NICKOEL TARTER, APPELLANT,
v.
JASON TARTER, APPELLEE
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Former wife appeals an order modifying primary residential custody to a rotating arrangement that was imposed during a hearing on a contempt motion. The Florida First District Court of Appeal reversed, holding that due process requires proper notice and evaluation of statutory custody factors when custody modifications are sought.
The court reversed the custody modification, holding that due process requires adequate notice that custody modification is being sought and that the trial court must evaluate the statutory factors under section 61.13(3), Florida Statutes, when modifying custody, even in the context of a contempt proceeding.
[1] A trial court may not modify a custody order at a hearing on a suggestion of contempt if the notice of hearing does not advise the parties that a modification of custody…
[2] A party is denied due process when a trial court modifies primary residential custody and visitation at a hearing on a suggestion of contempt, absent proper notice and al…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court did not evaluate the factors affecting the welfare and interest of the child as required by section 61.13(3), Florida Statutes (2006)”
Establishes that statutory evaluation of custody factors is mandatory even in contempt proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe former husband filed a Suggestion of Contempt against the former wife and requested a change of custody in his prayer for relief. The amended noti…
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PER CURIAM.
. Nickoel Tarter (the former wife) appeals an order denying the Suggestion of Contempt filed, by Jason Tarter (the former husband), appellee, and modifying the parties’ temporary custody order to require rotating custody. She contends that the trial court denied her due process of law when the court modified primary residential custody and visitation at a hearing on the former husband’s Suggestion of Contempt. We agree and reverse.
The former husband filed a Suggestion of Contempt, not a petition to modify custody. Although he requested a change of custody in his prayer for relief in the Suggestion of Contempt, he did not allege facts to support the trial court changing the .primary residential parent for the parties’ minor child. Notably, there was no allegation that a change of custody would be in the child’s best interest. See Pelliccia v. Arce, 867 So. 2d 619, 620 (Fla. 2d DCA 2004).
Moreover, the amended notice of hearing stated only that the contempt motion would be heard and did not advise the former wife that a modification of custody was being sought. See Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)(reversing an order which transferred child custody and canceled the husband’s child support obligation where the notice for hearing stated that the court would entertain a motion for contempt).
At the hearing on the contempt motion, when the trial court advised the parties that it was contemplating a change in custody, the former wife immediately objected on due process grounds. Although the trial court did state that it was changing custody “in the best interest of the minor child,” the trial court did not evaluate the factors affecting the welfare and interest of the child as required by section 61.13(3), Florida Statutes (2006). See Burckle v. Burckle, 915 So. 2d 747, 749 (Fla. 2d DCA 2005)(reversing change of custody as a sanction for contempt where contempt motion did not put former husband on notice that custody was at issue and trial court did not evaluate section 61.13(3) factors).
Accordingly, the cause is REVERSED and REMANDED for proceedings consistent with this opinion.
WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.
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Citator
Cited By
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Andre v. Abreu (Fla. 3d DCA 2019)…ro v. De Castro, 957 So. 2d 1258, 1259- 61 (Fla. 3d DCA 2007) (concluding that modification of a timesharing plan is inappropriate as a sanction for contempt); see also Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017); Tarter v. Tarter, 960 So. 2d 862, 863-64 (Fla. 1st DCA 2007). At the time the Order was entered, there was no pending petition to modify or finding made that modification was in the best interest of the minor. See De Castro, 957 So. 2d at 1261 (citing Pelliccia v. Arce, 867 So. 2d…
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Andre v. Abreu (Fla. 3d DCA 2019)…ro v. De Castro, 957 So. 2d 1258, 1259- 61 (Fla. 3d DCA 2007) (concluding that modification of a timesharing plan is inappropriate as a sanction for contempt); see also Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017); Tarter v. Tarter, 960 So. 2d 862, 863-64 (Fla. 1st DCA 2007). At the time the Order was entered, there was no pending petition to modify or finding made that modification was in the best interest of the minor. See De Castro, 957 So. 2d at 1261 (citing Pelliccia v. Arce, 867 So. 2d…
Authorities Cited
- Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)
- Burckle v. Burckle, 915 So. 2d 747 (Fla. 2d DCA 2005)
- Leonard v. State, 867 So. 2d 619 (Fla. 2d DCA 2004)
- Pelliccia v. Arce, 867 So. 2d 619 (Fla. 2d DCA 2004)