KELSEY COCKRELL, APPELLANT,
v.
TYLER H. KINNETT, APPELLEE
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The Florida Fifth District Court of Appeal reversed a trial court's modification of a child timesharing schedule that was ordered as part of a contempt ruling. The court held that the father failed to provide proper notice to the mother that a modification would be considered, as he did not file a supplemental petition for modification as required by the parties' settlement agreement.
The court reversed, holding that it was error for the trial court to modify the timesharing schedule. The father was entitled to modification only if he pled and proved both a substantial change of circumstances and that the change would be in the child's best interests, and he was required to file a supplemental petition for modification. Because he failed to do so, the mother was not placed on proper notice that modification would be considered at the contempt hearing.
[1] A party seeking modification of a timesharing schedule must plead and prove a substantial change in circumstances and that the modification is in the child's best interes…
[2] A motion for contempt does not, by itself, provide proper notice that a modification of a timesharing schedule will be considered.
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Join FLexlaw to unlock all legal intelligence“The father was only entitled to a modification of the timesharing schedule if he pled and proved: (1) a substantial change of circumstances had occurred since entry of the final judgment of paternity; and (2) the requested change would be in the best interests of the child.”
Establishes the legal standard for modifying timesharing arrangements in family law
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Join FLexlaw to unlock all legal intelligenceThe parties entered into a settlement agreement and final judgment of paternity on December 10, 2013, establishing that the mother would have primary …
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Kelsey Cockrell (the mother) appeals from an order on a motion for contempt that provided, inter alia, for a modification of the parties’ timesharing schedule for their two-year-old child. We reverse because the mother was not placed on proper notice that a modification of the timeshar-ing schedule would be at issue.
Pursuant to the parties’ settlement agreement, a final judgment of paternity was entered on December 10, 2013. The settlement agreement recognized that Tyler Kinnett (the father), was a member of the United States military and stationed in California. The agreement provided that the child would live primarily with the mother (in Florida) and that any substantial change to the parenting plan “must be. sought through the filing of a supplemental petition for modification.”
On October 22, 2014, the father filed a motion for contempt, alleging that the mother had wrongfully prevented him from exercising his timesharing rights with the child on three separate occasions. The motion did not allege that there had been a substantial change in circumstances, or that a modification would be in the child’s best interest. Although the father requested a modification of the timesharing arrangement in the body of the motion, no such request was made in the prayer for relief. Most significantly, the father did not file a supplemental petition for modification.
The father subsequently served a notice of hearing, requesting that thirty minutes be set aside for a hearing on his motion for contempt. After a brief evidentiary hearing, the trial court entered its order of contempt, finding that the mother had failed to adhere to the requirements of the parenting plan and awarding the father attorney’s fees and costs.1 The order further provided that the timesharing schedule would be modified with each party having “rotating time with the minor child by three (3) month[s] on, three (3) month[s] off basis.”' This rotation was to continue until the child was enrolled in school or until further order of the court.
The father was only entitled to a modification of the timesharing schedule if he pled and proved: (1) a substantial change of circumstances had occurred *1043since entry of the final judgment of paternity; and (2) the requested change would be in the best interests of the child. See Baker v. Baker, 157 So.3d 491, 492 (Fla. 5th DCA 2015); Clark v. Clark, 35 So.3d 989, 990-91 (Fla. 5th DCA 2010). Here, the father failed to file a supplemental petition for modification. Indeed, he failed to file any motion or pleading that alleged a substantial change of circumstances or that modification would be in the best interests of the child. As a result, the mother was not placed on proper notice that a modification of the prior timesharing determination would be considered at the hearing on the motion for contempt. See Baker, 157 So.3d at 492.
We conclude, accordingly, that it was error for the trial court to modify the timesharing schedule set forth in the parenting plan.
REVERSED and REMANDED.
BERGER and WALLIS, JJ., concur.
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Duncan v. Thalia Tatham Brickman, 233 So. 3d 477 (Fla. 2d DCA 2017)…y alleged and proven a substantial change in circumstances, that the minor child’s best interests required the modification, and that sufficient notice of the proposed modification was afforded to the nonmoving party. See, e.g., Cockrell v. Kinnett, 177 So. 3d 1041, 1042-43 (Fla. 5th DCA 2015); Campbell v. Campbell, 100 So. 3d 763, 765 n.3 (Fla. 4th DCA 2012).…
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Authorities Cited
- Clark v. Clark, 35 So. 3d 989 (Fla. 5th DCA 2010)
- Baker v. Baker, 157 So. 3d 491 (Fla. 5th DCA 2015)