KENNETH M. JOHNSON, APPELLANT,
v.
MAVIS W. HENCK, APPELLEE
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The court held that the order terminating visitation and requiring psychiatric evaluations must be reversed because the motion seeking such relief was not properly noticed.
[1] A court order terminating visitation and directing psychiatric evaluations is reversible when the motion seeking such relief was not properly noticed for hearing.
[2] A party seeking modification of a temporary order must provide proper notice of the hearing to the opposing party.
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Join FLexlaw to unlock all legal intelligenceAppellant/father appealed a non-final order terminating his visitation with his child and requiring psychiatric evaluations, entered after a hearing o…
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PER CURIAM.
This is an interlocutory appeal seeking review of a non-final order which terminates Appellant/father’s visitation with his minor child in the custody of Appel-lee/mother and which orders both parties to undergo psychiatric evaluation. Appellant is also enjoined from bothering, harassing or interfering with Appellee or the child. This order was entered following a hearing held July 23, 1985 on two motions, one filed by Appellant, the other filed by Appellee. Appellant’s “Motion for Modification” sought increased visitation with the minor child and contained a “Notice of Hearing” for July 23, 1985. Appellee’s “Counter Petition for Modification of Temporary Order” requested that Appellant’s visitation rights be terminated and that he be ordered to submit to psychiatric evaluation. Appellee’s counter petition was filed only a few days before the July 23 hearing date and included no notice of hearing. No other notice of hearing was provided orally or in writing. Nevertheless, the court heard and considered both motions and entered the order appealed which essentially grants the relief requested by Appellee’s motion.
Because Appellee’s motion was not noticed, we reverse the order terminating visitation and directing psychiatric evaluations. The case is remanded to the trial court so that it may be heard upon proper notice. Fla.R.Civ.P. 1.090(d); Edward L. Nezelek, Inc. v. Sunbeam Television Corporation, 413 So. 2d 51 (Fla. 3d DCA) pet. for rev. den., 424 So. 2d 763 (Fla.1982); Devoe & Raynolds Company, Inc. v. KDS Paint Company, Inc., 382 So. 2d 126 (Fla. 4th DCA 1980).
The denial of Appellant’s motion for increased visitation has not been complained of, so the order is affirmed in this respect. We are unable to reach the remaining two points on appeal because they were not noticed. Also, the July 23 hearing was unreported and we could not address the merits of the resulting order even if proper notice had been given.
AFFIRMED in part, REVERSED and REMANDED in part.
THOMPSON, ZEHMER and BAR-FIELD, JJ., concur.
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Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988)…he respondent-husband. A trial court violates a litigant’s due process rights when it expands the scope of a hearing 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…
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Kylie C. Doyle v. Owens, 881 So. 2d 717 (Fla. 1st DCA 2004)…custody, residential care, or visitation with respect to a child is an issue.”); see also McGlamry v. McGlamry, 608 So. 2d 553, 554 (Fla. 4th DCA 1992) (applying Rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation); Johnson v. Henck, 482 So. 2d 588, 589 (Fla. 1st DCA 1986) (reviewing non-final order terminating visitation); cf. In the Interest of Temp. Custody of L.M. & T.M., 788 So. 2d 1114, 1117-18 (Fla. 2d DCA 2001) (treating appeal of non-final visitation order as a petition for writ of ce…
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Lawrence v. Peyton, 9 So. 3d 670 (Fla. 3d DCA 2009)…temporary order granting visitation in pending paternity case); McGlamry v. McGlamry, 608 So. 2d [*671] 553, 554 (Fla. 4th DCA 1992) (applying Rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation in dissolution case); Johnson v. Henck, 482 So. 2d 588, 589 (Fla. 1st DCA 1986), it likely would be an extraordinary circumstance in which relief might be obtainable here on an order that defers ruling upon visitation for a short period, even if, as all parties now agree, the reason for calling an evide…
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
- Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)
- Devoe & Raynolds Co., Inc. v. KDS Paint Co., Inc., 382 So. 2d 126 (Fla. 4th DCA 1980)