RAUL DAIZI, APPELLANT,
v.
MARIA DAIZI, APPELLEE
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A husband appeals a final order awarding the entire marital home to his wife in lieu of child support after an expedited trial where he was imprisoned and absent. The court reversed, holding that the wife's motion for expedited trial limited issues to the disposition of the home only, and she could not obtain relief she had not indicated she would seek, particularly in the husband's absence.
The court held that although trial courts have power to effect equitable distribution and award property in lieu of child support, they cannot do so when the movant has limited the issues by motion, obtained expedited trial on that basis, and the opposing party was not given fair notice and opportunity to be heard on the actual relief sought. The award must be reversed and the case remanded for new trial with proper notice.
[1] A party seeking an expedited trial setting may be bound by the issues explicitly limited in their motion for such setting.
[2] A party is entitled to fair notice of the issues to be tried before a judgment can be rendered against them.
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Join FLexlaw to unlock all legal intelligence“the motion for expedited setting clearly indicated that no claim for alimony or child support would be presented. Similarly, the motion indicated that the wife desired to be added to the title of the property, but did not indicate that she would seek an award of the property in its entirety.”
Establishes that the wife limited the scope of issues by her motion and did not indicate she would seek the entire property award.
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Join FLexlaw to unlock all legal intelligenceThe husband inherited the marital home, which was encumbered by a mortgage at the time of inheritance, giving him special equity in the property. The …
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PER CURIAM.
This case involves a husband’s appeal from a final order awarding the wife the marital home in lieu of child support after an expedited trial, where the husband was imprisoned, was not present at the hearing, and claims due process and notice violations. We reverse.
The appellee wife’s motion for an expedited trial setting expressly stated that there were no questions relating to alimony or child support; that the sole issue was disposition of the marital home; and that the wife was being prejudiced by having to make mortgage payments on the home although she was not shown on the title as an owner of the property. The expedited trial proceeded with the appellant husband absent. The final judgment awarded the entire title to the marital residence to the wife, both as special equity in recognition of mortgage payments she had made, and in lieu of child support payments. The house had been inherited by the husband and, since it was encumbered by a mortgage at the time of inheritance, the husband enjoyed a special equity in the property to the extent of the net equity at the time of inheritance.
While the trial court has the power to effect equitable distribution, including the power, where appropriate, to award the husband’s equity to the wife in lieu of child support, see Butler v. Butler, 409 So. 2d 517, 518 (Fla. 5th DCA 1982), in the present case the motion for expedited setting clearly indicated that no claim for alimony or child support would be presented. Similarly, the motion indicated that the wife desired to be added to the title of the property, but did not indicate that she would seek an award of the property in its entirety. The effect of the motion was to limit the issues to be considered, in exchange for which the wife obtained an expedited trial setting. Having on the eve of trial limited the issues to be tried, the wife was not at liberty to go to the final hearing and, in the absence of the husband, obtain relief she had indicated she would not seek. See, e.g., Gelkop v. Gelkop, 384 So. 2d 195, 201 (Fla. 3d DCA 1980) (“defendant ... not given a fair opportunity to defend against the claim on which the judgment was based”) and cases cited therein; Williams v. Williams, 227 So. 2d 746, 748 (Fla. 2d DCA 1969) (same).
We therefore reverse the award of the marital home and remand for a new trial, so that appellant husband has an opportunity to be heard with respect to the relief sought by the wife. We do not doubt the authority of the court to render a decree granting the relief sought by the wife, but that can be done only after fair notice to the husband of the issues actually to be tried.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Vargas v. Vargas, 648 So. 2d 285 (Fla. 4th DCA 1995)…for five years, after which time further proceedings would be held to redetermine the child support issue. We affirm based on Held v. Held, 617 So. 2d 358 (Fla. 4th DCA 1993); Gill v. Gill, 504 So. 2d 67 (Fla. 2d DCA 1987); see also Diazi v. Diazi 549 So. 2d 754, 755 (Fla. 3d DCA 1989). The trial judge was primarily interested in assuring that the support of the children was provided for during the husband’s prison term. We commend him for his effort and solution. GLICKSTEIN, WARNER and PARIENTE, JJ., con…
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Coffy v. Coffy, 321 So. 3d 230 (Fla. 4th DCA 2021)…b the parties’ mutual agreement to the pre-payment of part of the husband’s child support obligation for both of his children through the transfer of equity in the marital home that the wife will utilize to support her children. See Daizi v. Daizi, 549 So. 2d 754, 755 (Fla. 3d DCA 1989) (“[T]he trial court has the power to effect equitable distribution, including the power, where appropriate, to award the husband’s equity to the wife in lieu of child support.”); see also Butler v. Butler, 409 So. 2d 517, 518…
Authorities Cited
- Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)
- Petti v. State, 227 So. 2d 746 (Fla. 4th DCA 1969)
- Daniels v. State, 409 So. 2d 517 (Fla. 5th DCA 1982)