Emran cites a series of cases in his brief supporting his contention that a court lacks jurisdiction to grant judgment on a claim not raised in pleadings or tried with the express or implied consent of the parties. See, e.g., Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168 (1st Cir. 1995) (finding that district court lacked authority in a sexual harassment case to enter judgment on a cause of action neither pleaded in the complaint nor expressly or impliedly raised during trial); Cricket Commc'ns, Inc. v. Trillium Indus., 235 S.W.3d 298 (Tex. Ct. App. 2007) (denying attorney fee claim in bankruptcy case where pleadings did not assert claim for attorney fees); Walls v. Sebastian, 914 So.2d 1110 (Fl. Dist. Ct. App. 2005) (refusing to modify parent's children visitation schedule where issue not raised in pleadings); In re Custody of C.S.F., 232 Mont. 204, 755 P.2d 578 (Mont. 1988) (concerning child visitation schedule modification). Since none of these cases involve divorce proceedings, they are only persuasive under the rationale that divorce and non-divorce cases are subject to the same pleading requirements.
Thus, the magistrate erred in introducing evidence of the parties' changed financial circumstances and awarding relief that was not requested. See Escobar v. Escobar, 76 So.3d 958, 960–61 (Fla. 4th DCA 2011) (holding the trial court erred in awarding relief not requested by changing the child support payment terms where the former husband petitioned for a modification based only on two children reaching majority and not alleging any ambiguity in the parties' marital settlement agreement regarding payment terms); Walls v. Sebastian, 914 So.2d 1110, 1111 (Fla. 4th DCA 2005) (holding that “[a] trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings” and reversing the trial court's modification of the former husband's visitation schedule because “neither party requested a change in the timesharing arrangement”). Secondly, the magistrate's report states that the former wife's testimony as to her income was rejected as both unreliable and untruthful based upon the magistrate's thirty years' personal experience obtaining nail services throughout Palm Beach County as well as the magistrate's presiding over other domestic relations cases involving nail technicians.
Thus, the magistrate erred in introducing evidence of the parties' changed financial circumstances and awarding relief that was not requested. See Escobar v. Escobar, 76 So. 3d 958, 960-61 (Fla. 4th DCA 2011) (holding the trial court erred in awarding relief not requested by changing the child support payment terms where the former husband petitioned for a modification based only on two children reaching majority and not alleging any ambiguity in the parties' marital settlement agreement regarding payment terms); Walls v. Sebastian, 914 So. 2d 1110, 1111 (Fla. 4th DCA 2005) (holding that "[a] trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings" and reversing the trial court's modification of the former husband's visitation schedule because "neither party requested a change in the timesharing arrangement"). Secondly, the magistrate's report states that the former wife's testimony as to her income was rejected as both unreliable and untruthful based upon the magistrate's thirty years' personal experience obtaining nail services throughout Palm Beach County as well as the magistrate's presiding over other domestic relations cases involving nail technicians.
Contrary to the lower court's findings, neither party had raised an issue of visitation, nor had the parties argued it by consent at the hearing. See Walls v. Sebastian, 914 So.2d 1110 (Fla. 4th DCA 2005). Because all parties were by then residing in Virginia, it is questionable whether the circuit court would have had jurisdiction to reach the issue:, had it been raised.
As such, rehearing is denied. See Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001); see also Walls v. Sebastian, 914 So.2d 1110 (Fla. 4th DCA 2005); Utterback v. Utterback, 861 So.2d 465 (Fla. 3d DCA 2003). Former husband is not limited in seeking modification in a new proceeding if justified by the current facts and circumstances of the parties.