WYRICK v. WYRICK (2026)

Dylan Wyrick (“Former Husband”) appeals from an order granting an “Amended Motion for Contempt and to Compel Compliance with Parenting Plan.” Former Husband argues that the trial court committed fundamental error in sua sponte modifying the parenting plan when modification was neither requested by the parties nor properly noticed. We agree and reverse.

The parties were granted a divorce on June 16, 2023, and have minor children who are subject to a parenting plan. After the divorce was finalized, Lisa Banks (“Former Wife”) filed an amended motion, alleging that Former Husband was not complying with the parenting plan and requesting the following relief:

[t]hat the court find the Father in contempt of court, that the court orders the Father to comply with the Final Judgment and Parenting Plan, provide supplemental parenting time to make up for the lost time, orders the parents to use Family Wizard, and orders the parents and the oldest daughter to participate in family counseling with a therapist that is agreeable to both parties, and that the Father pay the Mother her attorney's fees and costs in this matter.

Prior to a hearing on the matter, the parties received a notice that clearly stated the following: “MOTION: Petitioner's Amended Motion for Contempt and to Compel Compliance with Parenting Plan. Date: December 12, 2024.” However, from this hearing, the lower court also modified the time-sharing portion of the parenting plan entered on June 16, 2023.

Though Former Husband's argument is unpreserved, “[a] denial of due process constitutes fundamental error that may be raised for the first time on appeal.” Schneider v. Tirikian, 397 So. 3d 1070, 1074 (Fla. 3d DCA 2024). “Fundamental error is defined as error which ‘goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.’ ” Olivera v. State, 58 So. 3d 352, 353 (Fla. 1st DCA 2011) (quoting Sparks v. State, 740 So. 2d 33, 35 (Fla. 1st DCA 1999)).

A court cannot modify a time-sharing plan “unless the court's jurisdiction has been properly invoked by appropriate pleadings, proper service of process has been had and there is given proper notice and opportunity to be heard on that issue.” Fulcher v. Allen, 363 So. 3d 1173, 1175 (Fla. 6th DCA 2023) (emphasis added); Chan v. Addison, 386 So. 3d 1033, 1035 (Fla. 6th DCA 2024); Busch v. Busch, 762 So. 2d 1010, 1011 (Fla. 2d DCA 2000); Richmond v. Richmond, 537 So. 2d 1039, 1040 (Fla. 5th DCA 1988).

Former Husband was entitled to notice and an opportunity to be heard on the matter of a modification of the time-sharing plan. “Notice to legally interested parties so that they can assert their claims is the essence of the procedural due process protections provided by the Florida Constitution.” In re Adoption of a Minor Child, 593 So. 2d 185, 189 (Fla. 1991) (citing Art. I, § 9, Fla. Const.); Shaw v. Shaw, 455 So. 2d 1156, 1157 (Fla. 5th DCA 1984) (“Due process applies to hearings to modify custody awards ․”). Though Former Wife's amended motion merely sought a contempt order and to compel compliance with the existing parenting plan, the final order sua sponte modified the parenting plan without any notice given to Former Husband.¹ “The denial of due process rights, including the opportunity to be heard, to testify, and to present evidence, is fundamental error.” Maddox v. Maddox, 357 So. 3d 270, 274 (Fla. 2d DCA 2023) (quoting Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014)).

The trial court committed fundamental error in granting relief that was neither requested nor noticed. Accordingly, we reverse and remand for the trial court to strike the portion of its order modifying the parties’ time-sharing portion of the parenting plan.

REVERSED and REMANDED.

FOOTNOTES

1.   The trial court's modification of the time-sharing plan was also erroneous because its jurisdiction to modify the time-sharing plan had not been invoked by an appropriate pleading seeking modification. However, this error was not preserved and is not fundamental, and so our reversal of the trial court's order is based only on the lack of due process, which is a fundamental error.

STARGEL, J.

MIZE and KAMOUTSAS, JJ., concur.