NANCY S. LEVITT, APPELLANT,
v.
MYLES H. LEVITT, APPELLEE

Fla. 2d DCA | 1984-08-24
No. 84-606
GRIMES, A.C.J., and SCHEB, J., concur.
454 So. 2d 1070 Florida District Court of Appeal, Second District (1984) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Nancy Levitt appeals an interlocutory order in which the trial court reduced her ex-husband's child support obligation during a hearing ostensibly held only on her motion for continuance. The appellate court reversed, holding that the trial court violated due process by hearing and deciding the child support reduction issue without providing proper notice to the appellant.


Holding

The trial court erred and violated due process by hearing and determining the child support reduction issue, which was not the subject of appropriate notice to the appellant. Although appropriate pleadings on child support reduction existed in the record, the notice of hearing indicated only the motion for continuance would be considered, leaving the appellant unprepared to defend against a reduction.


Headnotes

[1] A trial court errs by reducing child support obligations at a hearing solely on a motion for continuance.

[2] A trial court violates due process rights by hearing and determining matters not included in the notice of hearing.

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Key Quotes

“We find that the trial court violated appellant's due process rights by hearing and determining matters that were not the subject of appropriate notice.”

Establishes the core holding that due process requires notice of the issues to be decided at a hearing.

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Facts & Procedural History

The trial court approved a joint stipulation modifying a 1980 dissolution judgment on June 8, 1983. The appellee subsequently filed a supplemental pet…

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Opinion of the Court
SCHOONOVER, Judge.

SCHOONOVER, Judge.

This is an interlocutory appeal from an order temporarily reducing child support payments previously awarded to the appellant, Nancy S. Rodin, formerly Levitt. We hold the trial court erred in entering an order temporarily reducing the appellee’s child support obligation at a hearing on a motion for continuance. We, therefore, reverse.

On June 8, 1983, the trial court approved a joint stipulation entered into between the parties and ordered them to comply with its terms and conditions. The stipulation modified a final judgment of dissolution of marriage that had been rendered on September 25, 1980.

Shortly thereafter, the appellee, Myles H. Levitt, filed a supplemental petition for modification of the joint stipulation seeking to reduce the agreed-upon child support. A hearing on this petition was scheduled and rescheduled several times. On February 9, 1984, the appellant moved to continue the next scheduled hearing. Appellant’s motion set forth the grounds for the continuance and was supplemented by two supporting affidavits. On the same day, appellant filed, and served upon the appellee’s attorney, a notice of hearing. The notice informed appellee’s attorney that the motion for continuance would be heard on February 27, 1984.

At the conclusion of the hearing on appellant’s motion for continuance, the court granted the motion, but over appellant’s objection, reduced appellee’s obligation for child support for the period of the continuance. This appeal timely followed.

We find that the trial court violated appellant’s due process rights by hearing and determining matters that were not the subject of appropriate notice. Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979). In Barreiro, the Third District Court of Appeal held that a court may not expand the scope of a hearing set only upon a particular motion. In that case, without prior notice, without appropriate pleadings, and over the objection of the husband, the trial judge expanded the scope of an emergency hearing. In reversing, the court stated it was plainly improper and clearly in violation of appellant’s due process rights to hear and determine matters that were not the subject of appropriate pleadings or notice.

In the instant case, appropriate pleadings on the issue of reducing child support can be found in the record, but the notice of hearing indicates that only appellant’s motion for continuance was to be considered at the hearing. Appellant was not prepared, nor was she required to be prepared, to argue against a reduction in child support. See Hardee, County Commissioners v. Florida Department of Commerce, Division of Employment Security, 343 So. 2d 842 (Fla. 2d DCA 1976) (due process requires that employers be afforded notice of issues to be heard in unemployment compensation proceedings in order to present facts and evidence bearing on the claim ant’s entitlement to benefits); Munroe Memorial Hospital v. Thompson, 388 So. 2d 1338 (Fla. 1st DCA 1980) (employer lacked adequate notice regarding claim based on a knee injury where notice referred to effect of alleged back injury).

Appellee’s reliance upon Sapp v. Warner, 105 Fla. 245, 481 (Fla.1932) is misplaced. A court of equity has jurisdiction over the enforcement of its own order and may alter the method of enforcement of its order. The court may only exercise this jurisdiction, however, in appropriate proceedings. Sapp. Accordingly, the trial court erred ip modifying the child support provisions of its previous order in the hearing on a motion for continuance.

We, therefore, reverse and remand for proceedings consistent herewith.

GRIMES, A.C.J., and SCHEB, J., concur.


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Citator

Cited By

  • Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988)
    …aring to address and determine matters not noticed for hearing. Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979); Johnson v. Henck, 482 So. 2d 588 (Fla. 1st DCA 1986); Christie v. Casaday, 486 So. 2d 622 (Fla. 5th DCA 1986); Levitt v. Levitt, 454 So. 2d 1070 (Fla. 2d DCA 1984). Further, the existence of a separate extra-judicial agreement between the parties concerning responsibility for the child’s education — assuming that there was such an agreement and that it gave the father the exclusive right to…
  • Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)
    …hat “[a] trial judge cannot modify a judgment calling for child support payments unless the issue of modification is presented by appropriate pleadings and each party is given notice and the opportunity to be heard on such issue”); Levitt v. Levitt, 454 So. 2d 1070 (Fla. 2d DCA 1984)(finding wife’s due process rights violated when at hearing on motion for continuance, court reduced child support). In the instant case, the notice for hearing stated that the court would entertain a motion for contempt. Neither…
  • Hully v. Hully, 653 So. 2d 1138 (Fla. 2d DCA 1995)
    …the court’s need to be able to enforce its own order. A court, however, may only enforce or alter the method of enforcement of its own order in appropriate proceedings, and the proceedings in the instant case were not appropriate. Levitt v. Levitt, 454 So. 2d 1070 (Fla. 2d DCA 1984). One of the purposes of a default is to help speed up an action and thereby prevent a dilatory or procrastinating defendant from impeding a plaintiff in the establishment of his claim. It is not a procedure intended to furnish an…

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