DEJAH TAMIR JOHNSON

v.

BRANDON JAQUAN ROLLINS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DEJAH TAMIR JOHNSON, Appellant,

V.

BRANDON JAQUAN ROLLINS, Appellee.

No. 4D2026-0557 [October 7, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Lauren M. Alperstein, Judge; L.T. Case No. 062024DR021230AXXXCE.

Renita Henry of Renita Henry Law, PLLC, Fort Lauderdale, for appellant.

Brandon Jaquan Rollins, Lauderhill, pro se.

SHEPHERD, J.

Dejah Tamir Johnson (“the mother”) appeals from a final judgment of paternity and order ratifying a general magistrate's final recommended order in favor of Brandon Jaquan Rollins (“the father”). The mother raises five issues on appeal. For the reasons discussed below, we reverse and remand for a new trial on all issues raised in the father's petition and the mother's counterpetition.

Background

The father filed a petition to determine paternity and for the establishment of a parenting plan with shared parental responsibility, timesharing, and child support. The child had been living full-time with the mother, and the father never had an overnight with the child. The circuit court referred the father's petition to a general magistrate, who later scheduled a one-hour final hearing for January 29, 2026. After retaining counsel, the mother obtained leave to file an amended answer and counterpetition seeking relocation, parental responsibility, long-distance timesharing, and related relief.

On December 19, 2025—forty days before the final hearing—the mother filed a motion for continuance. The motion asserted, among other things, that counsel had preplanned travel on the trial date, the parties had not yet completed court-ordered mediation, and one hour was insufficient to try the pending parenting issues. The mother also asserted that she would be prejudiced if the case proceeded without counsel, and the father would not be prejudiced by a brief continuance. The mother had not previously sought a continuance.

The same day the motion was filed, the mother's counsel contacted the magistrate's office seeking a hearing. After the father advised that he opposed a continuance, the magistrate's office responded that its docket was entirely booked, and no hearing date was available before the January 29 final hearing. The motion was therefore set to be heard on January 29 at the same time as the final hearing.

On January 29, the mother and her counsel did not appear in person. They attempted to access the hearing remotely, but the magistrate did not permit a remote appearance. The magistrate denied the continuance and immediately proceeded with the final hearing without the mother or her counsel present. The father was the only witness at the hearing.

At the hearing's start, the father stated that he wanted “equal fair timesharing." He later reiterated that he was not requesting one hundred percent timesharing and was “not trying to take [his] son away" from the mother. The magistrate explained that equal timesharing was not feasible while the mother lived in Texas, and discussed the possibility of the child living primarily with the father. After an off-the-record break, the father stated that he would “take [the child] on 100 percent” and requested the child's return to Florida.

The magistrate's proposed final order recommended shared parental responsibility, but recommended giving the father the substantial majority of overnights (289 overnights per year), requiring the mother to exercise all her timesharing in Florida, designating the father's address for schoolboundary purposes, and requiring the child's return to Florida.

The circuit court entered a final order ratifying the magistrate's recommended order. The mother timely moved to vacate the final order, specifically arguing that she had filed the continuance motion forty days before trial, had unsuccessfully sought an earlier hearing, and had been arbitrarily deprived of a meaningful opportunity to be heard before the case proceeded to final hearing in her absence. The circuit court denied the motion to vacate.

Denial of Continuance Resulted in Manifest Injustice

A ruling on a motion for continuance is reviewed for abuse of discretion. Fry v. Fry, 255 So. 3d 873, 875 (Fla. 4th DCA 2018). “A denial of a continuance should not be reversed unless there has been an abuse of discretion clearly appearing in the record.” Cargile-Schrage v. Schrage, 908 So. 2d 528, 529 (Fla. 4th DCA 2005). In determining whether the denial constitutes an abuse of discretion, courts consider “whether the denial results in an injustice for the movant; whether the cause for the delay was unforeseen or whether the motion was based on dilatory tactics; and whether the opposing party would be prejudiced.” McPherson v. Samuel, 392 So. 3d 565, 567 (Fla. 4th DCA 2024) (citing Fleming v. Fleming, 710 So. 2d 601, 603 (Fla. 4th DCA 1998); Yaris v. Hartley, 128 So. 3d 825, 828 (Fla. 4th DCA 2013)).

The circumstances related to the mother's motion to continue compel reversal here. The motion was not based on dilatory tactics. The mother had not filed any prior motion to continue. She did not wait until the eve of trial to seek relief. She relied upon several valid factors in seeking a continuance, including her counsel's unavailability and the parties' failure to complete court-ordered mediation. She filed the continuance motion forty days in advance and immediately sought a hearing. Yet the magistrate advised that no hearing could be held at any point during those forty days, and set the hearing on the motion for the same date and time as the final hearing, despite the mother previously advising that her counsel could not appear in person on that date. That procedure effectively postponed any ruling until the very moment at which denial of the motion would require the mother to proceed immediately to trial. The magistrate's actions in not setting a date for the hearing or denying the motion without a hearing in advance of the trial date put the mother in a Catch-22 situation.

The denial of the continuance, in this scenario, resulted in an injustice for the mother. By deferring the continuance hearing until the time set for trial, the magistrate left the mother without a meaningful opportunity to obtain a ruling in advance and, if the motion were denied, to make arrangements to proceed at the final hearing. The magistrate could have denied the motion without a hearing and the mother would have known trial was certain to occur. See Nudel v. Flagstar Bank, FSB, 52 So. 3d 692, 694 n.3 (Fla. 4th DCA 2010) (“We are aware of no rule or law that requires a trial court to hear oral argument on a pretrial, non-evidentiary motion.”).

The magistrate further did not allow the mother and her counsel to appear remotely, although they tried to do so. When the magistrate denied the motion on January 29, the evidentiary hearing began immediately and proceeded without the mother or her counsel. The mother therefore did not testify, present evidence, cross-examine the father, or address the statutory best-interest factors before entry of a final judgment substantially altering the child's residence and the parties' timesharing.

Finally, the father would not have been prejudiced by a brief continuance. Although the father objected to the continuance, his barebones response did not elaborate any factors to establish prejudice. Given that the mother had been the child's sole caretaker and the father never had overnight timesharing or an established relationship with the child, a brief continuance would not have prejudiced the father. The concurrence suggests that the father would have been prejudiced by a continuance because the trial could have been postponed for up to one year. That speculation is not supported by the record. The trial court referred the case to the magistrate, who scheduled it for trial within four months of the case management conference. The four-month delay was to allow the parties to file a parenting plan, financial affidavits, and mandatory disclosures in addition to completing a parent education and family stabilization course.

While a magistrate remains free to control the manner in which its hearings are conducted and to grant or deny requests for continuance as well as requests for remote participation, that discretion is not unlimited. The error here arises from the combined circumstances: the mother filed the continuance motion well in advance of trial for valid and non-dilatory reasons, and promptly and unsuccessfully sought an earlier hearing. Instead, the motion was not heard, or denied without hearing, until the precise time set for trial when the mother and her counsel did not appear in person, which resulted in an immediate final evidentiary hearing without the mother or her counsel. Under those circumstances, the denial created the type of manifest injustice that constitutes an abuse of discretion. Yaris, 128 So. 3d at 828; McPherson, 392 So. 3d at 569-69.

The concurrence questions our application of the test for determining whether denial of the continuance in this manner resulted in an abuse of discretion. We disagree with the concurrence's characterization and reframing of our reasoning. We hold that the hearing officer abused its discretion, not based solely on the denial of the continuance, but rather on all the circumstances surrounding the mother's motion for continuance, injustice to the mother and a lack of prejudice to the father.

Relief Granted Was Not Requested in Pleadings, Nor Supported by Competent Substantial Evidence

In addition to this error, the magistrate's resulting timesharing determination provides an additional basis for reversal. Timesharing determinations are reviewed for abuse of discretion. Giacomaro v. Brossia, 396 So. 3d 222, 225 (Fla. 4th DCA 2024) (citing Alvares-Watters v. Watters, 387 So. 3d 327, 330 (Fla. 4th DCA 2024)). A trial court abuses its discretion “when the judicial action is arbitrary, fanciful, or unreasonable” such that no reasonable person “would take the view adopted by the trial court.” Id. (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)). We will not disturb a timesharing decision “unless there is no substantial, competent evidence to support the decision.” Winters v. Brown, 51 So. 3d 656, 658 (Fla. 4th DCA 2011).

Section 61.13(2)(c)1., Florida Statutes (2025), regulates the imposition of child support and timesharing determinations:

Unless agreed to by the parties, there is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the minor child. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact when creating or modifying a time-sharing schedule.

§ 61.13(2)(c)1., Fla. Stat. (2025).

Here, the magistrate changed the child's primary residence without a request to do so or notice that such a determination was contemplated. This was error. See Romero v. Brabham, 300 So. 3d 665, 668 (Fla. 4th DCA 2020) (“Courts are not authorized to award relief not requested in the pleadings.") (quoting Stover v. Stover, 287 So. 3d 1277, 1279 (Fla. 2d DCA 2020) (internal citations omitted). “To grant unrequested relief is an abuse of discretion and reversible error.” Abbott v. Abbott, 98 So. 3d 616, 617– 18 (Fla. 2d DCA 2012) (internal citations omitted). In Abbott, our sister court concluded that the trial court erred in awarding the father shared parental responsibility when father did not plead for a change in parental responsibility and the issue was not raised at the hearing. See also Davis v. Lopez-Davis, 162 So. 3d 19, 21 (Fla. 4th DCA 2014) (concluding that the trial court erroneously awarded the wife relief which she did not request by denying the husband visitation); Buschor v. Buschor, 252 So. 3d 833, 834–35 (Fla. 5th DCA 2018) (concluding that the trial court violated the former wife's due process rights by awarding the former husband relief beyond the equal timesharing he requested, without notice that the child's primary residence or timesharing arrangement could be modified); Escobar v. Escobar, 76 So. 3d 958, 961 (Fla. 4th DCA 2011) (holding the trial court erred in awarding relief not requested in the pleadings when it modified child support payment terms); Cardinal Inv. Grp., Inc. v. Giles, 813 So. 2d 262, 263 (Fla. 4th DCA 2002) (“[C]ourts are not authorized to grant relief not requested in the pleadings.”); Maras v. Still, 927 So. 2d 192, 193 (Fla. 2d DCA 2006) (ruling that former wife's due process rights were violated when trial court awarded relief not requested in former husband's pleading and former wife was without notice of the possible outcome). The instant case was particularly egregious by providing relief not requested when the mother was not present.

The father's petition did not request that he receive the substantial majority of overnights or that the mother's timesharing be restricted to Florida. His attached proposed parenting plan did not identify a timesharing schedule. And at the final hearing, the father repeatedly sought equal timesharing and expressly stated that he was not asking to take the child away from the mother. Only after the general magistrate had explained that equal timesharing could not work while the mother lived in Texas, and had discussed the child living with the father, did the father state that he would take the child “100 percent.” Because the mother was absent, the expanded request could not have been tried by consent. On this record, the award of substantial-majority timesharing was relief not fairly presented by the father's pleadings and should not have been granted. See Davis, 162 So. 3d at 21; Stover, 287 So. 3d at 1279.

Further, adding to the error of awarding timesharing not pleaded for, the timesharing ordered was not supported by competent substantial evidence. We will not sustain a timesharing determination unsupported by competent substantial evidence. See Giacomaro, 396 So. 3d at 225 (ruling that a timesharing decision will not be disturbed on appeal if supported by competent, substantial evidence). Section 61.13, Florida Statutes (2025), requires the court to determine timesharing in accordance with the child's best interests by evaluating the statutory factors. § 61.13(2)(c), (3), Fla. Stat. (2025).

Here, only the father testified. The recommended order itself acknowledged the lack of testimony concerning many statutory factors, including the child's stable environment and continuity, the parents' moral fitness and health, and the child's home, school, and community record. As to the father's ability to assume the substantial majority of overnights, the evidence showed: he did not have a bed for the child; he was unsure of the child's grade and the school the child would attend; his work hours fluctuated; and he did not know whether his employer would permit the schedule necessary to pick the child up from school each day. Yet the order required the child to leave the mother's care, return from Texas to Florida, enroll in the father's school district, and spend 289 overnights per year with the father after previously not living with the father at all. In sum, the circuit court erred in adopting the magistrate's findings and recommendations, which were not supported by competent substantial evidence.

Accordingly, we reverse the final judgment and remand for a new trial on all issues raised in the father's petition and the mother's counterpetition.

Reversed and remanded.

COATES, JR., HOWARD K., Associate Judge, concurs.

LOTT, J., concurs separately with opinion.

LOTT, J., concurring.

I agree that reversal is the correct result. My reasoning is a bit different from the majority's.

A. The magistrate abused her discretion in the management of, rather than the denial of, the motion to continue.

First, the majority correctly finds the magistrate abused her discretion in denying the continuance. However, the error was not in the denial itself, but in the management of the magistrate's docket.

The mother filed the motion forty days before trial. The magistrate stated that she had no available time for hearing before the trial, and set the motion for hearing contemporaneously with the trial, in person.

What was the mother meant to do? If the mother had shown up and the magistrate granted her requested continuance, she would have had to needlessly prepare for trial and to cancel the very travel plans that caused her to ask for a continuance.

A motion for a continuance is a matter soundly within the discretion of a trial court; such a motion does not require supporting evidence to oppose. If the magistrate were inclined to deny the motion, the magistrate could have denied the motion on its face without a hearing. See 12170 CWELT-2007 LLC v. Green Tree Servicing, LLC, 435 So. 3d 1044, 1048 (Fla. 4th DCA 2026) (“Where a motion is legally insufficient on its face (whether or not the motion purports to require evidence), a court may generally deny the motion without oral argument or without a written response from the opposing party.”). In this case, the magistrate would have been well within her discretion to deny the motion, had she done so meaningfully in advance of trial.

If the magistrate truly did not have time on her docket in the forty days before trial for a less-than-five-minute remote hearing on the matter, and she wished to hear a response, she could have ordered a written response and ruled on the papers. Id. (“[I]f the opposing party provides, or at least has the opportunity to provide, a written response, the court may grant a legally sufficient motion that does not turn on evidence without having oral argument on the motion.").

By instead setting the matter for hearing contemporaneously with the trial, the magistrate effectively denied the motion without ever passing on it. The mother could not practically obtain a continuance even if her motion demonstrated that a continuance was appropriate. That was an abuse of the magistrate's (considerably broad) discretion in managing her docket. Cf. Julia v. Julia, 146 So. 3d 516, 522 (Fla. 4th DCA 2014) (“While courts have broad authority to control their dockets, trial judges must use this authority to ‘manage their courtrooms so that the people's business may be conducted fairly, efficiently, and expeditiously.” (quotations and citation omitted); Equal Emp. Opportunity Commʼn v. STME, LLC, 938 F. 3d 1305, 1321 (11th Cir. 2019) (“Although district courts enjoy broad discretion in deciding how best to manage the cases before them, that discretion is not unfettered.” (citation omitted)).

In other words, the denial itself was not an abuse of discretion. Denying a motion to continue because counsel wishes to travel that day would rarely be an abuse of discretion. Our traditional test for whether the denial of the motion—in a vacuum—in fact suggests that denying the motion was not an abuse of discretion, and I part ways with the majority in its application of our test. The mother was not materially prejudiced by her inability to travel on the day of her counsel's choosing, yet the father was materially prejudiced in having to prepare for trial twice in order to accommodate opposing counsel's travel schedule. The majority's suggestion that the father would not have been prejudiced by a “brief” continuance is suspect where the magistrate allegedly did not have any availability for a five-minute hearing on the motion to continue for more than forty days; a continuance may have resulted in months or years of delay. Cf. McPherson v. Samuel, 392 So. 3d 565, 567 (Fla. 4th DCA 2024) (in determining whether the denial constitutes an abuse of discretion, courts consider “whether the denial results in an injustice for the movant; whether the cause for the delay was unforeseen or whether the motion was based on dilatory tactics; and whether the opposing party would be prejudiced").

I also do not mean to condone counsel's attempt to appear by Zoom for a scheduled in-person hearing. Finding an abuse of discretion to deny a continuance in such circumstance would effectively allow counsel to grant their own continuances by failing to show up as required and then complaining about the injustice of the court carrying on without them. If the continuance motion had been filed on the eve of trial, the magistrate would not have abused her discretion to proceed, just as the magistrate did here, even if the mother had chosen to improperly show up by Zoom and the magistrate did not let her appear at all and proceeded without her. But here, failing to hear the motion (filed well in advance of trial) until the time of trial was an abuse of discretion, inasmuch as that failure effectively vitiated the relief being sought, without considering the motion's merits.¹ Mazda Motor Corp., 123 F. 3d 1353, 1367 (11th Cir. 1997) (“When a litigant's rights are materially prejudiced by the district court's mismanagement of a case, we must redress the abuse of discretion.").

In saying all this, I do not mean to impugn the able magistrate's management abilities. Trial courts in this district, and family divisions in particular, have caseloads that are necessarily unmanageable. Judges must triage and make rapid judgment calls. Balls will inevitably be dropped by even the most capable trial judges. But when that happens, the appellate process is available to correct the error.

And the error in this case arose not from the decision to deny a requested continuance for attorney travel, but from the decision not to hear or rule on that timely-filed motion until the day of the in-person trial when the relief could not be feasibly afforded. Regardless of the magistrate's decision on the motion, one of the parties would have been 1 Had the magistrate instead granted the continuance, no error would have occurred—but why would anyone want that? That would have forced both parties to needlessly prepare for trial twice.

materially prejudiced.

B. Our authority that the trial court denied due process by awarding a timesharing schedule not requested in the pleadings is wrongly decided.

Second, I agree that our caselaw, which the majority applies, holds that error occurs when a trial court enters a timesharing plan not requested by the parties in advance, inasmuch as such action violates due process to award relief that is not specifically pled. See, e.g., Davis v. Lopez-Davis, 162 So. 3d 19, 21 (Fla. 4th DCA 2014) (“[B]y denying the husband any visitation, the court erroneously awarded the wife relief that she did not request."); Hernandez v. Hernandez, 335 So. 3d 141, 143 (Fla. 4th DCA 2022) (“We reverse the trial court's adoption of the modified time-sharing arrangement because it reduced the father's summer time-sharing with the children despite neither party having requested such relief.”); Schot v. Schot, 273 So. 3d 48, 51 (Fla. 4th DCA 2019) (“[T]he modified parenting plan contained additional changes that went beyond matters related to healthcare decisions, education decisions, and timesharing. The husband's pleadings did not request these changes[.]").²

This line of authority is simply wrong. It both fails to comprehend the relevant statute and violates the relevant statute.

If a party files a petition for dissolution of marriage, “[t]he court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child . . . .” § 61.13(2)(c), Fla. Stat. (2026). That same requirement applies to actions to determine parental responsibility between unwed parents under Chapter 742. See § 742.011, Fla. Stat. (2026) (“After the birth of the child, a parent may request a determination of parental responsibility and child support and for the creation of a parenting plan and time-sharing schedule pursuant to chapter 61.”). Section. 61.13 provides a detailed catalog of factors which the court must consider in fashioning such a plan, guided by the primary consideration of the best interest of the child. See § 61.13(3), Fla. Stat. (2026) (“[T]he best interests of the child must be the primary consideration.”).

In other words, what the parties plead for is a dissolution of marriage or a time-sharing plan between unwed parents. The court's job, guided by section 61.13, is to hear the evidence presented by the parties and fashion a plan that is in the best interests of the child. The parties have due process if they are afforded notice of a final hearing on the petition and an opportunity to be heard at that hearing.

Yet under our caselaw, a court cannot fashion a plan that is in the best interests of the child if one party does not specifically request that plan. But that is not what section 61.13 says. Section 61.13 does not say that the court must pick the proposed plan that is in the better interests of the child. Section 61.13 says the court must establish a plan that's in the best interests of the child.

Suppose that in advance of a final hearing, the father has requested majority timesharing and the mother has requested 50/50 timesharing. The evidence shows that father has no relationship with the child, has inadequate living space, and has substance abuse issues. The evidence shows that it is in the child's best interests for the father to have only limited timesharing. If the court enters such a plan as section 61.13 requires, has the court not violated the father's due process rights by awarding relief that was never requested?

The correct answer is that the father's due process rights were not violated because he had notice and an opportunity to be heard on the question of the timesharing plan that is in the best interests of the child. But our caselaw suggests that a trial court errs and ought to have entered one of the parties' requested plans, even though neither plan is in the child's best interests.

This, of course, is not to say that trial courts should tolerate shenanigans. Suppose both parties request 50/50 timesharing in their pretrial stipulations and proposed parenting plan. At trial, the mother takes the stand and testifies about the father's unsafe household and substance abuse issues in order to explain why she should have majority timesharing. If the father says, “I had no idea this was going to be at issue and have not lined up appropriate witnesses to rebut this testimony,” the trial court would err by carrying on with the hearing and entering a parenting plan. Instead, the trial court may properly continue the trial, perhaps assessing costs against the mother as a sanction for her sandbagging behavior.³ But the issue would not be that the court awarded relief for which neither party pled. The trial court awarded exactly the relief pled: a timesharing plan. The issue would be that the court abused its discretion in failing to continue the trial or otherwise remedy the prejudice to the father's ability to fairly put on his case in light of his reasonable reliance on the pretrial documents.

Indeed, other problems tend to permeate those decisions where we have held that due process was violated. In Davis, we described a litany of errors, including that the evidence did not support the parenting plan entered, before noting that “by denying the husband any visitation, the court erroneously awarded the wife relief that she did not request.” 162 So. 3d at 21.

But by framing such errors in terms of due process violations for granting unpled relief, we have confounded the ability of trial courts to fashion parenting plans that are in the best interests of the child as section 61.13 requires.

Here, the magistrate heard the father's testimony and determined it was in the best interests of the child that the father have majority timesharing. The magistrate's ruling was wrong for other reasons—the magistrate erred in denying (or effectively denying) the mother's motion to continue, and the father's testimony did not actually provide competent, substantial support for the plan entered—but the mother's lack of due process was not a basis for error.

In an appropriate case, I would call on our court en banc to recede from this line of authority and clarify that the trial court's obligation under section 61.13 is to establish a parenting plan that is in the best interests of the child, even if neither party has requested that plan.

* * *

Not final until disposition of timely-filed motion for rehearing.