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 JENNIFER IDELSON, ) ) Appellant, ) v. ) Case No. 2D20-1221 ) JAYSON CARMER, ) ) Appellee. ) ) Opinion filed April 30, 2021. Appeal from the Circuit Court for Lee County; Lee Ann Schreiber, Judge. Matthew P. Irwin of Men's Rights Law Firm, Cape Coral, for Appellant. Joseph P. Hoffman, Fort Myers, for Appellee. LUCAS, Judge. Jennifer Idelson (the Mother) appeals a supplemental final judgment that revised a stipulated parenting plan that had been incorporated into a prior judgment. The plan governs timesharing for the parties' three minor children. We need not recount the acrimony that is apparent in this record. Suffice to say, as the family court aptly noted, the Mother's relationship with Jayson Carmer (the Father) is one of "high conflict." We do not doubt the court's assessment that it would be in the minor children's best interest to modify the parties' parenting plan. However, the family court erred when it determined that it need not decide whether a substantial unanticipated change in circumstances had occurred. See § 61.13(3), Fla. Stat. (2019) ("A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."); D.M.J. v. A.J.T., 190 So. 3d 1129, 1131-32 (Fla. 2d DCA 2016) (" 'It is well settled that in order to modify a timesharing plan there must be a substantial change in circumstances.' And 'the petitioning party has the extraordinary burden to prove the substantial change in circumstances.' " (quoting George v. Lull, 181 So. 3d 538, 540 (Fla. 4th DCA 2015))); Sidman v. Marino, 46 So. 3d 1136, 1137 (Fla. 1st DCA 2010) (reversing modification order where "the evidence may have shown that increasing the father's time with the child [was] in the child's best interest, [but] there was no evidence of an unanticipated and substantial change in circumstances"). Although it is true that a final judgment incorporating a parenting plan can alter the requisite showing necessary for future modifications,1 this final judgment did not do so. 1See Wade v. Hirschman, 903 So. 2d 928, 932 n.9 (Fla. 2005) ("The substantial change test applies unless the judgment otherwise provides for the standard that should be applied when one party seeks a modification."); Segarra v. Segarra, 947 So. 2d 543, 547 (Fla. 3d DCA 2006) ("The Father is not required to demonstrate a substantial change in circumstances to modify the visitation provisions in the final judgment because the MSA between the parties specifically contemplated revisiting the issue of visitation at the time the child began formal schooling."); Mooney v. Mooney, 729 So. 2d 1015, 1016 (Fla. 1st DCA 1999) ("We find no error in [the trial court's determination that neither party bore a higher burden of proof] based upon the custody arrangement between the parties, which was incorporated in the final judgment of dissolution, . . . [where] the parties agreed at the time of dissolution that the beginning of -2- And the family court's alternative finding—that a substantial, unanticipated change had occurred by virtue of the passage of two years of time and the acrimony between the parents—is not, in itself, a sufficient basis to support such a determination. See Ring v. Ring, 834 So. 2d 216, 217 (Fla. 2d DCA 2002) ("The record does show that the parties in this case sadly failed to communicate between themselves and had continuing hostility. However, in Newsom v. Newsom, 759 So. 2d 718, 720 (Fla. 2d DCA 2000), this court stated that the 'fact that the parents cannot communicate and get along does not constitute a material change in circumstances to warrant modification of custody.' "); Sanchez v. Hernandez, 45 So. 3d 57, 62 (Fla. 4th DCA 2010) ("The father, however, needed to prove more than merely an acrimonious relationship and a lack of effective communication in order to show a substantial change."); Bazan v. Gambone, 924 So. 2d 952, 956 (Fla. 3d DCA 2006) ("Although the trial court expressed concern about the parties' bickering and the difficulty that such conduct creates for the minor child, this is insufficient to support modification. The parents' acrimonious relationship and lack of effective communication do not constitute a material change in circumstances to warrant modification of custody."). In the absence of the requisite findings, we are compelled to reverse the judgment below. See Romeo v. Romeo, 310 So. 3d 1064, 1065 (Fla. 2d DCA 2020) ("The failure to include [a finding that there had been a substantial, material, and unanticipated change in circumstances that warranted a modification to the parenting plan]—perhaps the most important determination a family court must make in a school would constitute a change of circumstances which would require the custody issue to be readdressed."). -3- modification proceeding—will typically require reversal of a judgment that modifies a prior judgment's parenting plan."). On remand, the court shall enter a new judgment in accordance with this opinion either based upon the evidence previously presented, or after taking additional evidence should the court deem it appropriate.2 We find no merit in any of the Mother's remaining arguments on appeal. Affirmed in part; reversed in part; remanded with directions. SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur. 2The family court was correct when it observed that it need not issue specific findings under section 61.13(3). But under the facts of this case, given these circumstances, we would encourage the court to do so on remand. See Verrier v. Oaks, 235 So. 3d 1050, 1051 (Fla. 2d DCA 2018). -4-