HOLLIE J. MCCALEB, APPELLANT,
v.
I. LORRAINE MATHIS, APPELLEE
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In this post-dissolution modification proceeding, the trial court increased child support as requested but also unilaterally imposed a comprehensive visitation schedule that was neither pleaded nor litigated by the parties. The appellate court reversed the visitation modification, finding it violated due process, while affirming the child support increase.
The court held that the trial court's order modifying visitation was voidable because it adjudicated issues not presented by the pleadings nor litigated by the parties, thereby denying the husband fundamental due process. The child support increase was affirmed as it was properly requested and adjudicated.
[1] A trial court may not adjudicate issues not presented by the pleadings or tried by the consent of the parties, as doing so violates fundamental due process.
[2] A party seeking modification of a final judgment must specifically plead the relief sought.
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Join FLexlaw to unlock all legal intelligence“The trial court's order denied the husband fundamental due process as it adjudicated issues not presented by the pleadings nor litigated by the parties. Such an order is at least voidable on appeal.”
Establishes the core legal principle that courts cannot adjudicate issues outside the pleadings and litigated issues without violating due process.
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Join FLexlaw to unlock all legal intelligenceThe original dissolution decree, incorporating the parties' agreement, provided that the husband would have visitation during Easter and Christmas in …
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RYDER, Chief Judge.
In this post-dissolution proceeding, the wife, I. Lorraine Mathis, sought a modification of the final decree. She requested an increase in child support and a specific visitation schedule “at times other than summer and holidays.” The original judgment, incorporating the parties’ agreement, provided that the husband, Hollie J. McCa-leb, would have the right to visit his two minor children during school holidays for Easter and Christmas in even numbered years, for one month during the summer, and at other times as were mutually agreeable to the parties.
At hearing on the wife’s petition, the trial judge increased the amount of child support. Two days later, he entered a written order incorporating the child support increase and a comprehensive detailed two-page visitation schedule. The schedule included provisions for visitation on weekends, holidays, birthdays, and vacations. It also addressed contingencies such as waiting, cancellations and moving. The husband appeals from this order, contending that a wholesale revision of the parties’ agreement as to visitation was unauthorized when it was neither raised in the pleadings nor tried by the consent of the parties. We agree and reverse. The husband does not contest the increase in child support.
The wife’s petition for modification asked the court only to set a specific schedule for visitation at times other than summer and holidays. Although Florida Rule of Civil Procedure 1.190(b) allows issues not raised by the pleadings to be treated as such when tried by the express or implied consent of the parties, that did not happen in this case. Rather, at the beginning of the hearing, the wife’s attorney stated, “I don’t think visitation is a problem. We are requesting an increase in child support.” Thereafter, the only evidence presented about visitation was the wife’s testimony that she did not know whether the children would return from visits with their father at 6:00 p.m., 7:00 p.m. or 8:00 p.m.
The trial court’s order denied the husband fundamental due process as it adjudicated issues not presented by the pleadings nor litigated by the parties. Such an order is at least voidable on appeal. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Gligorijevic v. Gligorijevic, 427 So. 2d 1060 (Fla. 2d DCA 1983); Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA 1982); Wallace v. Wallace, 413 So. 2d 1261 (Fla. 2d DCA 1982); Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982).
Accordingly, we affirm only that portion of the trial court’s order increasing child support payments from $25.00 per week per child to $32.50 per week per child, and reverse and set aside that portion of the order modifying the husband’s visitation with the minor children.
Affirmed in part, reversed in part.
CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)…court’s prior order without a petition for modification being filed. As the order adjudicated issues neither presented by the pleadings nor litigated by the parties, it denied the wife fundamental due process and must be reversed. McCaleb v. Mathis, 459 So. 2d 1162 (Fla. 2d DCA 1984); see also, Cortina. At the hearing, in response to questions, the father indicated a desire that the mother’s visitation rights be restricted, but he did not seek to terminate them completely. He never filed a motion for restrict…
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Newberry v. Newberry, 831 So. 2d 749 (Fla. 5th DCA 2002)…CA 1994)(wife specifically listed child support as disputed issue in case management conference and filed support guideline worksheet). Compare, Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)(objection at time issue raised); McCaleb v. Mathis, 459 So. 2d 1162 (Fla. 2d DCA 1984)(not tried by implied consent based, in part, on counsel’s statements). The record in this case evidences that appellant tried the global issue of child support by implied consent. In addition to filing the child support guideline…
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S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So. 2d 790 (Fla. 4th DCA 1989)…2d 404, 406 (Fla. 2d DCA 1985): A trial court may not decree relief that has neither been requested by way of any pleading nor tried by consent, [citations omitted] See also Antonio v. Antonio, 493 So. 2d 53 (Fla. 2d DCA 1986); McCaleb v. Mathis, 459 So. 2d 1162 (Fla. 2d DCA 1984). Accordingly, the order appealed from is reversed and the cause is remanded to the trial court for further proceedings. GLICKSTEIN and GUNTHER, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982)
- Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA 1982)
- Wallace v. Wallace, 413 So. 2d 1261 (Fla. 2d DCA 1982)
- Gligorijevic v. Gligorijevic, 427 So. 2d 1060 (Fla. 2d DCA 1983)