FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2022-1896
_____________________________
NATALIE MITCHELL,
Appellant,
v.
SEBASTIAN AHMED,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Joshua M. Hawkes, Judge.
December 13, 2023
PER CURIAM.
In this appeal, the mother, Natalie Mitchell, seeks review of
an amended final judgment in which the lower court modified the
parenting plan for the minor child she shares with the father,
Sebastian Ahmed. She argues the trial court exceeded its
jurisdiction in granting relief to the father without a proper
pleading and the changes the court made to the father’s
timesharing are not in the child’s best interests. We agree.
Facts
The mother and the father, who were never married, share a
minor child born in 2010. In 2012, the circuit court entered a final
judgment of paternity that included a parenting plan (the 2012
plan). The 2012 plan provided for shared parental responsibility
and a 70/30 timesharing schedule wherein the child primarily
resided with the mother. When the child was with the other
parent, the parties were directed to make the child available for
phone contact with the other parent “each week on Sunday,
Monday and Thursday nights at 6:30 pm.” The 2012 plan required
the father to pay child support and provide health insurance for
the child.
The parties lived under the 2012 plan until 2019 when the
father was arrested for health care fraud. The circuit court
awarded the mother sole custody and sole parental responsibility
in an emergency order. After the father bonded out jail to pretrial
house arrest, the parties stipulated to reinstate the father’s
timesharing under the 2012 plan subject to certain exceptions. In
March 2020, the father was convicted and sentenced to seventeen
and a half years in federal prison. 1
The Pleadings
Because this case concerns the trial court’s jurisdiction, it is
important to clarify the relief the parties requested before the final
hearing.
In a supplemental petition for modification filed immediately
after the father’s 2019 arrest, the mother sought, among other
things, to suspend or restrict the father’s timesharing until the
child’s best interests could be assessed and determined.
Several weeks after his conviction, the father filed a motion to
enforce the phone call schedule in the 2012 plan. His motion
alleged the mother was deliberately interfering with his access to
the child. The mother denied the allegations.
In April 2022, the father filed a supplemental petition for
modification that only sought relief related to child support. His
1 In 2023, the United States Court of Appeals for the Eleventh
Circuit affirmed his conviction and sentence. See United States v.
Ahmed,
73 F.4th 1363 (11th Cir. 2023).
2
supplemental petition did not seek any relief related to
timesharing or communication with the child.
Final Hearing and Amended Final Judgment
The lower court held a hearing on the supplemental petitions
and motion for enforcement. The mother, the child’s counselor, and
the child testified consistently that the child did not want to visit
the father in prison and forced visitation would be emotionally
difficult for him. The mother wanted sole parental responsibility,
but did not want to terminate the father’s parental rights. She did
not believe the child should be ordered to visit the father in prison,
but she was willing to facilitate phone contact. She testified the
father’s incarceration made it difficult for them to adhere to the
2012 plan’s phone call schedule because the father was not always
available.
For the first time at the hearing, the father asked the court:
(1) to order a ten- to fifteen-minute phone call “a few times a week,”
ideally Monday, Wednesday, and Friday between 6:30 and 8:30
pm; and (2) to order the child to visit him in prison at least four
times a year.
The lower court entered a final judgment of modification that
included a new parenting plan. The mother moved for rehearing,
arguing the court exceeded its jurisdiction by modifying the 2012
plan without a proper pleading from the father. She further argued
many of the court’s findings were unsupported and not in the best
interests of the child.
The court entered an amended final judgment that largely
rejected the mother’s arguments, essentially stating that it could
unilaterally craft a parenting plan that it deemed to be in the best
interests of the child. The amended final judgment included an
amended parenting plan (the amended plan) that required the
child to visit the father in prison four times a year. The prison
visits had to last a least three hours or the maximum amount of
time allowed by the prison, in order to count as a required visit.
The amended plan required the mother to make the child available
for the father’s phone calls on Monday, Wednesday, and Friday
between 6:30 and 9:30 pm. This appeal follows.
3
Standard of Review
We review a lower court’s order modifying a parenting plan
and timesharing schedule for an abuse of discretion. Patel v. Patel,
324 So. 3d 1001, 1003 (Fla. 1st DCA 2021); see also Bryan v.
Wheels,
295 So. 3d 889, 890 (Fla. 1st DCA 2020) (noting
modification proceedings are distinct from initial custody
determinations and “courts have considerably less discretion in
considering them ‘because [they] disrupt children's lives’”)
(citations omitted). The lower court’s decision must be supported
by competent, substantial evidence.
Id.
Analysis
The first issue on appeal is the scope of the lower court’s
subject matter jurisdiction. A parenting plan may be modified if a
movant shows a substantial and material change in
circumstances. § 61.13(3), Fla. Stat. The parties agreed the father’s
incarceration is a substantial change in circumstances.
A request to modify cannot be made by motion and must be
initiated by supplemental petition. Patel, 324 So. 3d at 1003 (“[A]
party seeking to change the ‘status quo’ of a dissolution final
judgment must do so by a supplemental petition with proper
service of process, and that the failure to do so is reversible error.”)
(citing Clark v. Clark,
204 So. 3d 589, 591 (Fla. 1st DCA 2016)); see
also Fam. L. R. P. 12.110(h) (requiring modification proceedings to
be initiated via supplemental petition, not by motion). The
mother’s supplemental petition invoked the trial court’s
jurisdiction to modify timesharing. Her petition asked the court to
suspend or restrict the father’s timesharing pending a
determination of the child’s best interests.
While the lower court had jurisdiction to consider timesharing
under the mother’s petition, the court erred in concluding it could
unilaterally craft a new parenting plan of its own accord. The
father’s supplemental petition did not plead for any relief related
4
to timesharing or communication with the child. 2 It is an abuse of
discretion and reversible error for a court to award relief that is
not requested in the pleadings. See Worthington v. Worthington,
123 So. 3d 1189, 1190 (Fla. 2d DCA 2013); Abbott v. Abbott,
98 So.
3d 616 (Fla. 2d DCA 2012); Patel, 324 So. 3d at 1003. The father
did not file a proper pleading requesting prison visitation or
modification to the phone call schedule. The first time he made the
request was at the final hearing. In granting the father’s request,
the court violated the mother’s due process right to be heard and
defend against such a significant change. See Schot v. Schot,
273
So. 3d 48, 51 (Fla. 4th DCA 2019) (reversing modifications to
parenting plan was a violation of due process when they were not
pled or proven). We reverse the portions of the amended plan
modifying timesharing and communication with the child. We
affirm the remaining portions of the amended plan as they were
either requested by the parties – sole parental responsibility by the
mother and abatement of child support by the father – or were not
modified.
Because we are reversing the timesharing and communication
portions of the amended plan, it is unnecessary to examine the
lower court’s best interests findings under section 61.13(3), Florida
Statutes, in detail. The trial court was presented with a fairly
unworkable scenario. The child no longer wants a relationship
with the father, and a continued relationship has the potential to
negatively impact him. The mother wants to do the best for the
child and follow his lead. And the father still has a right to see his
child, which the court must respect. § 61.13(2)(c)1., Fla. Stat. Many
of the findings the mother takes issue with as unsupported involve
credibility findings and weighing the interests of everyone
involved.
Ultimately, the court was presented with a substantial change
warranting modification. But because the court’s modifications to
timesharing and communication favoring the father were not
properly pled or proven, we reverse the aforementioned portions of
2 Nor does the father contest the mother’s arguments on
appeal.
5
the amended plan and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
OSTERHAUS, C.J., and LEWIS and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jason B. Gonzalez, Taylor H. Greene, and Amber Stoner Nunnally
of Lawson, Huck, Gonzalez, PLLC, Tallahassee, for Appellant.
Sebastian Ahmed, pro se, Appellee.
6
