       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 cross-
appeals, 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
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

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(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.




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