2024 CASE LAW -EVEN WITH DEFAULT THE COURT MUST DETERMINE WHETHER TIMESHARE MODIFICATION IN THE BEST INTEREST OF CHILD
Oria v. Velastegui, ___ So. 3d ____, 2024 WL 5149814 (Fla. 3rd DCA 2024). Notice: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal. EVEN
WHEN A PARTY IS ENTITLED TO DEFAULT ON A SUPPLEMENTAL PETITION, THE COURT MUST DETERMINE IF MODIFICATION IS IN THE CHILD'S BEST INTEREST.
The Father appealed the trial court's dismissal of his supplemental petition to modify the agreed-to parenting plan for the parties' minor child. The parties entered into a paternity agreement with a parenting plan for their minor child that the trial court incorporated into a final judgment of paternity on June 2, 2022. The paternity agreement provided a parenting plan with equal timesharing if the parties ceased cohabitating. The agreed-upon parenting plan did not specify different timesharing for holidays/school breaks. The father filed a petition to modify the parenting plan to include specific holiday and school break timesharing, traveling abroad with the child, a manner for holding the child's passport, and the parties' rights to claim the child's tax credits. He argued that the ceased cohabitation was a substantial material change in circumstances. The trial court entered a default against the mother but later dismissed the father's petition, arguing he failed to allege a substantial, material change in circumstances. The trial court noted it lacked the power to rewrite the agreed-upon parenting plan to address the issues not specifically addressed. The appellate court reviewed the record and determined the parties' parenting plan evidenced that they contemplated not cohabitating and that the timesharing provisions of the agreed-upon parenting plan should prevail. Accordingly, despite the mother's default, the appellate court upheld the trial court's dismissal of the father's petition on the timesharing issue. The appellate court reviewed the record and determined that since the parenting plan did not address the other issues—i.e., traveling with the child, possession of the child's passport, and entitlement to the child tax credit—in the face of the mother's default, the father properly pled a changed in circumstances and reversed the trial court's denial for modification on these issues. However, the appellate court reviewed case law and noted that despite the mother's default, the trial court still needed to determine whether modification on these issues was in the best interest of the parties' minor child. The appellate court affirmed in part, reversed in part, and remanded with instructions. https://3dca.flcourts.gov/content/download/2444907/opinion/Opinion_2024-1169.pdf (Dec. 18, 2024)