Carolyn Massiel Luna, Appellant, v. Jonathan Victoriano Hernandez, Appellee. (2025)

Appellant, the mother, seeks review of a nonfinal order suspending her timesharing and granting appellee, the father, exclusive timesharing with their son for a defined period of time.¹ The mother is otherwise prohibited from having any contact with the child during the specified time. The trial court ordered the change in timesharing at a case management conference, following claims of parental alienation. Because the notice setting the matter for conference did not forewarn the parties they would be litigating a potential change in timesharing, we are constrained to reverse. See Busch v. Busch, 762 So. 2d 1010, 1010–11 (Fla. 2d DCA 2000) (reversing the dissolution of marriage final judgment because “the trial court violated [the wife's] right to due process by changing the custody of the minor children without the requisite pleadings or notice of hearing” as “the wife was given no warning that the custody of her children was at stake” prior to hearing at issue); Schnicke v. Schnicke, 533 So. 2d 337, 337–38 (Fla. 5th DCA 1988) (reversing the custody order because “[n]o pleadings were filed requesting a change of custody nor was there any notice that any such change of custody would be heard or considered by the court”); Foreman v. James, 305 So. 3d 656, 656–57 (Fla. 3d DCA 2020) (holding trial court was required to conduct an evidentiary hearing preceded by appropriate notice to “comport with due process requirements” prior to issuing order removing minor child for a period of ninety-four days). In doing so, we express no opinion on the merits of the modification of custody decision.

Reversed and remanded.

FOOTNOTES

1.   The mother first filed an appeal of a nonfinal order, followed by a petition for certiorari. We find the order is a nonfinal, appealable order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b because it concerns “the rights or obligations of a party regarding child custody or time-sharing under a parenting plan.” Id.; see also Fla. R. App. P. 9.040(c) (obliging the court to apply the correct remedy).

PER CURIAM.