CURTIS T. ANTONIO, APPELLANT,
v.
SHARON FAYE ANTONIO, APPELLEE
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A father appealed an order denying his petition to modify a divorce judgment regarding custody of minor children. The court reversed because the trial court denied the petition without holding a hearing on the permanent custody issue, denying the father his due process right to be heard.
A trial court cannot modify a decree unless the issue is presented in appropriate proceedings and each party is afforded an opportunity to be heard. The trial court erred in denying the father's petition without a hearing on the permanent custody issue, and the order must be reversed and remanded.
[1] A court cannot modify a final judgment unless the issue before it is presented in appropriate proceedings and each party is afforded an opportunity to be heard.
[2] A decree adjudicating an issue neither presented by the pleadings nor litigated by the parties during a hearing is voidable upon appeal.
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Join FLexlaw to unlock all legal intelligence“A court cannot modify a decree unless the issue before it is presented in appropriate proceedings and each party is afforded an opportunity to be heard on the issue.”
Establishes the fundamental principle requiring due process and opportunity to be heard before modification of a decree
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Join FLexlaw to unlock all legal intelligenceCurtis and Sharon Faye Antonio divorced on February 15, 1982, with the mother awarded custody of their three minor children. On January 29, 1985, the …
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PER CURIAM.
Appellant, Curtis T. Antonio, appeals from an order denying his petition to modify a final judgment. We reverse.
The appellant (father) and the appellee, Sharon Faye Antonio (mother), were divorced on February 15, 1982. The final judgment awarded custody of the parties’ three minor children to the mother. On January 29, 1985, the father filed a petition to modify the final judgment with respect to temporary and permanent custody of the children. A hearing was held on the issue of temporary custody on February 4, 1985. The court entered an order taking the issue of temporary custody under advisement and ordering the Department of Health and Rehabilitative Services (HRS) to do a social investigation and submit written recommendations to the court. Upon receipt of the written recommendations, the court entered an order on May 10, 1985, denying the father’s petition to modify the final judgment. The father filed a motion for rehearing on the grounds that he never received a final hearing on the issue of temporary custody and that he was denied the right to have his case heard on the issue of a permanent change of custody. The court denied the motion for rehearing, and the father filed a timely notice of appeal.
We find that the trial court erred in denying, without a hearing, the father’s petition to modify the final judgment. A court cannot modify a decree unless the issue before it is presented in appropriate proceedings and each party is afforded an opportunity to be heard on the issue. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Manning v. Varges, 413 So. 2d 116 (Fla.2d DCA 1982). A decree adjudicating an issue neither presented by the pleadings nor litigated by the parties during a hearing on the pleadings is, at least, voidable upon appeal. Cortina; Manning. The only hearing in this case was held on the issue of temporary custody, at which time the court took the issue under advisement and ordered a social investigation. A hearing was never held on the issue of permanent custody. The order must therefore be reversed without prejudice to further consideration of the custody issue with both parties having an opportunity to be heard.
Upon remand, each of the parties should be given an opportunity to review the HRS report for the purpose of introducing any evidence that might rebut the conclusions or recommendations contained in the report. Kern v. Kern, 333 So. 2d 17 (Fla.1976).
Reversed and remanded.
CAMPBELL, A.C.J., and SCHOON-OVER and SANDERLIN, JJ., concur.
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Deysi Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. 3d DCA 1988)…2d 877 (Fla. 2d DCA 1976). The trial court erred in granting the father’s emergency petition for modification where the mother received neither notice nor an opportunity to be heard. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Antonio v. Antonio, 493 So. 2d 53 (Fla. 2d DCA 1986); Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982). Although we do not have the benefit of the transcript of the hearing held on the father’s emergency petition, the trial court’s order granting a change in Javier’s custody rev…
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Radin v. Radin, 593 So. 2d 1231 (Fla. 3d DCA 1992)…consideration of that issue, which was outside the pleadings. As the objection was well taken, the court should not have reached the issue of the July 1 payment. See Cortina v. Cortina, 98 So. 2d 334, 336-37 (Fla.1957); see also Antonio v. Antonio, 493 So. 2d 53, 54 (Fla. 2d DCA 1986). See generally Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988); Falkner v. AmeriFirst Fed’l Savings & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986). The adjudication of contempt is reversed. The former wife also move…
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S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So. 2d 790 (Fla. 4th DCA 1989)…rt held in Miceli v. Gilmac Developers, Inc., 467 So. 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.…
Authorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Kern v. Kern, 333 So. 2d 17 (Fla. 1976)
- Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982)