THERESE CANO N/K/A THERESE MASTERS, APPELLANT/CROSS-APPELLEE
v.
ALEJANDRO CANO, APPELLEE/CROSS-APPELLANT
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The court held that the trial court abused its discretion by ordering children to attend public school when that relief was not sought in the father's petition for modification.
The father petitioned for modification of a parenting plan, seeking majority time-sharing. The trial court, in a supplemental final judgment, ordered …
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James H. Sullivan, III (Gainesville), for Home School Legal Defense Association, as amicus curiae.
Therese Cano n/k/a Therese Masters (the “mother”) appeals from a supplemental final judgment on petition for modification of parenting plan, arguing that the trial court abused its discretion in ordering the children to attend public school. We agree and reverse solely on that ground.1
*652The mother is correct that the father did not seek a modification of the final judgment of dissolution to provide that the children attend public school. Indeed, in his petition for modification, the father requested “that the court modify the time-sharing and allow the Father to have the majority of the timesharing with the children in Miami, Florida.” As such, it is undisputed that the father’s petition did not request that the children attend public school rather than continue with homeschooling.
“[T]he general rule is that a court cannot determine ‘matters not noticed for hearing and not the subject of appropriate pleadings.’” Hart v. Hart, 458 So.2d 815, 816 (Fla. 4th DCA 1984) (quoting Fickle v. Adkins, 394 So.2d 461, 462 (Fla. 3d DCA 1981)). To grant unrequested relief is an abuse of discretion. Abbott v. Abbott, 98 So.3d 616 (Fla. 2d DCA 2012).
In this case, neither party was advised that the hearing in question would result in a permanent determination involving the children’s schooling. Accordingly, we reverse the order in question and remand with directions to the trial court to conduct a final hearing after due notice on the issues pertaining to the education of the children in accordance with Florida’s shared responsibility law.2
REVERSED AND REMANDED.
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Authorities Cited
- Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984)
- Allstate Ins. Co. v. Anderson, 394 So. 2d 461 (Fla. 3d DCA 1981)
- Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981)
- Abbott v. Abbott, 98 So. 3d 616 (Fla. 2d DCA 2012)
- Smith v. State, 98 So. 3d 616 (Fla. 1st DCA 2012)