Carolyn Massiel Luna v. Jonathan Victoriano Hernandez

Third District Court of Appeal
State of Florida
Opinion filed November 26, 2025.
Not final until disposition of timely filed motion for rehearing.
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No. 3D25-2045
Lower Tribunal No. 16-1845-FC-04
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Carolyn Massiel Luna ,
Appellant,
vs.
Jonathan Victoriano Hernandez ,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Scott M.
Bernstein, Judge.
Karen B. Parker, P.A., and Karen B. Parker, for petitioner.
Weinbaum P.A., and Lane Weinbaum (Coral Springs), for respondent.
Before FERNANDEZ, MILLER, and BOKOR, JJ.
PER CURIAM.

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Appellant, the mother, seeks review of a nonfinal order suspending her
timesharing and granting appellee, the father, exclusive timesharing with
their son for a defined period of time.1 The mother is otherwise prohibited
from having any contact with the child during the specified time. 	The trial
court ordered the change in timesharing at a case management conference,
following claims of parental alienation. Because the notice setting the matter
for conference did not forewarn the parties they would be litigating a potential
change in timesharing, we are constrained to reverse. See Busch v. Busch,
762 So. 2d 1010, 1010–11 (Fla. 2d DCA 2000) (reversing the dissolution of
marriage final judgment because “the trial court violated [the wife’s] right to
due process by changing the custody of the minor children without the
requisite pleadings or notice of hearing” as “the wife was given no warning
that the custody of her children was at stake” prior to hearing at issue);
Schnicke v. 	Schnicke, 	533 So. 	2d 337, 	337–38 (Fla. 	5th DCA 	1988)
(reversing the custody order because “[n]o pleadings were filed requesting a
change of custody nor was there any notice that any such change of custody
1 The mother first filed an appeal of a nonfinal order, followed by a petition
for certiorari. We find the order is a nonfinal, appealable order under Florida
Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b because it concerns “the
rights or obligations of a party regarding child custody or time-sharing under
a parenting plan.” Id.; see also Fla. R. App. P. 9.040(c) (obliging the court to
apply the correct remedy).

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would be heard or considered by the court”); Foreman v. James, 305 So. 3d
656, 656–57 (Fla. 3d DCA 2020) (holding trial court was required to conduct
an evidentiary hearing preceded by appropriate notice to “comport with due
process requirements” prior to issuing order removing minor child for a period
of ninety-four days). In doing so, we express no opinion on the merits of the
modification of custody decision.
Reversed and remanded.