Booth v. Hicks

• Decision Date: 18 March 2020
• Docket Number: Case No. 2D18-4651
• Parties: Olivia Kenisha BOOTH, n/k/a Olivia Kenisha Williams, Appellant, v. Christopher Glen HICKS, Appellee.
• Court: Florida District Court of Appeals

301 So.3d 369

Olivia Kenisha BOOTH, n/k/a Olivia Kenisha Williams, Appellant,

v.Christopher Glen HICKS, Appellee.

Case No. 2D18-4651

District Court of Appeal of Florida, Second District.

Opinion filed March 18, 2020.

Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.

Christopher Glen Hicks, pro se.

SALARIO, Judge.

Olivia Kenisha Williams (the Mother) appeals from an amended final judgment granting Christopher Glen Hicks (the Father) sole parental responsibility of and exclusive timesharing with their child. She argues that the trial court (1) denied her due process by granting the Father relief he did not request and (2) erroneously resolved questions of parental responsibility and timesharing based solely on her failure to appear at the final hearing. We reverse and remand for further proceedings.

The Mother and the Father are not married, and they have never lived together. The child has for the most part lived with the Mother since he was born in 2009. In January 2019, the Father filed a petition to establish parental responsibility and a parenting plan. The petition requested both that parental responsibility be shared by the Father and the Mother and that the court adopt a parenting plan that gave timesharing to the Mother on weekdays and to the Father on weekends, alleging that both were in the best interests of the child. The Mother responded with her own parenting plan, in which she requested sole parental responsibility.

The trial court held a final hearing on October 25, 2018. The Mother did not appear. The trial court heard testimony from the Father and two of his relatives, and it received into evidence several text messages between the Father and the Mother. The trial court found that the Father had arranged for the child to be enrolled in a new school and had been diligent in petitioning the court for timesharing. Without any further findings, the trial court concluded that shared parental responsibility would be detrimental to the child. It awarded sole parental responsibility and exclusive timesharing to the Father. The Mother filed an emergency motion for rehearing, which the trial court denied. The trial court then issued an amended final judgment, which specified that it had made the parental responsibility and timesharing determinations based solely on the fact that the Mother failed to appear at the hearing. The Mother filed another motion for rehearing, which the trial court again denied.

In this timely appeal, the Mother first argues that the trial court erred and violated her due process rights by granting the Father more parental responsibility and timesharing than he sought in his petition. We agree.

It is well-settled that a trial court violates due process and commits reversible error when it grants a party relief that the party did not request. See Daniels v. Sorriso Dental Studio, LLC, 164 So. 3d 778, 782 (Fla. 2d DCA 2015) (explaining that the trial court "also granted relief not requested by either of the parties, thereby violating Daniels' due process rights"); Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 871 (Fla. 2d DCA 2011) ("Thus, the final judgment providing relief that was not requested violated Land Development's due process rights, and its entry constituted reversible error on this basis alone."). This principle applies with equal force to orders that determine parental responsibility and timesharing. Perez v. Fay, 160 So. 3d 459, 464 (Fla. 2d DCA 2015) ("In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error." (quoting Worthington v. Worthington, 123 So. 3d 1189 (Fla. 2d DCA 2013) )). Accordingly, we have found reversible error in final judgments in which the trial court awarded shared responsibility to a father who did not request a change in parental responsibility, Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012), and in which the trial court awarded exclusive timesharing to a mother who only requested partial timesharing, Stover v. Stover, 287 So. 3d 1277, 1279 (Fla. 2d DCA 2020). See also Worthington, 123 So. 3d at 1191 (reversing where the father's modification petition was not noticed for hearing and did not seek the specific timesharing modifications that the trial court awarded).

In this case, the Father's petition only sought partial timesharing and shared parental responsibility. The trial court, however, granted the Father exclusive timesharing and sole parental responsibility. By granting the Father relief he did not request in his petition, the trial court violated the Mother's due process rights and abused its discretion. See Stover, 287 So. 3d at 1279 ; see also Blackwood v. Anderson, 664 So. 2d 37, 38 (Fla. 5th DCA 1995) (reversing an award of custody to the father where the mother failed to appear at the hearing because the record did not show that the father requested custody in his pleadings or that the mother was "sufficiently noticed as to the custody issue").

The Mother also argues that the trial court erred by terminating her timesharing with her child based solely on her failure to appear at the final hearing. A court may only modify timesharing or parental responsibility if the modification is in the best interests of the child.¹ § 61.13(3), Fla. Stat. (2018) ; Perez, 160 So. 3d at 465 ("[T]ime-sharing privileges should not be denied to either parent as long as the parent conducts himself or herself, while in the presence of the children, in a manner which will not adversely affect the children."). We have stated that "this consideration must govern even in the face of a party's procedural defaults or contumacious conduct." Rahall v. Cheaib-Rahall, 937 So. 2d 1223, 1225 (Fla. 2d DCA 2006) ("[A] parent's actions in the lawsuit cannot trump the child's right to have custody decided based on his or her best interests.").

As a result, a trial court cannot sanction a parent by modifying a custody order because doing so punishes the child for the parent's misconduct. Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017). And by extension, "[i]t has long been the rule in Florida that child custody should be decided based on the best interests of the children, not based on the default of one of the parents." Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998) ; see also Andrews v. Andrews, 624 So. 2d 391, 392 (Fla. 2d DCA 1993). Even when a parent fails to appear at a final...