Opinion
No. 1D20-3231
07-19-2021
Nishita K. PATEL, Appellant, v. Jaimin B. PATEL, Appellee.
Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellant. Michael T. Webster of Michael T. Webster, P.A., Shalimar, for Appellee.
Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellant.
Michael T. Webster of Michael T. Webster, P.A., Shalimar, for Appellee.
Per Curiam.
Appellant, the Former Wife, challenges a portion of an order modifying a final judgment of dissolution of marriage. She argues that the trial court erred in modifying the parties’ time-sharing for their minor children. We agree and reverse because the Former Husband did not show a substantial, material, and unanticipated change in circumstances, the Former Husband did not initiate the proceedings with an appropriate pleading, and the trial court order did not contain the necessary findings of fact.
I
The parties’ marriage was dissolved in 2016. They had two minor children. The time-sharing plan called for the Former Wife to have majority time-sharing and gave the Former Husband a specific time-sharing plan of alternating weekends, Wednesday evenings, and a standard holiday/summer time-sharing schedule. In 2019, the Former Husband filed a "Motion for Contempt and Enforcement and Motion for Appointment of Parenting Coordinator." In this motion, the Former Husband alleged that his schedule as an emergency room doctor made it extremely difficult for him to align the weekends where he did not work with those granted by the parenting plan. He also claimed that the Former Wife did not cooperate with adjustments to his work schedule. The Former Husband requested that the court appoint a parenting coordinator to work with the parties to adjust—but not expand—the Former Husband's time-sharing plan.
After a hearing on the motion, the trial court ruled that the Former Husband would be allowed to change one of his alternating weekends every month, provided he gave the Former Wife six weeks advance notice. Neither the trial court's oral pronouncement nor its written order contained any findings that there had been a substantial, material, and unanticipated change in circumstances or that the modification was in the best interests of the children.
II
A trial court's order modifying a parenting plan and time-sharing schedule is reviewed for an abuse of discretion. Wade v. Hirschman, 903 So. 2d 928, 935 (Fla. 2005).
First, Florida Family Law Rules of Procedure 12.110(h) requires that any action to modify a shared parenting plan must be initiated by a supplemental petition for modification, not by a motion. In fact, this Court has held that a party seeking to change the "status quo" of a dissolution final judgment must do so by a supplemental petition with proper service of process, and that the failure to do so is reversible error. Clark v. Clark , 204 So. 3d. 589, 591 (Fla. 1st DCA 2016).
Here, the record shows that the trial court acknowledged that no supplemental petition had been filed and that the modification issues were not ripe for disposition. Despite that, the court decided to hear the matter anyway. This alone is grounds for reversal. The Former Husband's argument that a boilerplate statement in the wherefore clause of his motion provided sufficient notice to the Former Wife is unpersuasive. See Gear v. Gear , 205 So. 3d 835, 836–37 (Fla. 2d DCA 2016) (citing Wells Fargo Bank, N.A. v. Giesel , 155 So. 3d 411, 412–13 (Fla. 1st DCA 2014) ) (holding that a generic, boilerplate wherefore clause was insufficient to give adequate notice as to an issue not specifically pleaded). "And, more pertinent to the present discussion, ‘a motion is not a pleading.’ " Quillen v. Quillen , 247 So. 3d 40, 43 (Fla. 1st DCA 2018) (citations omitted).
Second, section 61.13(2)(c), Florida Statutes states that the court "shall determine all matters relating to parenting and timesharing of each minor child ... in accordance with the best interests of the child ... except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances." (emphasis added). Thus, "[t]o be entitled to modification of timesharing, the moving party "must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody." Hutchinson v. Hutchinson , 287 So. 3d 695, 696, (Fla. 1st DCA 2019) (quoting Korkmaz v. Korkmaz , 200 So. 3d 263, 265 (Fla. 1st DCA 2016).
Here, the basis for the modification request was that the Former Husband was an emergency room doctor with a varying schedule. Yet, the record does not establish that the Former Husband's current scheduling challenges are substantially different from his situation as reflected in the 2016 final judgment. Thus, there was no legal basis to modify the shared parenting plan. See Korkmaz at 265.
Likewise, the trial court's order lacks findings reflecting a substantial, material, and unanticipated change in circumstances or facts substantiating that the modification was in the best interests of the children. This Court has held that a trial court reversibly errs when it modifies a time-sharing agreement without evidence of a substantial change in circumstances and without facts that the modification was in the best interests of the minor children. See Holland v. Holland, 140 So. 3d 1155, 1157 (Fla. 1st DCA 2014). The record before us does not show any competent substantial evidence to support the trial court's decision. Thus, the order does not comply with the requirements of section 61.13(2)(c).
III
Accordingly, we hold that the trial court's decision to modify the parenting plan was an abuse of discretion.
REVERSED and REMANDED for further proceedings.
Rowe, C.J., and Roberts and JAY, JJ., concur.