Richard Bazinet v. Christina Pinkerton

FIFTH D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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Case No. 5D2025-0058
LT Case No. 2021-DR-000556
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R ICHARD B AZINET ,
Appellant,
v.
CHRISTINA PINKERTON ,
Appellee.
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On appeal from the Circuit Court for Lake County.
Michael G. Takac, Judge.
Shannon McLin, of Florida Appeals, Orlando, for Appellant.
No Appearance for Appellee.
December 19, 2025
B OATWRIGHT , J.
The 	Appellant, 	Richard 	Bazinet 	(“Father”) 	challenges 	an
order granting the expedited motion for contempt and enforcement
and for child pick up order filed by Appellee, Christina Pinkerton
(“Mother”). The trial court’s order granted the Mother’s make-up
visitation and modified the minor child’s school designation. This
modification authorized the Mother to retain the child overnight
on all school nights to accommodate the change, thereby altering

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the time-sharing schedule as well. We agree with the Father that
the trial court erred by modifying the school designation and the
time-sharing schedule. We otherwise affirm the trial court’s order
and 	limit 	this 	opinion 	to 	whether 	the 	trial 	court 	improperly
modified the final judgment within the order.
I.
The Father and the Mother are the biological parents of a 9-
year-old daughter, M.B. Though they never married, the parties
separated in early 2021, and the Mother filed a petition to formally
establish paternity and for related relief. In April 2024, a final
judgment 	of 	paternity 	(“Final 	Judgment”) 	was 	entered
establishing 	that 	the 	Father 	was 	the 	natural 	father 	of 	M.B.
Specific to this appeal, the Final Judgment established that equal
time-sharing was in M.B.’s best interest, and the schedule was
detailed 	in 	a 	court-established 	parenting 	plan. 	The 	Final
Judgment also resolved the parents’ dispute over M.B.’s education
by determining it was in her best interest to continue attending
Faith Lutheran School through the eighth grade.
In October 2024, the Mother filed the expedited motion for
contempt, 	alleging 	that 	the 	Father 	had 	willfully 	violated 	the
parenting plan and Final Judgment. The Mother argued that the
Father had withheld visitation from the Mother and enrolled M.B.
in a virtual school in violation of the Final Judgment. The Mother
specifically requested that she be awarded make-up visitation and
that M.B. be reenrolled in Faith Lutheran School.
Following a hearing on the Mother’s motion, the trial court
found the Father in willful contempt of the Final Judgment.
Although 	the 	trial 	court 	awarded 	the 	requested 	make-up
visitation, 	it 	deviated 	sua 	sponte 	from 	the 	Mother’s 	request
regarding schooling, ordering M.B.’s enrollment in The Villages
Charter School rather than Faith Lutheran School. The trial court
also ordered that M.B. stay overnight with the Mother on all school
nights “if necessary” to accommodate this change, an action that
would alter the Final Judgment’s equal time-sharing provision.
The 	trial 	court 	made 	no 	finding 	of 	a 	substantial 	change 	in
circumstances to justify modifying the Final Judgment, but it did
find the change in school and corresponding overnight visitation to

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be in the best interest of the child. The Father’s subsequent motion
for rehearing was denied.
II.
On appeal, the Father specifically challenges the portion of
the order modifying M.B.’s school designation and the resulting
alteration of the visitation schedule. The Father argues that the
modification of the Final Judgment constitutes a denial of due
process 	because 	the 	trial 	court 	acted 	without 	the 	Mother’s
necessary 	pleading 	of 	a 	substantial 	and 	material 	change 	in
circumstances which was in the best interest of M.B. Furthermore,
he argues that the trial court failed to include the required findings
in its order to support these modification standards.
“[A] court violates due process when it awards a remedy that
a party did not seek.” Eadie v. Gillis, 363 So. 3d 1115, 1117 (Fla.
5th DCA 2023). This Court has held that a trial court violates a
party’s due process rights by granting unrequested relief in a
motion 	for 	contempt—such 	as 	modifying 	a 	child’s 	school
designation—without providing proper notice to the parties. See
Velez v. Lafontaine, 318 So. 3d 630, 631−32 (Fla. 5th DCA 2021)
(finding 	that 	the 	trial 	court’s 	modification 	of 	a 	child’s 	school
placement violated the father’s procedural due process right to
notice by granting relief not requested by pleadings, where the
only motion before the court was a contempt motion in regards to
the parties’ timesharing); see also Cockrell v. Kinnett, 177 So. 3d
1041, 1042−43 (Fla. 5th DCA 2015) (reversing the trial court’s
order altering the timesharing schedule where the father only
moved 	for 	contempt 	against 	the 	mother 	and 	failed 	to 	file 	a
supplemental petition for modification).
When a final judgment determines issues concerning the care
of the child, including school choice, the trial court cannot change
or modify the school designation without applying the “substantial
change” test set forth in Wade v. Hirschman, 903 So. 2d 928,
933−34 (Fla. 2005). See Martinez v. Kurt, 9 So. 3d 54, 57 (Fla. 3d
DCA 2009); see also Segarra v. Segarra, 947 So. 2d 543, 547 (Fla.
3d DCA 2006) (“Although in . . . Wade the [court] adopted the
substantial change test for modification of a rotating custody
agreement, the same concerns apply to modification of any aspect

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of the final judgment.”). To satisfy the substantial change test, the
petitioner must plead and show both that the circumstances have
substantially, materially changed since the original judgment was
entered and that the child’s best interests justify modifying the
judgment. Segarra, 947 So. 2d at 547. Thus, without a properly
pled modification petition, it is error to enter a modification order.
See Clark v. Clark, 35 So. 3d 989, 991 (Fla. 5th DCA 2010) (holding
that if a petitioner fails to allege that a substantial and material
change has occurred and the trial court fails to make a similar
finding, the modification order should be reversed).
In this matter, the trial court modified the Final Judgment
without providing the Father due process. The Mother’s motion did
not request a change to either the school designation or the time-
sharing plan established in the Final Judgment. However, the trial
court’s order modified both. Specifically, the trial court changed
the school designation without request and, additionally, its order
had the potential effect of eliminating the Father’s overnight
visitation on school nights, thereby modifying the existing time-
sharing plan. By granting relief not sought by either party and
failing to place the Father on proper notice, the trial court’s order
constituted an improper modification of the Final Judgment and a
deprivation of the Father’s right to due process.
Furthermore, the Mother’s motion was improperly pled for the
purpose of modifying the Final Judgment. The Mother failed to
plead the requisite substantial change in circumstances or that the
modification 	would 	be 	in 	the 	best 	interests 	of 	the 	child.
Accordingly, the trial court lacked a properly pled petition for
modification to justify consideration of these changes.
In addition, the trial court’s order does not make a finding that
there was a substantial change in circumstances warranting a
modification of either the change in school designation or the time-
sharing 	agreement. 	We 	acknowledge 	that 	the 	trial 	court
mentioned that it found these modifications to be in the best
interest of the child. Even so, the trial court must first determine
that a substantial change in circumstances warrants modification
before considering the best interest of the child. See Clark, 35 So.
3d 989, 990−91 (holding that a determination of a substantial
change in circumstances is a prerequisite to determining if the

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modification is in the best interest of the child). Reversal of the
order is therefore required as to these points.
III.
We reverse the portion of trial court’s order regarding the
modification of M.B.’s school designation and related amendment
to the time-sharing plan, which provided the Mother discretion to
eliminate 	the 	Father’s 	overnight 	visitation 	on 	school 	nights.
However, we affirm the trial court’s order in all other aspects.
A FFIRMED, in part; R EVERSED, in part.
JAY , C.J., and W ALLIS, J., 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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