PAMELA SUE CHRISTIE, APPELLANT,
v.
RICKI A. CASADAY, APPELLEE
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The court held that the award of costs and attorney's fees must be reversed because no notice was given to the appellant or her attorney of the hearing on the motion for fees.
Appellant appealed an order assessing costs and attorney's fees in a prolonged domestic relations case. The attorney's fee award encompassed time spen…
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SHARP, Judge.
Pamela Sue Christie appeals from an order assessing costs ($80.00) and attorney’s fees ($5,100.00) in a prolonged series of domestic relations proceedings involving the primary custody of the parties’ minor child. The case commenced in Florida in 1982 when the former wife filed a petition for habeas corpus, and in 1983 she filed an alternative petition to enforce a California judgment. These petitions were denied and that order was appealed to us in 1984 and affirmed in 1985. In 1984 the former wife filed an additional petition to determine primary custody of the child, which was eventually withdrawn and voluntarily dismissed in 1985.
The attorney’s fee award was assessed in this latter proceeding, although it encompassed attorney time in other matters. From the record it is not clear whether or not the trial court had jurisdiction to award attorney’s fees for the appeal, an HRS dependency hearing which did not involve the former wife, and the earlier proceedings which were appealed to us. The affidavit clearly encompasses all of these other matters.
In any event the award is fatally flawed because no notice was given either to appellant or to her attorney of the hearing on appellee’s motion for attorney’s fees. This is contrary to Florida Rule of Civil Procedure 1.090(d) which provides:
A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing. (Emphasis added). Failure to give notice is an essential departure from the Rules and due process.1 Hilton v. Florio, 317 So. 2d 83 (Fla. 3rd DCA 1975); Polland v. Visual Graphics Corp., 240 So. 2d 835 (Fla. 3rd DCA 1970). Accordingly, the cost and attorney fee judgment appealed in this case is
REVERSED.
DAUKSCH and UPCHURCH, JJ., concur. . Art. I, § 9, Fla. Const.
Cases With Similar Vibessemantic neighbors from the corpus
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Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988)…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 child’s education — assuming that there was such an agree…
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Yavitz v. Martinez, 568 So. 2d 103 (Fla. 3d DCA 1990)…st was instead made ore tenus at a hearing requesting the imposition of a charging and retaining lien with respect to the wife. The husband is correct. The husband is entitled to notice and an opportunity to be heard. See, e.g., Christie v. Casaday, 486 So. 2d 622 (Fla. 5th DCA 1986). The final judgment against the husband is reversed, but without prejudice to the filing of a motion and scheduling of a hearing on proper notice to the husband. See generally Edward F Gerace, P.A. v. Hayden, 550 So. 2d 1143, 114…
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Bull v. Bartley Bull, 584 So. 2d 171 (Fla. 1st DCA 1991)…usband had neither requested fees in a pleading nor given the former wife notice that fees would be at issue.1 Johnson v. Johnson, 346 So. 2d 591, 593 (Fla. 1st DCA 1977). Accord Meek v. Meek, 486 So. 2d 663 (Fla. 5th DCA 1986); Christie v. Casaday, 486 So. 2d 622 (Fla. 5th DCA 1986); Bob v. Bob, 312 So. 2d 798 (Fla. 3d DCA 1975). REVERSED. SMITH and ALLEN, JJ., concur. . It is not essential for a prevailing party to request attorney’s fees when the party is entitled to such fees by statute, but a request…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Polland v. Visual Graphics Corp., 240 So. 2d 835 (Fla. 3d DCA 1970)
- Simon v. Simon, 317 So. 2d 83 (Fla. 3d DCA 1975)
- Hilton v. Florio, 317 So. 2d 83 (Fla. 3d DCA 1975)