays from school. That is what the order should have indicated. There was no room for modification by the trial court.

Reversed and remanded.

STEVENSON, C.J., concurs.

WARNER, J., concurring in part and dissenting in part.

WARNER, J.,

concurring in part and dissenting in part.

I agree with the majority opinion except for that portion which reverses the trial court’s requirement that the father advise the mother by December 1st of the preceding year as to which visitation schedule, original or substitute, the father will elect for the ensuing year. I do not view that as a modification of the agreement at all. The father must determine whether he will be visiting with the children every weekend starting the first weekend in January of the upcoming year or whether he will have them in the summer and the winter vacation of that year. He cannot start with one visitation schedule and decide to switch to another halfway through the year. Therefore, the notification date provided by the trial court merely implements the option arrangement set forth in the parties’ agreement. It does not modify it.

On Motion for Rehearing

PER CURIAM.

The motion for rehearing is hereby denied.

STEVENSON, C.J., and MAY, J., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would grant the mother’s motion for rehearing, as she correctly notes that the issue of weekend visitation was already decided and not appealed by the husband in the prior appeal.

During the first proceeding, the trial court specifically determined that the visitation agreement called for the former husband to visit with the children every other weekend. This issue was litigated in the first proceeding, and the court determined, consistent with the parties’ practice, that weekend visitation under the agreement meant visitation every other weekend. Specifically, the final judgment stated: “The court clarifies and interprets the parties’ disagreement as to the former husband’s rights to visitation under the Marital Settlement Agreement as follows: 3. The former husband is entitled to weekend visitation with the minor children, which for the last seven years the parties have defined as every other weekend.”

The wife appealed that order on other grounds, but the husband failed to cross-appeal the trial court’s construction of the agreement as requiring alternating weekend visitation. Our prior opinion noted the parties’ construction of weekend visitation under the agreement as found by the trial court. Gannon v. Amir, 873 So.2d 532 (Fla. 4th DCA 2004).

On remand, and based upon our instructions, the trial court amended the final judgment to reflect our ruling. This was done without an additional evidentiary hearing. Nowhere in our prior order did we direct the court to reconsider its ruling with respect to its interpretation of the every other weekend requirement of visitation. The court entered the amended final judgment, which the former husband then appealed. However, having failed to contest the court’s construction of the agreement by cross-appeal in the first appeal, the former husband should have been precluded from raising the issue of his weekend visitation in this second proceeding. See Sibley v. Sibley, 885 So.2d 980 (Fla. 3d DCA 2004).

The subject of visitation was “implicitly addressed or necessarily considered by the appellate court’s decision,” see Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001), so that it is the law of the case. Our prior opinion noted that the former husband exercised visitation with the children every other weekend. The entire subject of the proceedings was the amount of visitation that the former husband could exercise with the children. After determining that the trial court erred in its interpretation of “substitute visitation” under the agreement, we reversed and remanded “for entry of a final judgment consistent with this opinion.” Gannon, 873 So.2d at 533. We did not remand for further proceedings — merely a final judgment consistent with our ruling. Thus, there was no room for proceedings to amend the trial court’s prior ruling that weekend visitation under the agreement meant alternating weekends. As such, I would conclude that the parties are governed by the law of the case.

Moreover, at the very least, the weekend visitation provision in the agreement was ambiguous, which ambiguity was resolved by the trial court. The visitation agreement states: “That the children may visit the husband/father for a period of one month during the Summer; alternate holidays from school; and weekends. The specifics as to all visitation shall be worked out by the parties to their mutual satisfaction in advance of all visitations.” The agreement does not define “weekends” or state that “weekends” means every weekend. Thus, weekends could be contrasted to weekdays. The parties were to work out the visitation to their mutual satisfaction and their pattern over seven years, from the time the agreement was executed to these proceedings, was that the former husband exercised visitation on alternating weekends. At the original proceedings, the wife testified that they intended that the husband have alternating weekends. The husband maintained that the agreement required every weekend visitation, even though he never exercised it. The trial court was the trier of fact and resolved the inconsistencies between the parties’ positions. Even if the husband can appeal the weekend designation, we should affirm, because the agreement was ambiguous, and the trial court’s ruling was supported by competent substantial evidence. See Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468 (Fla. 4th DCA 2000).

Based upon the foregoing, I would now affirm the trial court’s order in its entirety. 
      
      . The court's order properly specified the one month of summer visitation under the original schedule.
     