DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

ANNA LOUISE KRIFT,

Appellant,

v.

DARYL DEAN OBENOUR,

Appellee.

No. 4D13-1151

[ November 5, 2014 ]

Appeal and cross-appeal from the Fifteenth Judicial Circuit, Palm 

Beach County; Jack S. Cox, Judge; L.T. Case No. 

502010DR013723XXXXMB.

Bennett S. Cohn, West Palm Beach, for appellant.

Robin Bresky and Jonathan Mann of the Law Offices of Robin Bresky, 

Boca Raton, for appellee.

TAYLOR, J.

The former wife appeals an amended final judgment of dissolution that 

ordered a rotating timesharing schedule which required the minor child to 

move every two months between the mother’s and father’s homes. She 

argues that the trial court violated her due process rights by ordering the 

rotating schedule, because neither party pled for or requested it and she 

had no opportunity to present evidence concerning the timesharing plan.

Because the rotating timesharing plan ordered by the trial court was such 

a material departure from the plan the parties requested, we reverse and 

remand for further proceedings on this issue. The former husband crossappeals, arguing that the trial court erred by classifying the credit card 

debt that he incurred during his marriage as non-marital debt. For 

reasons stated below, we affirm the cross-appeal.

The parties were married in November 2009. They had one child during 

the marriage, born in February 2010. During the marriage, the former 

husband commuted between the home they shared in Lake Worth and his 

job in Bahia Honda in the Florida Keys. When they separated in 2010, the 
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former husband moved to Bahia Honda. The parties agreed on a

timesharing plan wherein the former husband had the child for three 

overnights at his home in Bahia Honda and the former wife had the child 

for four overnights in Lake Worth. During this exchange, the child traveled 

an average of 400 miles a week roundtrip from Lake Worth to Bahia 

Honda.

At trial, the former wife requested that the trial court order the Model 

Parental Timesharing Schedule (Instate Where Parents Reside More than 

45 miles Apart). Under the terms of that plan, the child would live with a 

primary residential parent during the week and spend every other weekend 

with the secondary residential parent. The former husband requested that 

their timesharing plan remain the same, with the child traveling between 

Lake Worth and Bahia Honda each week. He suggested that when the 

child enrolled in kindergarten, in either Bahia Honda or Lake Worth, the 

secondary residential parent move within fifty miles so that they could 

continue equal timesharing.

The trial court entered a Final Judgment of Dissolution of Marriage with 

a rotating timesharing plan requiring the child to spend two months with 

each parent. During those two months, the non-custodial parent would 

be allowed weekly daytime visitation with the child. Both parties filed 

motions for rehearing for a determination as to who would be the primary 

residential parent once the child reached kindergarten age. In her Motion 

for Rehearing and/or Clarification, the former wife also questioned why 

the trial court implemented a two-month rotating schedule instead of the 

Model Parental Timesharing Schedule (Instate Where Parents Reside More 

than 45 miles Apart).

The trial court denied the former wife’s Motion for Rehearing and/or 

Clarification but granted the former husband’s motion. The court issued 

an Amended Final Judgment designating the former husband as the

primary residential parent once the child reaches kindergarten age. The 

court also ordered implementation of the Model Parental Timesharing Plan 

at that time.

On appeal, the former wife argues that the trial court erred by ordering 

a rotating timesharing plan that neither party requested in their pleadings 

or at any time during trial. She also argues that the trial court’s decision 

regarding the child’s residence upon reaching kindergarten age was an 

impermissible prospective relocation of the child.

.

A trial court’s timesharing and parenting plan determination is 

reviewed for an abuse of discretion. Winters v. Brown, 51 So. 3d 656, 658 
3

(Fla. 4th DCA 2011).

“[U]nder Florida Law a trial court may not order an annual, rotating 

time-sharing where neither parent requested such a plan in the pleadings, 

nor argued for the plan at the final hearing.” Bainbridge v. Pratt, 68 So. 

3d 310, 314 (Fla. 1st DCA 2011); see also Flemming v. Flemming, 742 So. 

2d 843, 844 (Fla. 1st DCA 1999) (“The trial court did not have authority to 

rule on matters that were ‘not the subject of appropriate pleadings and 

notice.’”).

In Bainbridge, the appellate court reversed an annual rotating 

timesharing plan ordered by the trial court because it had not been 

requested by either parent in the pleadings or at the final hearing. 68 So. 

3d at 314. The first time a rotating schedule was mentioned was when the 

trial judge stated, “I think I am going to do something which I think is in 

[the minor child’s] best interests. You both may not be happy with my 

decision.” Id. at 315. The court held that due process concerns required 

a reversal of the trial court’s decision. Id.

In Flemming, the court reversed an order with a weekly rotating 

timesharing plan because the plan was not raised by pleadings or agreed 

upon by the parties. 742 So. 2d at 844. Before trial, the parties stipulated 

that the mother would be the primary residential parent and the father 

would be the secondary residential parent. Id. However, at trial, the father 

requested that the children live an equal amount of time with each parent 

on alternating weeks. Id. The mother objected to the arrangement 

because it was not raised in the pleadings. Id. Nevertheless, the trial court 

ordered the rotating schedule. Id.

In this case, both parties agree that neither one of them requested the 

two-month rotating schedule in their pleadings or at any time during the 

trial. They both lacked notice that the trial court would consider such an 

arrangement. At the time of trial, the parties were engaged in a 

timesharing schedule whereby they split the week. The former wife had 

the child for four overnights and the former husband had the child for 

three overnights. The former husband requested that the timesharing 

schedule remain the same until the child reached kindergarten age. The 

former wife requested that the court order the Model Parental Timesharing 

Schedule (Instate Where Parents Reside More than 45 miles Apart). This

plan is designed around a primary residential parent and a secondary

residential parent, with the child spending weekends with the secondary

residential parent twice a month.

Similar to Bainbridge, the first time that a two-month rotating schedule 
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was mentioned was at the end of the trial, when the court expressed 

concerns about the child traveling back and forth over 400 miles several 

times a month. To address those concerns, the court stated that it would 

be considering longer periods of time with each parent—such as blocks of 

months. Neither party had the opportunity to present evidence or 

arguments as to whether this arrangement was in the best interest of the 

child. Because the two-month rotating timesharing plan established by 

the trial court was such a significant departure from the timesharing 

schedule requested by the parties in their pleadings and at trial, we agree 

that the trial court erred in ordering it. The wife’s due process rights were 

violated because she was not given notice that the trial court would 

consider the two-month rotating schedule and was not given the 

opportunity to present evidence on the issue. See Moore v. Wilson, 16 So.

3d 222, 224 (Fla. 5th DCA 2009) (holding that the trial court’s order for 

rotating custody violated the parties’ due process rights where neither 

party pled for or requested rotating custody).

Accordingly, we reverse and remand for further proceedings on the 

timesharing schedule. Both parties contest the mileage reimbursement 

awarded the former wife for timesharing travel. On remand, we urge the 

court to reconsider the low transportation costs awarded to the wife, taking 

into account the parties’ relative financial situations and the actual travel 

costs of implementing a timesharing plan.

The former wife also argues that the amended final judgment providing 

that the child will reside with the father once she reaches kindergarten age 

is an improper prospective relocation of the child. The Florida Supreme 

Court has held that a trial court must not make a best interest 

determination in petitions for relocation based on a “prospective-based” 

analysis. Arthur v. Arthur, 54 So. 3d 454, 459 (Fla. 2010). In Arthur, the 

trial court authorized the mother’s relocation twenty months from the date 

of the hearing. Id. Specifically, the trial court found that it was in the best 

interest of the child that the mother relocate to Michigan when the child 

turned three years old, which would occur twenty months from the date of 

the judgment. Id. at 455. The supreme court concluded that the best 

interest determination must be made at the time of the final hearing, i.e. 

“present-based” analysis. 54 So. 3d at 459.

Section 61.13001(e), Florida Statutes (2012) defines “Relocation” as “a 

change in the location of the principal residence of a parent or other person 

from his or her principal place of residence at the time of the last order 

establishing or modifying time-sharing . . . . The change of location must 

be at least 50 miles from that residence.” (emphasis added).
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In this case, the trial court’s decision regarding the child’s residence 

upon reaching kindergarten age is not a ruling on a relocation request. 

Neither parent sought to move from his or her principal place of residence,

and, under the ordered parenting plan, neither parent would be changing 

his or her residence. The parenting plan in the amended final judgment 

does not involve “relocation,” as defined in section 61.13001(e), but rather 

orders that the father become the primary residential parent once the child 

begins kindergarten. We affirm this portion of the amended final judgment 

establishing the primary residential parent and timesharing parenting 

plan.

On cross-appeal, the former husband’s contends that the trial court 

erred in determining that his credit card debt was nonmarital and that 

this error led to an inequitable distribution unsupported by findings.

Section 61.075(3), Florida Statutes (2012), requires the trial court to 

identify and value all marital assets and liabilities. Distribution of the 

marital assets and liabilities must be supported by factual findings in the 

judgment or order based on competent, substantial evidence. Kovalchick 

v. Kovalchick, 841 So. 2d 669, 679 (Fla. 4th DCA 2003). We review such 

findings for an abuse of discretion. See Steele v. Steele, 945 So. 2d 601, 

602 (Fla. 4th DCA 2006). However, we review de novo the trial court’s legal 

conclusion that an asset or liability is “marital” or “nonmarital,” as defined 

in the statute. Mondello v. Torres, 47 So. 3d 389, 392 (Fla. 4th DCA 2010)

(“A trial court’s legal conclusion that an asset is marital or nonmarital is 

subject to de novo review.”); Smith v. Smith, 971 So. 2d 191, 194 (Fla. 1st 

DCA 2007) (“The ultimate conclusion as to whether a debt is marital or 

nonmarital is an issue of law subject to de novo review.”).

“All assets acquired and liabilities incurred by either spouse 

subsequent to the date of the marriage and not specifically established as 

nonmarital assets or liabilities are presumed to be marital assets and 

liabilities.” § 61.075(8), Fla. Stat. (2012). However, to the extent that a 

party incurred debts to cover nonmarital expenses, the debt should not be 

classified as marital debt for the purpose of equitable distribution. Fortune 

v. Fortune, 61 So. 3d 441, 445 (Fla. 2d DCA 2011) (reversing because the 

trial court classified the entire amount of a loan as a martial debt without 

making a finding as to when the debt was incurred or what the debt was 

used to pay); Walker v. Walker, 827 So. 2d 363, 364-65 (Fla. 2d DCA 2002) 

(reversing because the trial court classified the entire amount of a debt as 

a marital debt without determining which portion of the debt was used to 

pay the husband’s litigation and living expenses versus paying his 

personal income tax and property taxes).
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Here, based on the former husband’s own testimony, the trial court 

determined that the credit card debt in the former husband’s name was 

nonmarital. His testimony concerning the nature and purpose of his credit 

card expenses sufficiently overcame the presumption that the liability was 

marital. Because we find no error in the trial court’s classification of the 

former husband’s credit card debt as nonmarital, we affirm.

Affirmed in part, Reversed in part, and Remanded on direct appeal, and 

Affirmed on cross appeal.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.