Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT OLIVIA KENISHA BOOTH, n/k/a ) OLIVIA KENISHA WILLIAMS, ) ) Appellant, ) ) v. ) Case No. 2D18-4651 ) CHRISTOPHER GLEN HICKS, ) ) Appellee. ) ) Opinion filed March 18, 2020. Appeal from the Circuit Court for Hillsborough County; Wesley D. Tibbals, Judge. Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant. Christopher Glen Hicks, pro se. SALARIO, Judge. Olivia Kenisha Williams (the Mother) appeals from an amended final judgment granting Christopher Glen Hicks (the Father) sole parental responsibility of and exclusive timesharing with their child. She argues that the trial court (1) denied her due process by granting the Father relief he did not request and (2) erroneously resolved questions of parental responsibility and timesharing based solely on her failure to appear at the final hearing. We reverse and remand for further proceedings. The Mother and the Father are not married, and they have never lived together. The child has for the most part lived with the Mother since he was born in 2009. In January 2019, the Father filed a petition to establish parental responsibility and a parenting plan. The petition requested both that parental responsibility be shared by the Father and the Mother and that the court adopt a parenting plan that gave time- sharing to the Mother on weekdays and to the Father on weekends, alleging that both were in the best interests of the child. The Mother responded with her own parenting plan, in which she requested sole parental responsibility. The trial court held a final hearing on October 25, 2018. The Mother did not appear. The trial court heard testimony from the Father and two of his relatives, and it received into evidence several text messages between the Father and the Mother. The trial court found that the Father had arranged for the child to be enrolled in a new school and had been diligent in petitioning the court for timesharing. Without any further findings, the trial court concluded that shared parental responsibility would be detrimental to the child. It awarded sole parental responsibility and exclusive timesharing to the Father. The Mother filed an emergency motion for rehearing, which the trial court denied. The trial court then issued an amended final judgment, which specified that it had made the parental responsibility and timesharing determinations based solely on the fact that the Mother failed to appear at the hearing. The Mother filed another motion for rehearing, which the trial court again denied. -2- In this timely appeal, the Mother first argues that the trial court erred and violated her due process rights by granting the Father more parental responsibility and timesharing than he sought in his petition. We agree. It is well-settled that a trial court violates due process and commits reversible error when it grants a party relief that the party did not request. See Daniels v. Sorriso Dental Studio, LLC, 164 So. 3d 778, 782 (Fla. 2d DCA 2015) (explaining that the trial court "also granted relief not requested by either of the parties, thereby violating Daniels' due process rights"); Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 871 (Fla. 2d DCA 2011) ("Thus, the final judgment providing relief that was not requested violated Land Development's due process rights, and its entry constituted reversible error on this basis alone."). This principle applies with equal force to orders that determine parental responsibility and timesharing. Perez v. Fay, 160 So. 3d 459, 464 (Fla. 2d DCA 2015) ("In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error." (quoting Worthington v. Worthington, 123 So. 3d 1189 (Fla. 2d DCA 2013))). Accordingly, we have found reversible error in final judgments in which the trial court awarded shared responsibility to a father who did not request a change in parental responsibility, Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012), and in which the trial court awarded exclusive timesharing to a mother who only requested partial timesharing, Stover v. Stover, 287 So. 3d 1277, 1279 (Fla. 2d DCA 2020). See also Worthington, 123 So. 3d at 1191 (reversing where the father's modification petition was not noticed for hearing and did not seek the specific timesharing modifications that the trial court awarded). -3- In this case, the Father's petition only sought partial timesharing and shared parental responsibility. The trial court, however, granted the Father exclusive timesharing and sole parental responsibility. By granting the Father relief he did not request in his petition, the trial court violated the Mother's due process rights and abused its discretion. See Stover, 287 So. 3d at 1279; see also Blackwood v. Anderson, 664 So. 2d 37, 38 (Fla. 5th DCA 1995) (reversing an award of custody to the father where the mother failed to appear at the hearing because the record did not show that the father requested custody in his pleadings or that the mother was "sufficiently noticed as to the custody issue"). The Mother also argues that the trial court erred by terminating her timesharing with her child based solely on her failure to appear at the final hearing. A court may only modify timesharing or parental responsibility if the modification is in the best interests of the child.1 § 61.13(3), Fla. Stat. (2018); Perez, 160 So. 3d at 465 ("[T]ime-sharing privileges should not be denied to either parent as long as the parent conducts himself or herself, while in the presence of the children, in a manner which will not adversely affect the children."). We have stated that "this consideration must govern even in the face of a party's procedural defaults or contumacious conduct." Rahall v. Cheaib-Rahall, 937 So. 2d 1223, 1225 (Fla. 2d DCA 2006) ("[A] parent's 1Normally, we would not be able to consider whether the trial court erred by terminating the Mother's parental responsibility, as it was not specifically argued in her brief. See D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (explaining the requirement that arguments be specifically raised on appeal). However, "the importance of courts' responsibilities to safeguard the best interests of children compels us to address [custody issues] sua sponte." Shewmaker v. Shewmaker, 283 So. 3d 894, 896 (Fla. 2d DCA 2019). -4- actions in the lawsuit cannot trump the child's right to have custody decided based on his or her best interests."). As a result, a trial court cannot sanction a parent by modifying a custody order because doing so punishes the child for the parent's misconduct. Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017). And by extension, "[i]t has long been the rule in Florida that child custody should be decided based on the best interests of the children, not based on the default of one of the parents." Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998); see also Andrews v. Andrews, 624 So. 2d 391, 392 (Fla. 2d DCA 1993). Even when a parent fails to appear at a final hearing, the trial court cannot deny the "defaulting parent an opportunity to present evidence on issues related to the child." Shewmaker v. Shewmaker, 283 So. 3d 894, 895 (Fla. 2d DCA 2019) (reversing trial court's denial of mother's motion for relief from default judgment, even though we recognized that the motion was merely conclusory and would normally be considered insufficient for relief); see also Jeffers v. McLeary, 118 So. 3d 287, 289 (Fla. 4th DCA 2013) ("Even when a parent willfully fails to attend a hearing, the trial court should still give the parent the opportunity to be heard and to present evidence before reaching a decision affecting time-sharing."). In this case, the trial court denied both of the Mother's motions for rehearing, thereby denying her the opportunity to present evidence as to the best interests of the child. This was error. See Shewmaker, 283 So. 3d at 895-96; Jeffers, 118 So. 3d at 290 ("Case law suggests that the trial court hold a hearing on the Father's post-judgment motions during which the Father may present his evidence, at which point the trial court should determine whether to vacate the judgment."). And not only is -5- a parent's procedural misconduct or default not an appropriate consideration for whether custody with that parent is in the best interests of the child, see id., but "[t]he complete cessation of any and all timesharing is a harsh result that is rarely proper," Slaton v. Slaton, 195 So. 3d 1192, 1195 (Fla. 2d DCA 2016). On this record, we cannot say that the trial court made the timesharing and parental responsibility decisions it did based upon the child's best interest. See Perez, 160 So. 3d at 465; Rahall, 937 So. 2d at 1225. Accordingly, we are required to reverse. For the foregoing reasons, we reverse the amended final judgment and remand this case to the trial court for further proceedings consistent with this opinion. Reversed and remanded. CASANUEVA and MORRIS, JJ., Concur. -6-