Opinion
1D23-0213
09-13-2023
Kate Cheryl Hunt Stuart, Appellant, v. Blair J. Lapete, Appellee.
William Stephen Black, Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, Sarah Faye Carter, and Deanna Shifrin, Tallahassee; Jessica Satinoff, Miami, for Appellant. Scott W. Smiley, Marin Donnelly, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Barbara K. Hobbs, Judge.
William Stephen Black, Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, Sarah Faye Carter, and Deanna Shifrin, Tallahassee; Jessica Satinoff, Miami, for Appellant.
Scott W. Smiley, Marin Donnelly, Tallahassee, for Appellee.
B.L. THOMAS, J.
This case is an appeal from a non-final order granting father's motion for temporary relief in a paternity action. Among other things, the order established a rotating temporary timesharing schedule such that the minor child will be with each parent for a two-week period each month. We reverse the order because the trial court violated mother's right to due process by establishing the schedule without prior notice that a two-week rotating schedule would be considered and without giving mother the opportunity to prepare argument and put on witnesses concerning the potential effect of this schedule on the minor child. We also reverse the order because there was no competent, substantial evidence that such a timesharing schedule is in the child's best interests.
The parties began their relationship in August 2019 in Tallahassee. Shortly thereafter, father helped mother move to Miami. Mother had a timesharing schedule for a child from a prior relationship that required her to reside in Miami. The parties' son was born on June 21, 2021, in Tallahassee. Approximately two months after the birth, mother returned to Miami while father remained in Tallahassee, and their relationship ended soon thereafter.
Father filed a paternity action and a motion for temporary relief to establish a timesharing schedule. The motion specifically sought a 50-50 timesharing arrangement on a weekly rotation between the parents. At the time of the hearing on the motion, the minor child was 16 months old. At the start of the hearing, father's counsel reiterated that father was seeking a week-on/week-off timesharing schedule. The testimony and evidence at the hearing largely concerned the schedule and accommodations that would be needed so that the child could continue breastfeeding. The trial court heard testimony from the mother about this issue as well as testimony from a family medicine doctor and board-certified lactation consultant.
The first time that a two-week rotating schedule was proposed was during father's direct testimony, in which he suggested the schedule as a means to cut down on travel time. The trial judge's comments indicated that she was strongly considering a two-week schedule and that she knew that mother would vehemently disagree with such a schedule. Mother's counsel asked for time to discuss this alternative with mother but was not given this time. Mother's counsel also stated that if she had time, she would put forth an expert to testify concerning the potential effect of separating the young child from mother for a continuous two-week period each month. Mother testified that her child from a previous relationship had had a similar schedule when she was young and that it was too detrimental for a child of that age. The trial judge expressed that she could not understand why such a schedule could not be done in this case if it had been done for mother's elder child. The trial court ultimately ordered the two-week rotating schedule, finding that the schedule was in the child's best interests.
A trial court does not have "authority to rule on matters that were 'not the subject of appropriate pleadings and notice.'" Flemming v. Flemming, 742 So.2d 843, 844 (Fla. 1st DCA 1999) (holding that the trial court abused its discretion when it ordered a rotating custody arrangement not raised by the pleadings and not tried by consent) (quoting Lamelas v. Granados, 730 So.2d 387, 388 (Fla. 2d DCA 1999)). "[A] party's due process rights are violated when a party is not given notice that the trial court would consider an issue or opportunity to be heard on the matter." Bainbridge v. Pratt, 68 So.3d 310, 314 (Fla. 1st DCA 2011). Mother was not given notice in the pleadings that a two-week rotating schedule would be considered or an opportunity to put on witnesses concerning the effect of such a schedule. And the issue of a two-week rotating schedule was not tried by implied consent because mother raised a proper objection. Indeed, the trial court noted mother's objection and advised mother's counsel that the trial court would review proposed orders from counsel and then schedule another conference with the attorneys. But a conference with the attorneys was never scheduled. Instead, the trial court entered the order granting timesharing on a two-week rotating schedule. Because the issue was not raised in the pleadings and not tried by consent, the trial court violated mother's right to due process and abused its discretion when it ordered timesharing on a two-week rotation.
Furthermore, there was no competent, substantial evidence to support the trial court's finding that the two-week rotating schedule would be in the child's best interests. See Bainbridge, 68 So.3d at 312-14 (reversing a trial court's order of an annual rotating timesharing schedule where there was no evidence supporting the finding that the schedule was in the best interests of the child). Mother's proposed weekly rotation plan would have involved the same amount of travel on the part of the minor child. The only potential negative impact on the child in mother's proposed plan that was not also present in the two-week rotation was one week per month spent in a hotel with father in Miami as opposed to a residence. The two-week rotation would necessitate a continuous two-week period of separation per month for a child of a very young age. One of the factors a trial court must consider in determining a child's best interests is "[t]he developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs." Fla. Stat. § 61.13(3)(s). It is unclear why the trial court considered this length of separation to be in the child's best interests. The principal benefit of the two-week rotating schedule over mother's proposed plan appears to be less travel time for the parents (as opposed to the child).
For the foregoing reasons, we reverse the trial court's order and remand this cause to the trial court for further proceedings in accordance with this opinion.
REVERSED and REMANDED.
LEWIS and ROWE, JJ., concur.