MICHELLE HAYMAN, APPELLANT,
v.
PAUL SLADE HAYMAN, APPELLEE
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The appellate court held that the former wife was denied procedural due process because she received inadequate notice of the contempt hearing.
[1] A party is denied procedural due process when not given reasonable notice of a hearing on a motion for contempt.
[2] Absent extraordinary circumstances, proper notice of a hearing must include written notice served a reasonable time before the hearing.
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PER CURIAM.
The former wife, Michelle Hayman, appeals an order in which the trial court directed that the parties’ minor child be placed in the custody of the former husband, Paul Slade Hayman, pursuant to the terms of the parties’ final judgment of dissolution of marriage. We find that the former wife was given inadequate notice of the hearing which preceded the trial court’s order and, therefore, reverse.
In November 1985, a final judgment of dissolution of marriage was entered awarding the primary physical residence of the parties’ minor child to the former wife under the condition that she remain in Wau-chula, Hardee County, Florida. The final judgment provided that “[i]f the Wife moves from Wauchula, Hardee County, Florida, the primary physical residence of the child shall be with the Husband as long as he remains in Wauchula, Hardee County, Florida.” Around July 1987, the former wife along with the parties’ minor child moved to Sebring, Highlands County, Florida.
On July 29, the former husband filed a motion in which he asserted that pursuant to the final judgment he was the custodial parent. In the motion, he also sought to have the former wife’s visitation lights established and his obligation to pay child support terminated.
On July 31, the former wife responded with a motion seeking to dismiss the former husband’s motion and petitioning for a modification of the final judgment’s provision relating to the primary physical residence of the minor child. The former wife was informed, however, that the first available hearing date was September 22, 1987.
On August 24, 1987, the former husband filed a motion for contempt against the former wife alleging that he had demanded that she surrender the child to him in accordance with the final judgment but that she had willfully refused to do so. The notice of hearing dated August 24, 1987, indicated that the hearing on this motion was set for 10:30 a.m. on August 25, 1987, that telephonic notice of this hearing was given to the office of the former wife’s attorney at 1:35 p.m. on August 24, 1987, and that a copy of the notice was to be hand delivered on the morning of August 25, 1987.
The record reflects that at approximately 11:00 a.m. on August 25, the former wife’s attorney filed a motion for continuance on the basis that the attorney did not learn of the scheduled hearing until 5:30 p.m. on August 24 and that she had depositions and a contested hearing scheduled for the day of August 25. The trial judge denied the motion for continuance and held the hearing without the former wife or her attorney being present.
At the hearing, the former husband testified that the former wife had promised to return the child to him by 6:00 p.m. on Sunday, August 23 because the former husband had planned to enter the child in school in Wauchula on August 24. When he finally was able to reach the former wife at 11:00 p.m. on August 23, she said she had no intention of returning the child to the former husband and that she planned to enter the child in a Sebring school. Following the hearing, the trial court entered an order directing the former wife to immediately deliver the minor child to the custody of the former husband as the primary residential parent. The former wife timely appealed that order.
We agree with the former wife’s contention that she was denied her right to procedural due process because she was not given reasonable notice of the hearing on the husband’s motion for contempt. Absent extraordinary circumstances, proper notice should include written notice served a reasonable time before the time specified for the hearing. Devoe & Raynolds Co. v. KDS Paint Co., 382 So. 2d 126 (Fla. 4th DCA 1980); Fla.R.Civ.P. 1.090(d).
Sub ju-dice, the former wife received written notice on the morning of the hearing, and the fact that the former husband wished to enter the child in school in Wauchula along with the other circumstances of this case did not warrant an “emergency hearing” such as was conducted here. The former husband’s failure to provide the former wife with reasonable notice deprived her of an opportunity to be heard and, therefore, constitutes a fundamental denial of due process. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, petition for review denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972).
We, accordingly, reverse the trial court’s order and remand for a hearing following proper notice.
Upon remand, the trial court shall give the parties an opportunity to submit evidence not only on the former husband’s motion for contempt but also on the former wife’s petition for modification. The trial court may then determine in accordance with the criteria set forth in section 61.-13(3), Florida Statutes (1987), what is in the best interest of the child at this time with regard to which parent should be designated to provide the child’s primary physical residence. In light of this disposition, we need not address the other issue raised by the former wife.
Reversed and remanded.
SCHOONOVER, A.C.J., and FRANK and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gielchinsky v. Gielchinsky, 662 So. 2d 732 (Fla. 4th DCA 1995)…that the trial court abuses its discretion in temporarily changing custody where, as here, custody was already established by a judgment and a petition to permanently change custody is pending, unless there is a real emergency. In Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988), the court reversed an order changing custody on an emergency basis where the wife did not receive notice until the morning of the hearing. The second district concluded that she was denied due process because of insufficient noti…
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Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA 1997)…uld be provided as soon thereafter as possible.” Wilson, 669 So. 2d at 1154. Failure to give notice of a hearing to the opposing party absent a true emergency deprives the opposing party of its right to procedural due process. See Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988). Similar to the case at bar, Hayman involved the transfer of a child to a different school within the context of a custody dispute. In that case, the father moved for contempt against the mother arguing that she refused to comply…
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FEE v. Usler, 761 So. 2d 361 (Fla. 5th DCA 2000)…er had interfered with visitation rights; court stated that in absence of actual emergency, court should not have proceeded, but should have afforded both parties opportunity for full hearing on petition for modification); see also Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988) (father's desire to enter child into particular school was not emergency warranting immediate change of custody pursuant to divorce decree).…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fuentes v. Shevin, 407 U.S. 67 (U.S. 1972)
- Devoe & Raynolds Co., Inc. v. KDS Paint Co., Inc., 382 So. 2d 126 (Fla. 4th DCA 1980)
- Furman v. Georgia, 409 U.S. 902 (U.S. 1972)
- Fuentes v. Shevin, 409 U.S. 902 (U.S. 1972)