Background
Dylan Wyrick and Lisa Banks divorced in June 2023 and share minor children subject to a parenting plan. After the divorce, Banks filed an amended motion alleging that Wyrick was not complying with the plan.
The motion sought contempt, enforcement of the existing plan, makeup parenting time, use of Family Wizard, family counseling, and attorney’s fees. The hearing notice identified the matter as Banks’s amended contempt and compliance motion. Following that hearing, however, the Lee County circuit court also changed the plan’s time-sharing provisions.
The Court’s Holding
The Sixth District reversed and remanded. It held that the trial court committed fundamental due-process error by sua sponte modifying time-sharing when neither the motion nor the hearing notice put Wyrick on notice that modification would be considered.
A court may not modify a time-sharing plan without appropriate pleadings, proper service, notice, and an opportunity to be heard. Although Wyrick had not preserved his challenge, the lack of notice was fundamental error. The court directed the trial court to strike the portion of its order modifying time-sharing.
Key Takeaways
- A contempt or enforcement motion does not itself provide notice that time-sharing may be modified.
- Due-process failures involving notice and an opportunity to be heard may be raised for the first time on appeal.
- The remand is limited to striking the unauthorized time-sharing modification.
Why It Matters
The decision reinforces that family courts must distinguish between enforcing an existing parenting plan and modifying it. Even where a parent alleges noncompliance, a time-sharing change requires pleadings and notice that allow the other parent to prepare evidence and be heard on modification.