SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2025-0177
Lower Tribunal No. 2022-DR-000783
DYLAN WYRICK,
Appellant,
v.
LISA WYRICK n/k/a LISA BANKS,
Appellee.
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County.
John S. Carlin, Judge.
September 2, 2026
STARGEL, J.
Dylan Wyrick (“Former Husband”) appeals from an order granting an
“Amended Motion for Contempt and to Compel Compliance with Parenting Plan.”
Former Husband argues that the trial court committed fundamental error in sua
sponte modifying the parenting plan when modification was neither requested by the
parties nor properly noticed. We agree and reverse.
The parties were granted a divorce on June 16, 2023, and have minor children
who are subject to a parenting plan. After the divorce was finalized, Lisa Banks (“Former Wife”) filed an amended motion, alleging that Former Husband was not
complying with the parenting plan and requesting the following relief:
[t]hat the court find the Father in contempt of court, that the court orders
the Father to comply with the Final Judgment and Parenting Plan,
provide supplemental parenting time to make up for the lost time,
orders the parents to use Family Wizard, and orders the parents and the
oldest daughter to participate in family counseling with a therapist that
is agreeable to both parties, and that the Father pay the Mother her
attorney’s fees and costs in this matter.
Prior to a hearing on the matter, the parties received a notice that clearly stated
the following: “MOTION: Petitioner’s Amended Motion for Contempt and to
Compel Compliance with Parenting Plan. Date: December 12, 2024.” However,
from this hearing, the lower court also modified the time-sharing portion of the
parenting plan entered on June 16, 2023.
Though Former Husband’s argument is unpreserved, “[a] denial of due
process constitutes fundamental error that may be raised for the first time on appeal.”
Schneider v. Tirikian, 397 So. 3d 1070, 1074 (Fla. 3d DCA 2024). “Fundamental
error is defined as error which ‘goes to the essence of a fair and impartial trial, error
so fundamentally unfair as to amount to a denial of due process.’” Olivera v. State,
58 So. 3d 352, 353 (Fla. 1st DCA 2011) (quoting Sparks v. State, 740 So. 2d 33, 35
(Fla. 1st DCA 1999)).
A court cannot modify a time-sharing plan “unless the court’s jurisdiction has
been properly invoked by appropriate pleadings, proper service of process has been
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had and there is given proper notice and opportunity to be heard on that issue.”
Fulcher v. Allen, 363 So. 3d 1173, 1175 (Fla. 6th DCA 2023) (emphasis added);
Chan v. Addison, 386 So. 3d 1033, 1035 (Fla. 6th DCA 2024); Busch v. Busch, 762
So. 2d 1010, 1011 (Fla. 2d DCA 2000); Richmond v. Richmond, 537 So. 2d 1039,
1040 (Fla. 5th DCA 1988).
Former Husband was entitled to notice and an opportunity to be heard on the
matter of a modification of the time-sharing plan. “Notice to legally interested
parties so that they can assert their claims is the essence of the procedural due process
protections provided by the Florida Constitution.” In re Adoption of a Minor Child,
593 So. 2d 185, 189 (Fla. 1991) (citing Art. I, § 9, Fla. Const.); Shaw v. Shaw, 455
So. 2d 1156, 1157 (Fla. 5th DCA 1984) (“Due process applies to hearings to modify
custody awards . . . .”). Though Former Wife’s amended motion merely sought a
contempt order and to compel compliance with the existing parenting plan, the final
order sua sponte modified the parenting plan without any notice given to Former
Husband.1 “The denial of due process rights, including the opportunity to be heard,
to testify, and to present evidence, is fundamental error.” Maddox v. Maddox, 357
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The trial court’s modification of the time-sharing plan was also erroneous because its jurisdiction to modify the time-sharing plan had not been invoked by an appropriate pleading seeking modification. However, this error was not preserved and is not fundamental, and so our reversal of the trial court’s order is based only on the lack of due process, which is a fundamental error.
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So. 3d 270, 274 (Fla. 2d DCA 2023) (quoting Weiser v. Weiser, 132 So. 3d 309, 311
(Fla. 4th DCA 2014)).
The trial court committed fundamental error in granting relief that was neither
requested nor noticed. Accordingly, we reverse and remand for the trial court to
strike the portion of its order modifying the parties’ time-sharing portion of the
parenting plan.
REVERSED and REMANDED.
MIZE and KAMOUTSAS, JJ., concur.
Julie Newton, Richard Ruhl and Alexander Villatte, of Ruhl Law, P.A., Port Charlotte, for Appellant.
Lisa Banks, Fort Myers, pro se.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
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