JEKTOR AYALA
v.
JARISEL VEGA
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A trial court does not abuse its discretion in modifying a timesharing arrangement when the non-moving party requests the modification in their pleading and both parties try the issue during trial, notwithstanding the absence of a separate modification petition.
[1] A party trying an issue at trial without objection to the lack of a separate pleading satisfies the notice and opportunity to be heard requirements even if the opposing p…
[2] A trial court may modify a timesharing arrangement in a relocation proceeding when the non-relocating parent's answer requests the modification and both parties litigate…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Granting unrequested relief absent proper notice is a violation of due process.”
Court citing Romero v. Brabham in father's due process argument
The father petitioned to relocate from Broward County to Palm Coast. The parties had a previously agreed-upon 50/50 timesharing arrangement, which the…
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GERBER, J.
The father appeals from the circuit court’s final judgment on the father’s petition to relocate from Broward County to Palm Coast. The final judgment ratified a magistrate’s report which had recommended granting the father’s relocation petition, but changing the parties’ previously agreed-upon 50/50 timesharing arrangement to the mother having majority timesharing in Broward County.
The father primarily argues the circuit court abused its discretion in modifying the parties’ previously agreed-upon 50/50 timesharing, because the mother never filed a pleading seeking modification, and the father did not try the modification issue by consent, thus violating his due process rights. See Romero v. Brabham, 300 So. 3d 665, 668 (Fla. 4th DCA 2020) (“Granting unrequested relief absent proper notice is a violation of due process.”) (citations omitted); Bailey v. Bailey, 227 So. 3d 768, 768 (Fla. 1st DCA 2017) (“[W]e agree with the former wife that the trial court erred in requiring the parties to equally split the responsibility of transportation for timesharing because that issue was not pled or tried by consent.”).
We disagree with the father’s argument. The record indicates the mother’s answer requested that she be given majority timesharing. Further, during the trial, the mother, like the father, requested majority timesharing. At no point during or after the trial did the father object on the ground that the mother had not filed a pleading requesting that she be given majority timesharing. So even if the mother’s answer had not requested that she be given majority timesharing, the father tried that issue by consent.
The father’s remaining arguments lack merit and do not require further discussion. Thus, we affirm the circuit court’s final judgment. However, our affirmance is without prejudice to the father filing another petition seeking to relocate back to Broward County and resume the parties’ previously agreed-upon 50/50 timesharing arrangement, as the father had alternatively suggested during the final hearing. We take no position on the merits of such a petition.
Affirmed.
CIKLIN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
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Jektor Ayala v. Jarisel Vega (Fla. 4th DCA 2023)
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Schenavar v. Schenavar, 350 So. 3d 439 (Fla. 4th DCA 2022)…he trial court’s skepticism about the husband’s characterization of the wife’s mental and physical condition. Because the wife alleged a colorable entitlement to relief, the court should not have summarily denied her motion. See Romero v. Brabham, 300 So. 3d 665, 667 (Fla. 4th DCA 2020) (reversing order denying former wife’s rule 12.540 motion to vacate because such motions “should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘co…
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I. T. v. IN the Interest of: K. P. L. (Fla. 2d DCA 2022)…re Guardianship of Schiavo), 800 So. 2d 640, 644 (Fla. 2d DCA 2001)). I.T.'s motion stated a colorable claim of entitlement to relief—the denial of due process; it should not have been denied without an evidentiary hearing. See Romero v. Brabham, 300 So. 3d 665, 667 (Fla. 4th DCA 2020); cf. Taylor v. Taylor, 67 So. 3d 359, 362 (Fla. 4th DCA 2011). It appears that the court was or should have been aware at the time of the final judgment of adoption in this case that K.P.L. had a sibling and that I.T. had pe…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jektor Ayala v. Jarisel Vega (Fla. 4th DCA 2023)
- Bailey v. Bailey, 227 So. 3d 768 (Fla. 1st DCA 2017)