Posted by Nydia Streets of Streets Law in Florida Child Custody

Due process usually requires that all parties be on notice as to what will be considered at trial. Notice is typically given via the pleadings. If a party tries to request something at a hearing or trial that was not included in their pleadings, the other party can object. If the other party does not object, the issue may be tried by consent. This was discussed in the case Alarcon v. Dagen, 3D22-140 (Fla. 3d DCA November 8, 2023).

In this paternity action, the father filed a proposed parenting plan prior to trial seeking shared parental responsibility with ultimate decision making authority. In his opening statement at trial, the father requested this as well as majority time-sharing. Both parties requested majority time-sharing in their closing arguments. At no time did the mother object to the father’s requests or argue that the father did not request this in his pleadings. The trial court ultimately found the father to be more credible than the mother. It made findings concerning the mother needlessly calling the police on the father failing to keep the father informed of matters concerning the child, and failing to take the child to court-ordered speech therapy. The court found that in contrast, the father kept the mother informed and took the child to appointments. The father was awarded majority timesharing and ultimate decision-making authority. The mother appealed.

The appellate court noted “If a party fails to object to the introduction of evidence raised on an unpled issue, the issue shall be treated as if it had been raised in the pleadings, so long as the opposing party had an opportunity to respond and oppose the issue with additional evidence.” It held “Here, the Father sought majority timesharing and ultimate decision-making authority on multiple occasions, including in his parenting plan submitted prior to trial, during opening statements, and again in closing arguments. Indeed, the parties argued for and against majority timesharing throughout the trial. The Mother thus had ample opportunity to respond and to oppose the issue with evidence of her own. Furthermore, the Mother did not object during trial that the Father’s requests for majority timesharing and ultimate-decision making authority were not raised in his pleadings. Accordingly, the Mother waived any argument that the Father was barred from requesting relief outside the pleadings. Given the record at trial and the lower court’s fact-findings, we find no abuse of discretion in the order under review.”

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