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 J.G.J., ) ) Appellant, ) ) v. ) Case No. 2D20-127 ) J.H., ) ) Appellee. ) ) Opinion filed April 30, 2021. Appeal from the Circuit Court for Polk County; Kelly P. Butz, Judge. Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant. J.H., pro se. MORRIS, Judge. J.G.J., the mother, appeals an order finding her in contempt for failing to comply with the timesharing schedule set forth in the final judgment establishing paternity, parenting plan, and timesharing. The order also modified timesharing in favor of J.H., the father. The mother does not challenge the finding of contempt, and we therefore affirm that portion of the order. However, we reverse the portion of the order modifying timesharing for the three reasons argued by the mother. "A court cannot modify timesharing as a sanction for a parent's contempt of a custody order." Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017) (holding that trial court erred in modifying timesharing where the record showed that the only reason for the modification was to sanction the parent for his misconduct). However, such modification may be proper where the trial court has found that a change of custody is in the child's best interests. See § 61.13(4)(c)(6), Fla. Stat. (2019) ("When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the 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."); cf. Nejeeullah v. Peraza, 159 So. 3d 278, 279 (Fla. 2d DCA 2015) (reversing contempt order where "the record before this court does not contain a finding that the change in custody was in the best interests of the child"); Hunter v. Hunter, 65 So. 3d 1213, 1214-15 (Fla. 2d DCA 2011) (noting that "[i]n the absence of a finding that a change in custody is in the children's best interest, such a change may 'penalize the children for the parent's contumacious conduct' " and holding that trial court erred in changing child custody as punishment for father's conduct where "trial court made no written findings whether the transfer of primary residential custody of the children was in their best interests" (quoting LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131, 1133 (Fla. 2d DCA 1999))); Pelliccia v. Arce, 867 So. 2d 619, 620-21 (Fla. 2d DCA 2004) (reversing contempt order that changed custody where "record on appeal does not show that the change of custody was entered because it was in the best interests of the minor child to do so"). -2- The trial court's order does not make an explicit finding that the change of timesharing was in the best interests of the child or otherwise indicate that the best interests of the child had been considered. See Burckle v. Burckle, 915 So. 2d 747, 749 (Fla. 2d DCA 2005) ("[T]he trial court did not evaluate the factors affecting the welfare and interests of the child as required by section 61.13(3), Florida Statutes (2003), and it did not make a determination of the child's best interests. Thus, we reverse the change in custody [that was entered as a sanction for the father's conduct]."). And a lack of such finding on the face of the judgment has been held to be reversible. See Andre v. Abreu, 272 So. 3d 467, 467-68 (Fla. 3d DCA 2019) ("On its face, the Order impermissibly modifies the parties' timesharing as a sanction against Ms. Andre. At the time the Order was entered, there was no pending petition to modify or finding made that modification was in the best interest of the minor. This error is clear on the face of the Order." (citations omitted)). We also agree with the mother the trial court erred in modifying the timesharing without a finding of a substantial change in circumstances, in addition to the best interests of the child. Generally, "[a] trial court should not modify a time-sharing schedule '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.' " Hollis v. Hollis, 276 So. 3d 77, 79 (Fla. 2d DCA 2019) (quoting Griffith v. Griffith, 133 So. 3d 1184, 1186 (Fla. 2d DCA 2014)). This court has held that even when the trial court is authorized to modify timesharing as a sanction under section 61.13(4)(c)(6), the substantial change of circumstances standard applies. See Wolf v. Wolf, 296 So. 3d 479, 483 (Fla. 2d DCA 2020) (citing Cecena v. Chambers, 938 So. 2d 646, 648 (Fla. -3- 2d DCA 2006), for the holding that "the substantial change of circumstances test . . . applie[s] to custody modifications" as a sanction); Lewis v. Juliano, 242 So. 3d 1146, 1148 (Fla. 4th DCA 2018) ("Modification of timesharing in the context of a contempt proceeding is permissible only if: (1) the moving party has affirmatively alleged and proven a substantial change in circumstances; (2) the minor child's best interests require the modification; and (3) sufficient notice of the proposed modification was afforded to the nonmoving party." (citing Duncan, 233 So. 3d at 480 n.4)). There is no indication in the contempt order that the trial court considered the substantial change in circumstances test or found that the facts of this case constituted a substantial change in circumstances for purposes of custody modification. Last, the modification of timesharing was made without affording the mother due process. The father filed a form motion for contempt. He filled out the necessary information and asked for make-up timesharing. In the section seeking to "award[] other relief," the father stated that he would like to "change custody since mother refuses to obey court order." However, the father did not allege in the body of the motion or in the prayer for relief that it was in the child's best interests to change timesharing or that a substantial change in circumstances required a change in timesharing. See Cecena, 938 So. 2d at 649 ("While section 61.13(4)(c)(5)[, the predecessor to section 61.13(4)(c)(6),] does provide for the modification of custody as a sanction for a custodial parent's refusal to honor the non-custodial parent's visitation rights, it should be done only upon the filing of a petition for modification with proper notice and only as a last resort."); Pelliccia, 867 So. 2d at 620 (holding that "due process concerns were implicated when a party was not properly put on notice that a -4- change of custody was being sought" where father's motion for contempt "sought to change the primary residential custody" but did not assert "it would be in their child's best interest to modify primary residential custody"); see also Wolf, 296 So. 3d at 484 (noting that former husband did "not allege a substantial change of circumstances, it was not addressed at the hearing, and the trial court d[id] not mention a substantial change in circumstances in its written order" and that there was "no affirmative allegation that [modification was] in the child's best interests" or any indication that the trial court considered the statutory best interests factors). Accordingly, the trial court erred in modifying timesharing without the father properly pleading a substantial change in circumstances and the child's best interests. For these reasons, we reverse the order of contempt to the extent that it modified timesharing, and we remand for further proceedings consistent with this opinion. Affirmed in part; reversed in part; remanded. LaROSE, J., Concurs. ATKINSON, J., Concurs in result only. -5-