KARL A. SZYMANSKI, APPELLANT,
v.
CATHERINE A. SZYMANSKI, APPELLEE
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In a dissolution of marriage proceeding, the trial court awarded a judgment for unpaid temporary attorney's fees and costs to the wife without the husband receiving notice or an opportunity to be heard on that specific issue. The appellate court reversed, holding that a trial court cannot award a money judgment on matters not properly pleaded and not the subject of appropriate notice.
Yes. The trial court erred in awarding a money judgment for unpaid attorney's fees and costs to the wife in the absence of a properly pleaded request for such relief and without giving the husband notice and an opportunity to be heard on the issue.
[1] A trial court cannot award a money judgment for unpaid attorney's fees and costs absent a properly pled request for such relief.
[2] A trial court may not determine matters not noticed for hearing and not the subject of appropriate pleadings.
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Join FLexlaw to unlock all legal intelligence“A trial court cannot determine matters not noticed for hearing and not the subject of appropriate pleadings.”
Establishes the fundamental procedural requirement that a court must have proper notice and pleadings before deciding any issue.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a temporary relief order on January 31, 1991, requiring the husband to pay $3,000 in temporary attorney's fees and $1,500 in c…
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PER CURIAM.
The husband in a dissolution proceeding brings this appeal from the trial court’s judgment for attorneys’ fees and costs directed to a temporary relief order. We reverse.
On January 31, 1991, the trial court entered an order of temporary relief, which provided in pertinent part:
3.The husband shall pay temporary attorney’s fees of $3,000 and temporary costs of $1,500; both payments are due within 45 days, or March 8, 1991.
It is uncontested that the husband never made this payment to the wife, nor appealed from the trial court’s temporary relief order. On March 18, 1991, the parties were again before the court on the wife’s motion for contempt for nonpayment of monies required by the temporary relief order. The wife’s only allegation in her motion for contempt and for a restraining order was that the husband “caused the electricity to be turned off at the marital home since he has not paid the bill as ordered by this Court.” The wife’s motion for contempt made no mention of the nonpayment of temporary attorney’s fees and costs. However, during the hearing on the contempt motion the trial judge asked counsel for the wife whether she wanted the court to give her a judgment against the husband for the fees and costs, to which counsel for the wife responded yes. The trial court entered a judgment for attorney’s fees and costs, and this appeal followed.
The husband argues that the trial court erred in entering a judgment for temporary attorney’s fees and costs without giving the husband notice and an opportunity to be heard on the issue. We agree. The trial court erred in awarding a money judgment for unpaid attorney’s fees and costs to the wife, in the absence of a properly pled request for such by the wife. See Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989). A trial court cannot determine matters not noticed for hearing and not the subject of appropriate pleadings. See Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984). In the instant case the wife requested only an order of contempt directed to the husband’s nonpayment of the electric bill. Therefore the court erred in entering a judgment for temporary attorney’s fees and costs when the wife had not requested such a judgment and the husband was not on notice that such a judgment would be decided during the contempt hearing.
REVERSED.
GLICKSTEIN, C.J., and ANSTEAD and POLEN, JJ., concur.
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Kanter v. Kanter, 850 So. 2d 682 (Fla. 4th DCA 2003)…nd not the subject of appropriate pleadings. See, e.g., Fuchs v. Flicks, 840 So. 2d 449 (Fla. 4th DCA 2003); Stanley-Baker v. Baker, 789 So. 2d 353 (Fla. 4th DCA 2001); Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000): Szymanski v. Szymanski, 603 So. 2d 73 (Fla. 4th DCA 1992). It is the husband’s contention that his due process rights were violated by the trial court’s award of temporary support to the wife when the only matter noticed for hearing was his motion for a temporary injunction and that thi…
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Hendershot v. Hendershot, 742 So. 2d 444 (Fla. 4th DCA 1999)…hange in residence. We reverse the order because the trial court could not determine matters not noticed for hearing or award relief not sought by the pleadings. See McDonald v. McDonald, 732 So. 2d 505 (Fla. 4th DCA 1999); Szymanski v. Szymanski, 603 So. 2d 73 (Fla. 4th DCA 1992). We reject the argument that sufficient notice was provided by the trial court’s written warning to the appellant in a 1997 order that she could lose residential custody if she continued to deny visitation. That two-year-old warn…
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Helena Montemarano v. Montemarano, 792 So. 2d 573 (Fla. 4th DCA 2001)…requiring Appellant to vacate the premises. Due process requires that a party receive notice and an opportunity to be heard prior to entry of an order that affects her interests. Cortina v. Cortina, 98 So. 2d 384 (Fla.1957); Szymanski v. Szymanski, 603 So. 2d 73, 74 (Fla. 4th DCA 1992), Appellee did not seek exclusive use and possession of the residence. That portion of the trial court is quashed and this case is remanded for further proceedings. POLEN, C.J., STONE and TAYLOR, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984)
- Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989)