NORA KAREN THOMAS, APPELLANT,
v.
DARNELL F. HARRIS, JR., APPELLEE
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A Florida appellate court reversed a trial court's award of temporary custody to the appellee, finding that the trial judge improperly modified custody based on evidence regarding smoking in the home—an issue that was not properly noticed or pleaded in the motion for temporary custody, thereby violating the parties' due process rights.
The court held that a trial court cannot modify a custody judgment unless the issue of modification is properly presented by appropriate pleadings, each party is given notice and opportunity to respond, and a hearing is held with necessary proof adduced. The trial court's order modifying custody based on the smoking issue, which was not properly noticed or pleaded in the motion for temporary custody, violated due process rights and was therefore reversed.
[1] A court cannot modify a judgment unless the issue of modification is properly presented by appropriate pleadings, each party is given an opportunity to respond, and a hea…
[2] A trial court violates due process rights when it addresses matters not noticed for a hearing.
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Join FLexlaw to unlock all legal intelligence“A court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced.”
Establishes the fundamental procedural requirement that modification of judgments requires proper notice and pleadings
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Join FLexlaw to unlock all legal intelligenceThe appellee filed a motion for temporary custody alleging solely that the child's school progress had deteriorated. At the hearing, the trial judge l…
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PER CURIAM.
Appellant seeks review of a non-final order awarding appellee temporary custody of the parties’ minor child. We reverse and remand for further proceedings.
The order appealed from followed a noticed hearing on appellee’s motion for temporary custody alleging solely that the child’s progress in school had deteriorated. At the onset of the hearing, the trial judge announced that testimony would be limited to the issue of whether cigarette smoking occurred in appellant’s home in the presence of the minor child. An earlier petition to modify a final judgment of paternity alleged, inter alia, that the child suffers from asthma which is aggravated by the cigarette smoking of appellant’s new husband and mother-in-law. However, this specific allegation is not found in the motion for temporary custody which was the subject of the hearing below.
A court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced. Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986); DeWalt v. DeWalt, 305 So. 2d 792 (Fla. 4th DCA 1975). Cortina v. Cortina, 98 So. 2d 334 (Fla.1957). Herein, the parties came to the hearing expecting to present testimony on the issue of the child’s school progress reports. Instead, they were questioned about cigarette smoking in the home and any related effect on the asthmatic child. It is clear the parties were not prepared to present evidence on this issue,1 as manifested in part by the complete lack of medical testimony adduced regarding the detrimental effect of smoking upon the child. On a dearth of evidence, the lower court ordered a change in custody. We believe the effect of the trial court’s order was to improperly modify custody without appropriate notice, pleadings, or factual predicate. See Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988) (trial court violates due process rights when it addresses matters not noticed for a hearing).
Because the issue of smoking and its effect on the child was not before the court herein by proper notice upon the motion for temporary custody, we reverse and set aside the order awarding appellee temporary custody and remand for further proceedings on this subject as well as any other issues bearing upon the best interests of the child.2
BOOTH, MICKLE and LAWRENCE, JJ., concur. . At oral argument, both parties conceded surprise.
. Our decision in this respect makes it unnecessary for us to consider appellant's contention that, on the merits, the record shows that the change of custody amounted to an abuse of discretion. We do, however, note that there may very well exist, upon a proper showing substantiated by medical evidence, circumstances wherein a smoking environment may be determined to be detrimental to, and not in the best interests of, the welfare of a child.
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Neumann v. Kenna-Joy Neumann, 857 So. 2d 372 (Fla. 1st DCA 2003)…, 721 So. 2d 731 (Fla. 1st DCA 1998) (reversing an order transferring child custody and canceling husband’s requirement to pay child support where the notice for hearing stated that the court would entertain a motion for contempt); Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994) (reversing change of child custody due to deleterious effect of tobacco smoke on child where notice of hearing specified issue raising question of custody change was poor progress in school). Here, the only issue before the tri…
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Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)…on of the contempt hearing about her smoking and in regard to the credibility of her witness’s testimony because her friend is also a smoker. In addition, the wife attached documents to the motion, including this court’s opinion in Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994), a ease in which the same judge presided below and which also involved the issue of smokers and custody of an asthmatic child. Also attached to the motion was the transcript of a television interview, in which the presiding judge…1 / 2
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Maya Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000)…721 So. 2d 731, 734 (Fla. 1st DCA 1998) (reversing order transferring child custody and canceling husband’s requirement to pay child support where the notice for hearing stated that the court would entertain a motion for contempt); Thomas v. Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) (reversing change of child custody due to deleterious effect of tobacco smoke on child where notice of hearing specified issue raising question of custody change was poor progress »in school). The Second District has spe…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988)
- Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)
- DeWALT v. DeWALT, 305 So. 2d 792 (Fla. 4th DCA 1975)