Ashley Lally v. Maximilian Lally

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
ASHLEY LALLY,
Appellant,
v.
MAXIMILIAN LALLY,
Appellee.
No. 4D2025-0692
[December 10, 2025]
Appeal of a nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Anastasia M. Norman, Judge; L.T. Case
No. 562017DR000837.
Rebecca Mercier Vargas and Stephanie L. Serafin of Kreusler-Walsh,
Vargas & Serafin, P.A., Palm Beach Gardens, and Mark T. Luttier of
Critton, Luttier & Coleman, LLP, West Palm Beach, for appellant.
Matthew S. Nugent and Joshua J. Arbogast of Nugent Zborowski, North
Palm Beach, for appellee.
MAY , J.
A mother appeals a nonfinal order modifying an existing parenting plan
and timesharing schedule for the children she shares with the father. She
argues, among other things, the trial court erred in modifying the plan and
schedule 	when 	the 	father 	failed 	to 	show 	a 	material 	change 	in
circumstances as statutorily required. 	We agree and reverse.
• 	The Facts
A final judgment dissolving the parties’ marriage and incorporating a
parenting plan containing a timesharing schedule was entered in 2018.
Five years later, the father filed a “Verified Notice of Relocation and
Supplemental Petition for Relocation and Petition to Modify Parenting Plan
and Time-Sharing Schedule to Include a Long-Distance Parenting Plan
and Other Relief.” 	The father alleged he was permanently relocating to
North Dakota. 	He argued it was in the best interest of the two minor
children to modify the parenting plan to provide nine consecutive days of

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timesharing with him each month. 	The father indicated the children
would continue to be homeschooled, and the mother should inform him of
any assignments during his timesharing. 	The father cited both sections
61.13001 and 61.13, Florida Statutes.1
The mother objected to the petition and argued it failed to meet the
requirements for relocation under section 61.13001. 	To the extent the
petition was “deemed to be a Petition 	to Modify Parenting Plan and
Timesharing,” 	the 	mother 	argued 	the 	father 	had 	failed 	to 	allege 	a
substantial, 	material, 	and 	unanticipated 	change 	in 	circumstances
warranting modification of the existing timesharing schedule.
The father filed an amended verified notice of relocation, an amended
supplemental petition for relocation, and an amended petition to modify
the parenting plan and timesharing schedule. 	The father reiterated and
incorporated by reference the prior petition’s allegations but now advised
he had already relocated to North Dakota. The father argued his relocation
constituted a material change of circumstances affecting 	the current
timesharing of both parents.
The father once again cited both sections 61.13 and 61.13001, Florida
Statutes. 	The father requested the trial court to permit relocation and
asked 	for 	modification 	of 	the 	time-sharing 	plan. 	The 	mother 	again
objected and argued the father’s relocation and modification requests were
not in the children’s best interest.
The court set the matter for trial. A few days prior to the trial, the father
filed a proposed long-distance parenting plan to have the children spend
nine consecutive days with him each month in either North Dakota or
Florida, and various holidays, birthdays, and school breaks. 	Under his
proposed plan, the father would be afforded 139 overnights per year and
the mother would receive 226 overnights. 	The mother objected to the
proposed plan as exceeding the relief requested in the father’s Amended
Supplemental Petition for Relocation and Modification.
The parties filed a joint pretrial stipulation listing the issues of law and
fact to be determined at trial to include “Relocation” and “Modification.”
The parties agreed the father was requesting the court “[a]llow relocation
and modification of the time-sharing schedule to include a long-distance
1 Section 61.13001, Florida Statutes, is titled “Parental Relocation with a Child.”
Section 61.13, Florida Statutes, provides for the development of a parenting plan
and its subsequent modification due to a material change in circumstances.

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parenting plan . . . as in the children’s best interests based on the evidence
presented.”
At 	trial, 	the 	father 	argued 	a 	combination 	of 	sections 	61.13 	and
61.13001, 	as 	his 	relocation 	and 	change 	of 	employment 	from 	a 	law
enforcement work schedule to farming constituted a substantial, material
change in circumstances. 	The mother responded the father’s voluntary
relocation was neither a material change in circumstances nor in the
children’s best interest. 	She suggested the father was limited to his
petition’s request of nine days in either North Dakota or Florida every
month. 	The mother argued that modification could neither be based on
the father’s occupational change, which had occurred three years earlier,
nor his voluntary relocation to North Dakota.
Ultimately, 	the 	trial 	court 	issued 	a 	supplemental 	final 	judgment
granting the father’s amended petition in part. 	The trial court examined
the factors under sections 61.13001 and 61.13 and made findings as to
each. 	The 	trial 	court 	concluded 	the 	father 	had 	not 	proved 	by 	a
preponderance of the evidence that relocating the children to North Dakota
and adopting his proposed parenting plan was in the best interest of the
children. 	But the trial court found the father had proved it was in the
children’s best interest to have some timesharing with him. The court also
found the father’s permanent relocation constituted a substantial and
material change which warranted modification of the timesharing plan.
The court ultimately crafted its own parenting plan.
The 	mother 	moved 	for 	rehearing, 	clarification, 	and 	to 	reopen 	the
evidence. 	The mother claimed the trial court’s denial of the father’s
request 	for 	relocation 	while 	simultaneously 	granting 	his 	request 	for
modification 	of 	the 	timesharing 	plan 	produced 	an 	irreconcilable
inconsistency contrary to section 61.13001 and Hull v. Hull, 273 So. 3d
1135 (Fla. 5th DCA 2019). 	Finally, the mother asserted the trial court
violated her due process rights by granting the father unrequested relief.
The trial court granted the mother’s motion in part. 	The trial court
rejected the mother’s argument that it awarded more timesharing than the
father 	requested 	and 	noted 	it 	had 	the discretion 	to 	develop 	its 	own
parenting plan in the children’s best interest. 	The trial court issued an
amended supplemental final judgment with an attached parenting plan.
From 	the 	amended supplemental 	final judgment, 	the 	mother 	now
appeals.

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• 	The Analysis
“[T]he question of whether the trial court properly applied the relocation
statute [section 61.13001] is a matter of law, reviewed de novo.” Chalmers
v. Chalmers, 259 So. 3d 878, 879 (Fla. 4th DCA 2018) (quoting Milton v.
Milton, 113 So. 3d 1040, 1041 (Fla. 1st DCA 2013) (internal quotations
omitted)). 	However, we review a decision on a petition to relocate with a
minor child for an abuse of discretion. 	Id.
We 	review 	an 	order 	modifying 	a 	parenting 	plan 	and 	timesharing
schedule under section 61.13 for an abuse of discretion. 	Lane v. Fuller,
387 So. 3d 462, 464 (Fla. 5th DCA 2024) (citation omitted).
The first issue to be addressed is which statute’s requirements applied
to the court’s decision granting the father’s petition. Section 61.13 relates
to modification of the parenting and timesharing plans, while section
61.13001 relates to relocation.
o 	Relocation v. Modification
The mother argues the trial court “misapplied the relocation statute by
modifying the existing parenting plan and timesharing schedule after
finding relocation [wa]s not in the children’s best interest.” 	(Emphasis
added). 	The father responds the mother misinterprets the trial court’s
order because the trial court granted his request to relocate based on the
best interests of the children. 	The lines between the statutes here are
blurred because the father petitioned for permission to relocate without
the children, and the trial court’s order conflates the two issues.
Despite the father’s two petitions, one to relocate and one to modify,
the trial court treated the document as one, referring to it as the “Amended
Supplemental Petition.” 	The trial court then granted the father’s request,
but failed to specify upon which statute the relief was granted. Our review
of the order reveals the modification of the parenting and timesharing plan
was based on section 61.13 (the modification statute) because the father
had already relocated and was not the primary custodial parent. 	This
perspective is enhanced by the trial court’s initial finding that relocation
was not in the children’s best interest.
Section 61.13001, Florida Statutes, addresses parental relocation. 	It
applies when a parent wants to move a significant distance from his
current residence. 	If the parents cannot reach an agreement, the statute
requires the relocating parent to file a petition to relocate and include “[a]

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proposal for the revised postrelocation schedule for access and time-
sharing.” 	§ 61.13001(3)(a)6., Fla. Stat. 	The nonrelocating parent may
then file an objection, at which point the relocating parent “may not
relocate, and must proceed to a temporary hearing or trial and obtain court
permission to relocate.” 	§ 61.13001(3)(d), Fla. Stat. 	This did not occur
here, as the father relocated without the children prior to any hearing.
The 	parent 	“wishing 	to 	relocate 	has 	the 	burden 	of 	proving 	by 	a
preponderance of the evidence that relocation is in the best interest of the
child.” § 61.13001(8), Fla. Stat. If the relocating parent meets this burden,
the burden shifts to the nonrelocating parent “to show by a preponderance
of the evidence that the proposed relocation is not in the best interest of
the child.” § 61.13001(8). This did not occur either, as the father relocated
without the children prior to any hearing.
While both statutes require consideration of the children’s best interest,
only 	section 	61.13(3) 	(the 	modification 	statute) 	requires 	proof 	of 	a
substantial and material change in circumstances. 	The trial court found
a 	substantial 	and 	material 	change 	in 	circumstances, 	illustrating 	its
reliance on section 61.13(3).
The father cited section 61.13 in both his initial and amended pleadings
requesting modification. 	That statute provides:
For purposes of . . . modifying a parenting plan, including a
time-sharing schedule, . . . the best interests of the child must
be the primary consideration. A . . . parenting plan, or a time-
sharing schedule may not be modified without a showing of a
substantial 	and 	material 	change 	in 	circumstances 	and 	a
determination that the modification is in the best interests of
the child.
§ 61.13(3), Fla. Stat. 	The statute then contains a long list of factors to
consider in determining the best interests of the child. 	§ 61.13(3)(a)–(t),
Fla. Stat.
The 	burden 	to 	establish 	a 	substantial 	and 	material 	change 	in
circumstances is on the movant, and “it is an extraordinary burden.” Puhl
v. Puhl, 260 So. 3d 323, 324 (Fla. 4th DCA 2018) (quotation and citation
omitted).
Here, the father’s petitions sought approval of his relocation (although
he had already relocated by the time of the hearing) and modification of
the parenting plan and timesharing plan. 	At no time did the father

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request 	permission 	to 	relocate 	the 	children. 	At 	that 	point, 	only
modification of the parenting plan and timesharing schedule was really
left to be resolved.
Significantly, the trial court did not find the father’s relocation to be in
the children’s best interest. 	But the trial court did find it was in the
children’s best interest to have some timesharing with the father. 	Under
the modification statute, the father also had to show a substantial and
material change in circumstances.
We agree with the mother’s primary argument that the father failed to
prove a substantial change in circumstances independent of his voluntary
relocation. See Ness v. Martinez, 249 So. 3d 754, 758 (Fla. 1st DCA 2018)
(“Relocation alone is not necessarily sufficient to constitute a substantial
change 	of 	circumstances 	warranting 	modification 	of 	the time-sharing
arrangement.”); Rossman v. Profera, 67 So. 3d 363, 366 (Fla. 4th DCA
2011) (“Courts, including this court, have held that relocation alone does
not constitute a substantial change in circumstances.” (collecting cases));
Shafer v. Shafer, 898 So. 2d 1053, 1055–56 (Fla. 4th DCA 2005) (“[C]ourts
have routinely held that relocation alone is not a substantial change in
circumstances to support a modification of custody.”).
Rossman 	and 	Ness 	consistently 	reinforce 	the 	general 	rule 	that
relocation alone is insufficient to support a finding of a material change in
circumstance but also illustrate the exception to that rule when the
relocating parent is the custodial parent. 	Here, the father is not the
custodial parent; the mother is the custodial parent. 	Thus, the general
rule applies.
The 	non-custodial 	father’s 	voluntary 	relocation 	was 	insufficient 	to
constitute a material change in circumstances. 	His change in occupation
also failed to support a material change in circumstances as that change
occurred three years prior to these proceedings. 	“A determination of
parental responsibility, a parenting plan, or a time-sharing schedule may
not be modified without a showing of a substantial and material change
in circumstances and a determination that the modification is in the best
interests of the child.” 	§ 61.13(3), Fla. Stat. (emphasis added).
Simply put, the trial court erred in finding the father’s relocation alone
was a substantial and material change in circumstances. For this reason,
we reverse. 	Our reversal moots the mother’s other arguments.2
2 Those issues include the application of section 61.0013, the trial court’s
analysis of the children’s best interests, and the award of unpled relief.

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Reversed and remanded.
GROSS and FORST , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.