194 So. 3d 1080
Fla. Dist. Ct. App.2016Background
- Golden and Bass are former spouses with a minor child; an existing timesharing order was in place.
- Bass filed a petition for modification seeking to be primary residential parent and filed separate motions for enforcement, contempt, and psychological evaluation; only the motions (not the modification petition) were noticed for hearing.
- At the hearing, Bass’s counsel twice stated the modification petition was not before the court but also sought a temporary change of residence for Bass.
- The trial court denied Bass’s enforcement/contempt/psych evaluation motions but then ordered, sua sponte and temporarily, that Bass become the child’s primary residential parent through the spring semester.
- The First DCA reversed, holding the temporary custody change deprived Golden of due process because the change was not pleaded or noticed and she had no opportunity to present evidence or prepare witnesses.
Issues
| Issue | Golden's Argument | Bass's Argument | Held |
|---|---|---|---|
| Whether the court could order a temporary change of primary residential parent without notice that modification was at issue | Court lacked authority to modify custody on issues not noticed; deprivation of due process | The change was permissible as make-up timesharing or was tried/waived by Golden | Reversed: court violated Golden’s due process by adjudicating unnoted modification |
| Whether Golden waived objection by litigating at the hearing | No waiver—she was prejudiced and lacked opportunity to prepare witnesses/evidence | Bass argued implied consent by Golden’s participation | Rejected: implied consent requires no unfair prejudice and fair opportunity to defend; that was absent |
| Whether trial court could treat relief as make-up timesharing without findings | No evidence or findings supported make-up days; trial court had found no contempt or willful violation | Bass characterized remedy as make-up timesharing | Rejected: no factual basis or ruling supported make-up-timesharing relief |
| Standard for changing primary residential parent on remand | Any modification requires a showing of significant inadequacy by custodial parent, not merely a better environment | Not materially disputed | Court noted applicable standard: must show significant inadequacy in custodial parent's care |
Key Cases Cited
- Neumann v. Neumann, 857 So. 2d 372 (Fla. 1st DCA 2003) (trial court cannot adjudicate issues not presented by pleadings or noticed to parties)
- Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998) (modifying custody or support without notice violates due process)
- Worthington v. Worthington, 123 So. 3d 1189 (Fla. 2d DCA 2013) (reversal where modification was not part of hearing notice)
- Smith v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2007) (trial by implied consent requires absence of unfair prejudice and opportunity to present evidence)
- Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011) (change of primary residence requires showing of significant inadequacy in custodial parent's care)
- Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996) (same standard: significant inadequacy required for custody change)