DEBORAH KAY VAZQUEZ, APPELLANT,
v.
MARK ANTHONY VAZQUEZ, APPELLEE
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In this family law appeal, a Florida court reversed a temporary custody modification order, finding that the trial judge violated due process by preventing the custodial mother from presenting witnesses and testimony at the hearing. The court held that custody modification requires a full hearing with opportunities for all parties to testify.
The court reversed the custody modification order, holding that a parent seeking custody modification has an extraordinary burden to establish both a substantial change in circumstances and that the modification serves the child's best interests. This requires a full hearing where all parties and their witnesses have the opportunity to testify. Denying the parent the opportunity to testify or present witnesses constitutes error and a denial of due process.
[1] A party is denied due process when the trial court modifies a final judgment of dissolution without allowing the party to present testimony or witnesses.
[2] A party seeking a change of custody bears the burden of establishing a substantial change in circumstances and that the modification is in the child's best interest.
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Establishes the legal standard for custody modification, requiring proof of both substantial change in circumstances and best interest of child.
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Join FLexlaw to unlock all legal intelligenceA final dissolution judgment in November 1989 granted the mother (appellant) primary residential custody of her two-year-old son, Matthew, with the fa…
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THOMPSON, Judge.
Deborah Kay Vazquez, mother and former wife, appeals a non-final order modifying a final judgment of dissolution. The non-final order changed the primary residential custody of a minor child from the appellant to Mark Anthony Vazquez, the former husband and the child’s father. This change was temporary and the trial judge scheduled a future hearing on all pending issues. We reverse because the appellant was denied due process.
A final order of dissolution was entered as to the appellant and appellee on 15 November 1989. The final judgment of dissolution provided that both parents would share parental responsibility for their son, Matthew. He was two years old at the time the order was entered. Appellant was awarded primary residential custody with frequent and continuing contact with Matthew by his father, the appellee. The trial court also ordered that the appellee pay $300.00 biweekly as child support.
On 31 October 1992, the appellant was served with a verified supplemental petition for modification of final judgment. A hearing was scheduled for 4 November 1992. The appellee was seeking temporary physical custody of the minor child and temporary abatement or termination of his obligation to pay child support. Appellee alleged a substantial change in circumstances existed because Matthew had been living with him for over a year and the appellant had visited the child only twice. This was vehemently disputed by the appellant.
Both parties appeared at the hearing, but no witnesses were sworn to offer testimony. The trial judge heard argument from the lawyers representing the parties. Even though the appellant had subpoenaed a witness to present testimony, the trial judge did not allow the witness to testify. At the end of the hearing the trial judge modified the primary residential custody on a temporary basis so that each party would spend alternating seven-day periods with the child. Appellant’s attorney objected, arguing that the appellee had not shown or proven a substantial change in circumstances that would warrant a modification of the original custody order and that witnesses available to testify had not been heard by the trial judge. He asked the judge to maintain the status quo until a full hearing could be conducted. The trial judge responded, “Please, please, I have a long day ahead of me. Who’s going to create an order?”
All parties agree that the parent seeking a change of custody has an extraordinary burden. See McGregor v. McGregor, 418 So. 2d 1073, 1074 (Fla. 5th DCA 1982).
Because a trial court has less discretion in a modification proceeding, Jablon v. Jablon, 579 So. 2d 902, 903 (Fla. 2d DCA 1991), the noncustodial parent must establish that 1) a substantial change in the condition of one or more of the parties has occurred and 2) the best interest of the child will be promoted by the change. (Emphasis supplied.) See Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991).
This presumes that both parents will have the opportunity for a full hearing where their witnesses and the parties themselves are available to offer testimony. If there is no full hearing, the appellate court must reverse the decision of the trial court. See Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983).
In the case sub judice, the appellant was not given the opportunity to testify or to present a witness who was present to testify on her behalf. She was deprived of her right to participate in the hearing. This was error. See Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993).
REVERSED and REMANDED for evidentiary hearing on modification of custody and visitation.
HARRIS, C.J., and GOSHORN, J., concur.
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Citator
Cited By (14 total)
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Wilson v. Blaine Alan Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996)…ourt has explained that in order to conduct a proper inquiry into these two issues both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify. Vazquez v. Vazquez, 626 So. 2d 318, 319 (Fla. 5th DCA 1993). The mother is correct that the instant record does not contain sufficient evidence to support the conclusion that a temporary change in custody was warranted. As noted above, the father was required to prove both a substan…
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Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998)…dge immediately announced his decision, without giving either party an opportunity to make closing argument. Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 6th DCA 1993), and the denial of this right is fundamental error. See Lopez v. Lopez, 689 So. 2d 1218, 1219, n. 1. Moreover, due process requires that a party be given the opportunity to present closing argument. Strong v. Mt Dora Growers Coop…
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Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996)…. 3d DCA 1988) (citing In re Gregory, 313 So. 2d 735 (Fla.1975)). In this case the trial court deprived the former husband of the right to present a witness who was available, thereby depriving him of his right to a full hearing. Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 5th DCA 1993). The Florida Supreme Court, addressing a report which dealt with a social investigation and recommendation utilized by the trial court pursuant to section 61.20, Florida Statutes, contemplated that the preparer of such a report…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Cary Arnold, 579 So. 2d 902 (Fla. 4th DCA 1991)
- McGREGOR v. McGREGOR, 418 So. 2d 1073 (Fla. 5th DCA 1982)
- Begens v. Begens, 617 So. 2d 360 (Fla. 4th DCA 1993)
- Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991)
- Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983)