Krift v. Obenour

• Decision Date: 05 November 2014
• Docket Number: No. 4D13–1151.,4D13–1151.
• Citation: 152 So.3d 645
• Parties: Anna Louise KRIFT, Appellant, v. Daryl Dean OBENOUR, Appellee.
• Court: Florida District Court of Appeals

152 So.3d 645

Anna Louise KRIFT, Appellant

v.Daryl Dean OBENOUR, Appellee.

No. 4D13–1151.

District Court of Appeal of Florida, Fourth District.

Nov. 5, 2014.

Rehearing Denied Jan. 14, 2015.

Bennett S. Cohn, West Palm Beach, for appellant.

Robin Bresky and Jonathan Mann of the Law Offices of Robin Bresky, Boca Raton, for appellee.

Opinion

TAYLOR, J.

The former wife appeals an amended final judgment of dissolution that ordered a rotating timesharing schedule which required the minor child to move every two months between the mother's and father's homes. She argues that the trial court violated her due process rights by ordering the rotating schedule, because neither party pled for or requested it and she had no opportunity to present evidence concerning the timesharing plan. Because the rotating timesharing plan ordered by the trial court was such a material departure from the plan the parties requested, we reverse and remand for further proceedings on this issue. The former husband cross-appeals, arguing that the trial court erred by classifying the credit card debt that he incurred during his marriage as non-marital debt. For reasons stated below, we affirm the cross-appeal.

The parties were married in November 2009. They had one child during the marriage, born in February 2010. During the marriage, the former husband commuted between the home they shared in Lake Worth and his job in Bahia Honda in the Florida Keys. When they separated in 2010, the former husband moved to Bahia Honda. The parties agreed on a timesharing plan wherein the former husband had the child for three overnights at his home in Bahia Honda and the former wife had the child for four overnights in Lake Worth. During this exchange, the child traveled an average of 400 miles a week roundtrip from Lake Worth to Bahia Honda.

At trial, the former wife requested that the trial court order the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart). Under the terms of that plan, the child would live with a primary residential parent during the week and spend every other weekend with the secondary residential parent. The former husband requested that their timesharing plan remain the same, with the child traveling between Lake Worth and Bahia Honda each week. He suggested that when the child enrolled in kindergarten, in either Bahia Honda or Lake Worth, the secondary residential parent move within fifty miles so that they could continue equal timesharing.

The trial court entered a Final Judgment of Dissolution of Marriage with a rotating timesharing plan requiring the child to spend two months with each parent. During those two months, the non-custodial parent would be allowed weekly daytime visitation with the child. Both parties filed motions for rehearing for a determination as to who would be the primary residential parent once the child reached kindergarten age. In her Motion for Rehearing and/or Clarification, the former wife also questioned why the trial court implemented a two-month rotating schedule instead of the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart).

The trial court denied the former wife's Motion for Rehearing and/or Clarification but granted the former husband's motion. The court issued an Amended Final Judgment designating the former husband as the primary residential parent once the child reaches kindergarten age. The court also ordered implementation of the Model Parental Timesharing Plan at that time.

On appeal, the former wife argues that the trial court erred by ordering a rotating timesharing plan that neither party requested in their pleadings or at any time during trial. She also argues that the trial court's decision regarding the child's residence upon reaching kindergarten age was an impermissible prospective relocation of the child.

A trial court's timesharing and parenting plan determination is reviewed for an abuse of discretion. Winters v. Brown, 51 So.3d 656, 658 (Fla. 4th DCA 2011).

“[U]nder Florida Law a trial court may not order an annual, rotating time-sharing where neither parent requested such a plan in the pleadings, nor argued for the plan at the final hearing.” Bainbridge v. Pratt, 68 So.3d 310, 314 (Fla. 1st DCA 2011) ; see also Flemming v. Flemming, 742 So.2d 843, 844 (Fla. 1st DCA 1999) (“The trial court did not have authority to rule on matters that were ‘not the subject of appropriate pleadings and notice.’ ”).

In Bainbridge, the appellate court reversed an annual rotating timesharing plan ordered by the trial court because it had not been requested by either parent in the pleadings or at the final hearing. 68 So.3d at 314. The first time a rotating schedule was mentioned was when the trial judge stated, “I think I am going to do something which I think is in [the minor child's] best interests. You both may not be happy with my decision.” Id. at 315. The court held that due process concerns required a reversal of the trial court's decision. Id.

In Flemming, the court reversed an order with a weekly rotating timesharing plan because the plan was not raised by pleadings or agreed upon by the parties. 742 So.2d at 844. Before trial, the parties stipulated that the mother would be the primary residential parent and the father would be the secondary residential parent. Id. However, at trial, the father requested that the children live an equal amount of time with each parent on alternating weeks. Id. The mother objected to the arrangement because it was not raised in the pleadings. Id. Nevertheless, the trial court ordered the rotating schedule. Id.

In this case, both parties agree that neither one of them requested the two-month rotating schedule in their pleadings or at any time during the trial. They both lacked notice that the trial court would consider such an arrangement. At the time of trial, the parties were engaged in a timesharing schedule whereby they split the week. The former wife had the child for four overnights and the former husband had the child for three overnights. The former husband requested that the timesharing schedule remain the same until the child reached kindergarten age. The former wife requested that the court order the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart). This plan is designed around a primary residential parent and a secondary residential parent, with the child spending weekends with the secondary residential parent twice a month.

Similar to Bainbridge, the first time that a two-month rotating schedule was mentioned was at the end of the trial, when the court expressed concerns about the child traveling back and forth over 400 miles several times a month. To address those concerns, the court stated that it would be considering longer periods of time with each parent—such as blocks of months. Neither party had the opportunity to present evidence or arguments as to whether this arrangement was in the best interest of the child. Because the two-month rotating timesharing plan established by the trial court was such a significant departure from the timesharing schedule requested by the parties in their pleadings and at trial, we agree that the trial court erred in ordering it. The wife's due process rights were violated because she was not given notice that the trial court would consider the two-month rotating schedule and was not given the opportunity to present evidence on the issue. See Moore v. Wilson, 16 So.3d 222, 224 (Fla. 5th DCA 2009) (holding that the trial court's order for rotating custody violated the parties' due process rights where neither party pled for or requested rotating custody).

Accordingly, we reverse and remand for further proceedings on the timesharing schedule. Both parties contest the mileage reimbursement awarded the former wife for timesharing travel. On...