LISA MARIE BRADY, F/K/A LISA MARIE JONES, APPELLANT,
v.
DAVID RICHARD JONES, APPELLEE
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A Florida appellate court reversed a trial court order that terminated a mother's visitation rights and prohibited telephone contact with her daughter, finding that the court improperly modified a custody judgment without proper pleadings or notice of the issues to be litigated.
A court cannot modify a judgment unless the issue of modification is properly presented through appropriate pleadings and each party is given an opportunity to be heard. The trial court's termination of visitation and prohibition of telephone contact constituted an improper modification without proper procedure and violated the mother's due process rights.
[1] A court cannot modify a prior judgment unless the issue of modification is properly presented through appropriate proceedings and all parties are given an opportunity to…
[2] A judgment adjudicating issues neither presented by the pleadings nor litigated by the parties is voidable on appeal.
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Join FLexlaw to unlock all legal intelligence“A court cannot modify any judgment unless the issue of modification is properly presented to it by appropriate proceedings and each party is given an opportunity to be heard on the issue.”
Establishes the fundamental procedural requirement that modifications must be properly pleaded and noticed
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Join FLexlaw to unlock all legal intelligenceThe parents were divorced in 1982 with initial custody awarded to the mother. In 1985, custody was modified to award sole custody to the father with r…
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PER CURIAM.
Appellant, Lisa Marie Brady, formerly known as Lisa Marie Jones, appeals from an order terminating visitation rights with her daughter, Christina Marie Jones. We reverse.
The appellant (mother) and the appellee, David Richard Jones (father), were divorced in 1982. The final judgment initially awarded custody of the daughter to the mother, but was modified in 1985 to award sole custody to the father and reasonable, limited, and supervised visitation to the mother. Several months later, the mother filed a motion for expansion of visitation rights and a motion seeking to have the father held in contempt of court for failing to allow visitation. A hearing was held, and the court denied the motions. The court additionally suspended and terminated visitation rights, prohibited the mother from talking to her daughter on the telephone, restrained both parties from directly or indirectly coming about, harassing, annoying, or threatening each other, personally or by agent, and restrained the father from making disparaging remarks about the mother in the daughter’s presence.
The mother filed a timely notice of appeal. She argues that the court erred in terminating her visitation rights and in prohibiting her from talking to her daughter on the telephone. We agree.
A court cannot modify any judgment unless the issue of modification is properly presented to it by appropriate proceedings and each party is given an opportunity to be heard on the issue. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957). A judgment entered upon a matter entirely outside of the issues made by the pleadings cannot stand, and where an issue is neither presented by the pleadings, nor litigated by the parties, a decree adjudicating such issue is, at least, voidable on appeal. Cortina; See Fla.R.Civ.P. 1.190(b). In this case, the parties had notice only of the expansion of visitation and contempt issues raised in the mother’s motions. The court not only denied those motions, but additionally terminated visitation privileges and telephone contact. This amounted to an improper modification of the 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 restriction of visitation, and even had he moved orally for such restriction at the hearing, the oral motion would have been insufficient because the issue was not tried by the express or implied consent of the parties. See Fla.R.Civ.P. 1.190(b); Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971); Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974).
The husband argues that where an emergency affecting the best interests of the child exists, the trial court has the authority to change or modify custody even where the proper pleadings have not been filed. Childress v. Childress, 309 So. 2d 581 (Fla. 3d DCA 1975). The trial court did not find that any emergency existed.
We, accordingly, reverse without prejudice to the husband’s right to file an appropriate pleading directed to the issues of visitation and telephone contact and to the trial court’s consideration of those issues. As the mother did not appeal the other portions of the trial court’s order, we do not address the court’s consideration of those matters.
Reversed and remanded.
SCHOONOVER, A.C.J., and FRANK and HALL, JJ., concur.
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Laloggia-Vonhegel v. Vonhegel, 732 So. 2d 1131 (Fla. 2d DCA 1999)…onHe-gel, the trial court’s jurisdiction to hear these issues was not invoked or perfected and could not serve as a basis for the trial court’s order transferring custody. See Schnicke v. Schnicke, 533 So. 2d 337 (Fla. 5th DCA 1988); Brady v. Jones, 491 So. 2d 1272, 1273 (Fla. 2d DCA 1986). Further, on the record before us, there is insufficient evidence to ground a finding that it would be in the children’s best interest to be placed in Mr. VonHe-gel’s custody, even temporarily. The custodial parent’s reloca…
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Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)…quirements of due process in cases such as the instant case. See also, Fisher v. Whiteside, 541 So. 2d 1209 (Fla. 2d DCA 1988)(holding that court lacked jurisdiction to modify visitation where it dismissed the modification petition); Brady v. Jones, 491 So. 2d 1272, 1273 (Fla. 2d DCA 1986)(“As the order [terminating visitation] adjudicated issues neither presented by the pleadings nor litigated by the parties, it denied the wife fundamental due process and must be reversed.”); Vanoy v. Johnson, 459 So. 2d 453…
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Lochner v. Monaco, Cardillo & Keith, P.A., 551 So. 2d 581 (Fla. 2d DCA 1989)…e does not contend that it was so amended or that the appellant had notice of an impending money judgment. Where an issue is not presented by the pleadings, nor litigated by the parties, a judgment entered on that issue cannot stand. Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986). [*584] Furthermore, other than by charging lien, a trial court has no authority to enter an order - or judgment requiring a party to pay for his representation in a proceeding. Conroy v. Conroy, 370 So. 2d 1188 (Fla. 2d DCA 1979)…
Previewing 3 of 15 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)
- Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974)
- Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)
- Hollie J. McCALEB v. Mathis, 459 So. 2d 1162 (Fla. 2d DCA 1984)
- Childress v. Childress, 309 So. 2d 581 (Fla. 3d DCA 1975)