DONNA GELATO, APPELLANT,
v.
PETER BASCH, APPELLEE
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The Fourth District Court of Appeal reversed a trial court order temporarily transferring primary child custody from mother to father, holding that the trial court violated due process by changing custody at a hearing not noticed for that issue and without allowing the mother to present all her evidence.
The trial court committed reversible error by changing primary residence, even temporarily, at a hearing not noticed for that issue. The court violated the mother's due process rights by preventing her from presenting additional witnesses who could demonstrate the children were not adversely affected by her lifestyle and marital plans.
[1] A trial court commits reversible error by changing the primary residence of minor children, even temporarily, at a hearing not noticed for that issue.
[2] A party is denied due process when a trial court enters an order changing the primary residence of children without proper notice that such an issue would be addressed.
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Join FLexlaw to unlock all legal intelligence“the court 'jumped the gun' and thereby denied the mother due process”
Establishes that the trial court violated due process by entering a custody change without proper notice
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Join FLexlaw to unlock all legal intelligenceDonna Gelato and Peter Basch were parties to a custody dispute over their two minor children. Basch filed a post-final judgment modification petition …
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PER CURIAM.
We reverse the order of the trial court which temporarily transferred the primary residence of the parties’ two minor children from the mother to the father. The order appealed was entered during the pendency of a post final judgment modification proceeding, brought by the father, seeking a permanent change in the children’s primary residence based on alleged change in circumstances. See McGlamry v. McGlamry, 608 So. 2d 553 (Fla. 4th DCA 1992). The father alleged that the mother’s involvement with a succession of male companions, some of whom stayed overnight at the home occupied by the mother and children for various periods of time, was detrimental to the best interests of the children warranting modification.
At a hearing held on February 22, 1995, the issue was resolved temporarily by having the trial court enter an agreed order that the mother would not have other persons living on the premises. Nonetheless, on April 27, 1995, the mother filed a motion now indicating that she planned to marry again, and seeking relief from the agreed order to allow her new husband-to-be to move into her home. The mother’s motion was the only matter noticed for the hearing held on May 10, 1995, although the father’s modification petition remained pending.
Following testimony only from the mother and her fiance, and notwithstanding there was no issue of temporary change in primary residence noticed for the May 10 hearing, the trial court proceeded to enter the order now appealed. The order changed primary residence to the father, recounting the mother’s lifestyle concerning other men, finding this was a “very disruptive atmosphere for the children,” and that the father’s lifestyle was more stable.
While we understand the trial court’s commendable concern for the welfare of the children, the court “jumped the gun” and thereby denied the mother due process. Although the mother was allowed to put on some testimony, she had every reason to believe this was only in furtherance of her motion to allow her fiance to move in the house. Moreover, the mother argues on appeal that she had additional witnesses (a teacher, neighbor), who would demonstrate the children were not adversely affected by the mother’s lifestyle and marital plans. These witnesses did not have an opportunity to testify. Thus, we can find no evidentiary support for the trial court’s finding that the mother’s lifestyle was disruptive to the children. More importantly, the trial court committed reversible error in changing primary residence, even on a temporary basis, at a hearing that was not noticed for that issue. Begens v. Begens, 617 So. 2d 360 (Fla. 4th DCA 1993).
Reversed and remanded for further proceedings consistent with this opinion.
STONE, POLEN and PARIENTE, JJ., concur.
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Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)…d, but sole issue noticed for hearing was child’s school progress). Due process is violated when a court modifies visitation, changes primary residence, or alters child support when the notice of hearing does not include this issue. Gelato v. Basch, 658 So. 2d 664, 665 (Fla. 4th DCA 1995)(“More importantly, the trial court committed reversible error in changing primary residence, even on a temporary basis, at a hearing that was not noticed for that issue.”); Hammond v. Hammond, 492 So. 2d 837, 838 (Fla. 5th D…
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Borden v. Guardianship OF Elsa Marie Borden-Moore, 818 So. 2d 604 (Fla. 5th DCA 2002)…itation modification petition were abridged by summary denial of his petition because no motion seeking summary adjudication of petition was filed, and father never had opportunity to present evidence at a properly noticed hearing); Gelato v. Basch, 658 So. 2d 664-65 (Fla. 4th DCA 1995) (mother’s due process rights were violated where temporary change of custody was ordered at hearing which concerned only mother’s motion to allow her fiancé to move into her house with the children). Reasonable notice prior t…
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Murphy v. Lenora D. Ridgard, 757 So. 2d 607 (Fla. 5th DCA 2000)…matter was not at issue when, following the hearing on the mother’s pending motions for injunctive relief and temporary attorney’s fees, the trial court summarily denied the father’s second amended petition seeking modification. See Gelato v. Basch, 658 So. 2d 664 (Fla. 4th DCA 1995)(temporary change of custody violated mother’s due process rights where it was ordered at close, of hearing which mother had every reason to believe concerned only her motion to allow her fiancé to move into her house with the chi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McGLAMRY v. McGLAMRY, 608 So. 2d 553 (Fla. 4th DCA 1992)
- Begens v. Begens, 617 So. 2d 360 (Fla. 4th DCA 1993)