FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-5011
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ADRIENNE SWEARINGEN,
Appellant,
v.
CHRISTOPHER SWEARINGEN,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
John Jay Gontarek, Judge.
September 5, 2018
PER CURIAM.
Adrienne Swearingen appeals a final judgment
supplementing the parenting plan set forth in the previous marital
settlement agreement approved by the court in 2013. Among other
deficiencies, the previous plan failed to provide a time-sharing
arrangement between the parties, or to specify the time that their
minor son would spend with each parent. Disputes arose regarding
time-sharing and other parenting matters, which led to
Christopher Swearingen’s petition for modification.
We find no legal error in the trial court’s decision to
supplement the previous parenting plan given its omission of a
time-sharing schedule and provisions addressing the parties’
communication rights with their child. Section 61.13(2)(b)2.,
Florida Statutes (2016), requires “at a minimum” that parenting
plans “include the time-sharing arrangements that specify the
time that the minor child will spend with each parent.” The
supplemental final judgment fixes this fundamental problem with
the prior order.
We agree with Ms. Swearingen, however, that the new plan
contains errors that must be fixed. There is a discrepancy in the
amount of time the child spends with each parent. In the child
support guidelines worksheet used by the court, Ms. Swearingen
has 287 overnights per year and Mr. Swearingen has 78
overnights. The incorporated parenting plan has Ms. Swearingen
at 303 overnights and Mr. Swearingen at 62 overnights. The
number of overnights set forth in the worksheet is incorrect,
similar to Quinn v. Quinn, 169 So. 3d 268 (Fla. 2d DCA 2015),
where there was also no accounting for the discrepancy. Thus, as
in Quinn, we reverse and remand for recalculation of the child
support award, or for further findings should the trial court decide
to deviate.
The final judgment is otherwise affirmed. We do not read the
parenting plan to require the child to change schools in Florida
away from where Ms. Swearingen teaches. If it did, it would be
erroneous without a request or record basis for changing the child’s
school (Mr. Swearingen currently resides in New Mexico). See
Dillingham v. Dillingham, 667 So. 2d 337, 338 (Fla 1st DCA 1995)
(adjudicating issues not raised by the pleadings and not litigated
during the hearing is voidable on appeal). We also do not reach the
unresolved issues involved with the Ms. Swearingen’s later-filed
motion for contempt/enforcement of the initial parenting plan,
because the trial court has not yet ruled on this motion.
AFFIRMED in part, REVERSED in part, and REMANDED.
B.L. THOMAS, C.J., and OSTERHAUS and BILBREY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Mallory R. Bennett, Tallahassee, for Appellant.
No appearance for Appellee.
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