Chelsea Henry v. David Rice
CourtDistrict Court of Appeal of Florida
Date FiledOctober 21, 2026
Docket4D2026-0854
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHELSEA HENRY,
Appellant,
v.
DAVID RICE,
Appellee.
No. 4D2026-0854
[October 21, 2026]
Appeal of an interim temporary timesharing order from the Circuit
Court for the Nineteenth Judicial Circuit, Indian River County; Victoria L.
Griffin, Judge; L.T. Case No. 312022DR001014AXXXVB.
Jennifer N. Weaver of Law Office of Jennifer Weaver, PLLC, Tallahassee,
for appellant.
Katlin M. Sanders of KMS Legal, Fort Pierce, for appellee.
MAY, J.
Due process lies at the heart of this appeal by a mother challenging an
interim temporary timesharing order that modified timesharing pending
full resolution of the father’s supplemental petition for modification of the
parenting plan, child support, and other relief. She argues the trial court
erred in modifying timesharing and granting unrequested relief at a
hearing on the father’s motion for contempt. We agree and reverse.
• The Facts
The mother and the father share a minor child. The trial court issued
a final judgment of paternity in 2024. The father resides in Indian River
County. The mother resides in Orange County. The final judgment
ordered shared parental responsibility of the minor child with the father
having ultimate decision-making authority over healthcare decisions upon
disagreement.
Within paragraph two of the final judgment, the trial court retained
jurisdiction to modify the parenting plan to return the child to Indian River
County without a showing of substantial and material change in
circumstances upon a determination of the best interests of the child. In
section J, subsection (t) of the findings in the final judgment, the trial court
specified factors it would consider in modifying the parenting plan,
including “the [m]other’s communication with the [f]ather, her priorities to
the child, her living arrangements, the child’s behavior, progress and
schooling, medical needs, hygiene and outside activities as discussed
herein, all of which shall all constitute a substantial and material change
in circumstances.”
The parties’ parenting plan provided for the mother’s address to control
for school boundary determination and registration as long as the child
was enrolled at a specific school, Pinecrest Avalon, and provided the child
was not doing poorly in school. The trial court reserved jurisdiction to
address modification of schooling and residence upon proper application
if the child were to be held back and continued to perform poorly in school.
The final paternity judgment did not end litigation between the parties.
They filed numerous post-judgment motions. On April 10, 2025, the
father filed a “Verified Motion for Contempt and Enforcement, Change of
Placement of the Child, and Request for Attorney’s Fees (“motion for
contempt”). The motion alleged, among other things, that the mother had
unilaterally unenrolled the child from Pinecrest Avalon. When the father
attempted to discuss the issue with the mother, she was combative and
refused to correspond.
The motion for contempt alleged the mother constantly showed up late
for timesharing exchanges, requiring the father to contact law enforcement
to assist in retrieving the child. The motion referenced the trial court’s
retention of jurisdiction to modify the parenting plan. The father sought
to have timesharing modified and to allow the father to enroll the child in
an Indian River County school. Specifically, the father requested to “flip”
the parties’ timesharing by giving the mother the father’s current
timesharing and vice versa.
The trial court referred the matter to a magistrate, who heard some of
the pending matters on August 4, 2025. The mother withdrew her motion
to strike the father’s motion for contempt. The magistrate recommended
denial of the father’s motion for contempt insofar as the motion sought to
modify the parenting plan.
2
Just prior to, and directly after, the hearing, the parties filed various
motions:
July 29, 2025 – mother’s “Motion to Strike Father’s Motion for
Contempt and Enforcement, Change of Placement of Child
and Motion for Attorney’s Fees”;
July 30, 2025 – father’s “Petition for Modification of Parenting
Plan, Child Support, and Other Related Relief”;
August 3, 2025 – mother’s “Motion for Contempt and
Enforcement and Amended Motion to Strike [the Father’s] . . .
Verified Motion for Contempt and Enforcement, Change of
Placement of Child, and Request for Attorney’s Fees and
Costs”;
August 7, 2025 – mother’s “emergency ex parte motion”
seeking to have the father “stop disrupting” the child’s
enrollment in the Orange County school and an order of
clarification that timesharing had not been modified;
August 7, 2025 – father’s “Verified Urgent Motion for Relief as
to School Designation and Temporary Timesharing”; and
August 11, 2025 – mother’s “emergency exparte [sic] motion
for pick up order.”
On August 12, 2025, the trial court entered an order adopting the
magistrate’s recommendations on:
(1) the mother’s ex parte motion to stop the father from
disrupting the child’s school in Orange County;
(2) the father’s urgent motion for relief as to school
designation and temporary timesharing;
(3) the mother’s emergency ex parte motion for a pick-up
order; and
(4) “any other matter related thereto.”
The trial court further adopted the magistrate’s recommendation of
denying the father’s motion for contempt insofar as the motion sought to
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modify the parenting plan, determining that such relief needed to be
requested through a supplemental petition and not a motion.
In February 2026, the trial court held a hearing on the following three
motions: (1) the father’s motion for contempt, (2) the mother’s motion to
strike, and (3) the mother’s motion for contempt. By the hearing date, the
child was attending school in Indian River County. The parties argued
extensively at the hearing, but no evidence was presented.
The father maintained the trial court could enter an interim temporary
order on timesharing and the child’s school pending a final hearing. The
mother argued the trial court could not enter an interim order, requesting
the court to enforce the final judgment and parenting plan and to return
the child to her.
The trial court announced it would not hear the contempt arguments,
because those arguments needed to be heard at the same time as the
father’s petition for modification:
All right. We’ve spent an hour and a half just going back and
forth and just countering what the other is saying. That’s all
that’s happened in an hour and a half. The court agrees that
you cannot modify the parenting plan without a
supplemental petition. That’s the basis for Magistrate Hill’s
ruling from that hearing.
And if you’re talking about reversible error, I believe that
reversible error, correct me if you think I’m wrong, that when
there is a pending petition for modification, when a motion for
contempt is filed, a reversible error to not conduct the
hearings together or conduct the modification prior to the
contempt [sic]. That’s the case law.
(emphasis added).
Despite the trial court’s indication that it could not modify the
parenting plan, the trial court rendered an interim temporary timesharing
order doing just that.
The trial court found it was in the best interests of the child to have
interim timesharing with both parents. The trial court acknowledged that
the parties disputed where the child should reside for school attendance
purposes. The order provided that the mother’s timesharing “shall not
interrupt the minor child’s enrollment in, or attendance at his current
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school [in Indian River County].” Thus, until further order of the court,
the child was ordered to primarily reside with the father. The order also
required the parties to exchange the child at the Indian River County
Sheriff’s Office, and that the mother’s timesharing be exclusively in Indian
River County despite her living in Orange County.
From this order, the mother now appeals.
• The Analysis
The mother argues the trial court erred by entering the interim
temporary timesharing order without due process, which she argues
includes a proper request for temporary relief, notice, and an evidentiary
hearing. She also argues the order was entered without a finding of a
substantial change in circumstances or an emergency.
She maintains the order materially modified the parenting plan by
reducing her timesharing, requiring that her timesharing occur in Indian
River County, designating the father as the primary residential parent,
changing the exchange location to the Indian River County Sheriff’s Office,
and imposing a law-enforcement provision applicable solely to the mother.
The father responds that the mother was on notice of the requested
relief, and the trial court specifically reserved jurisdiction in the final
paternity judgment to modify the parenting plan.
We review a trial court’s temporary order modifying timesharing for an
abuse of discretion. See, e.g., Troike v. Troike, 271 So. 3d 1069, 1072 n.
3 (Fla. 3d DCA 2019) (citing Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980)).
It is well settled that an order adjudicating issues not
presented by the pleadings, noticed to the parties, or litigated
below denies fundamental due process. A court violates due
process when it “modifies visitation, changes primary
residence, or alters child support when the notice of hearing
does not include this issue.”
Golden v. Bass, 194 So. 3d 1080, 1082 (Fla. 1st DCA 2016) (citations
omitted).
Here, the only relevant motion noticed for hearing was the father’s
motion for contempt. The father’s motion sought to have the parties’
timesharing “flipped” and to allow the father to enroll the child in school
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in Indian River County. Even though the mother was on notice of the
specific relief requested, both the magistrate and the trial court
acknowledged that modification of the parenting plan required a petition
and should not be determined at a contempt hearing.
But the trial court’s order modified timesharing without the requisite
petition and exceeded a simple modification of the parents’ timesharing.
The order included unrequested relief: (1) requiring the child’s exchange
at the Indian River Sheriff’s Office, (2) requiring the mother to exercise
timesharing only in Indian River County, and (3) changing primary
custody to the father.
We have held that a trial court’s interim order modifying timesharing
after a contempt hearing when a petition for modification is pending
constitutes error. Chevalier v. Emmerson, 300 So. 3d 217, 219-220 (Fla.
4th DCA 2020). There, we explained:
As a general rule, “a contempt order should not be the basis
for a change of custody (or extensive visitation) order.” In
other words, “[a] court cannot modify timesharing as a
sanction for a parent’s contempt of a custody order.”
…
Notwithstanding section 61.13(4)(c)6., Florida Statutes, this
court has held that “the trial court abuses its discretion in
temporarily changing custody where, as here, custody was
already established by a judgment and a petition to
permanently change custody is pending, unless there is a real
emergency.”
Id. (citations omitted) (emphasis added).
Here, the trial court declined to hear the contempt motion because it
needed to be heard along with the father’s petition for modification. Even
though the trial court found the modification to be in the child’s best
interest, no evidentiary hearing occurred, and the court made no finding
of an emergency. 1
1
We recognize, as we did in Chevalier, that a trial court “[m]ay, upon the request
of the parent who did not violate the time-sharing schedule, modify the parenting
plan if modification is in the best interests of the child.” See § 61.13(4)(c)6., Fla.
Stat. (2024). But that can occur only when the parties present evidence
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While the trial court seems to have agreed with the magistrate’s
recommendation that the modification could only occur at a hearing on a
petition for modification, the trial court nevertheless modified timesharing
and ordered unrequested restrictive conditions on that timesharing. The
trial court also changed the child’s primary residence.
We conclude the trial court erred in modifying the parties’ timesharing
in the interim order when a petition for modification was pending and the
only motion noticed for hearing was the father’s motion for contempt. 2
Reversed and remanded.
GERBER, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely-filed motion for rehearing.
concerning the child’s best interests. That did not occur here. And the order
went much further than a simple timesharing modification.
2 As our holding on the due process issue resolves the appeal, we need not reach
the mother’s alternative arguments that the trial court erred in failing to find a
substantial change in circumstances and in failing to conduct an evidentiary
hearing.
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