CHRISTOPHER PERSEO
v.
ERIN DONOFRIO
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When a parenting plan expressly provides a date certain for reevaluation and modification of timesharing without prejudice, a party seeking modification at or after that date need not prove a substantial, material, and unanticipated change in circumstances. The substantial change test applies only unless the judgment or agreement otherwise provides for the standard applicable to modification.
[1] A parenting plan may expressly provide for a date certain or event after which timesharing may be modified without requiring proof of a substantial, material, and unantic…
[2] When a parenting plan sets a specific date for reevaluation of timesharing, a party seeking modification after that date is not necessarily required to meet the substanti…
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Join FLexlaw to unlock all legal intelligence“March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court.”
This language from the parenting plan itself established the contractual basis for modification without the ordinary change in circumstances burden.
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Join FLexlaw to unlock all legal intelligenceThe parties agreed to a parenting plan with milestone dates providing for increasing paternal timesharing over three years. The final milestone date, …
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that “‘[t]he substantial change test applies unless the judgment otherwise provides for the standard that should be applied when one party seeks a modification.’” C.N., 316 So. 3d at 292 n.5 (quoting Wade, 903 So. 2d at 932 n.9). In Idelson v. Carmer, 330 So. 3d 81, 82-83 (Fla. 2d DCA 2021), the parties agreed in their mediated parenting plan, by handwritten notation, that the youngest child’s inclusion in their timesharing arrangement could “be addressed by motion” any time after that child’s third birthday. On appeal from the trial court’s subsequent determination that the parties’ youngest child should be included in the parenting plan, the Second District concluded that the trial court “correctly observed that it need not decide whether a substantial unanticipated change in circumstances had occurred” for the child to be included in the existing parenting plan. Id. at 82. In reaching this conclusion, the Second District noted that “the precipitating event” contemplated by the parties’ existing parenting plan “occurred.” Id. at 83. Likewise, in Greene v. Suhor, 783 So. 2d 290, 290-91 (Fla. 5th DCA 2001), the Fifth District determined that a father “was not required to meet th[e] heavy burden of proof” normally applicable in timesharing modification proceedings because the parties provided in their agreed timesharing agreement that the minor child “would be with each parent on alternating months until [the child] started kindergarten[,]” at which time “residential custody would be with the mother.” Thus, the trial court erroneously concluded that the parties’ existing parenting plan required him to meet the substantial, material, and unanticipated change in circumstances burden generally applicable in timesharing modification proceedings. We therefore reverse the judgment on the pleadings and remand for further proceedings consistent with this opinion. Reversed and remanded with instructions. KLINGENSMITH, C.J. and KUNTZ, J., concur.
* * * Not final until disposition of timely filed motion for rehearing.
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Citator
Authorities Cited
- Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005)
- Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999)
- Graham Marquis Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001)
- C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021)