CHAD SAMUEL NEUMANN, FORMER HUSBAND, APPELLANT,
v.
KENNA-JOY NEUMANN, FORMER WIFE, APPELLEE
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The appellate court affirmed in part and reversed in part a final judgment of dissolution of marriage, reversing the trial court's valuation date for marital assets and liabilities and remanding for correction.
The appellate court held that the trial court erred in using March 1, 1998, as the valuation date for marital assets and liabilities, reversing that portion of the final judgment.
The former husband appealed the final judgment of dissolution of marriage and two postjudgment orders. A key issue was the trial court's selection of …
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HAWKES, J.
The Former Husband appeals from a Final Order on his Motion for Contempt and Enforcement. The Former Husband argues the trial court’s modification of his visitation schedule, in the absence of pleadings requesting such a modification, constituted an abuse of discretion and denial of due process. We agree, and reverse.
It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process. See Moody v. Moody, 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 trial court was the Former Husband’s Motion for Contempt and Enforcement. Neither the pleadings nor the notice of hearing mention or request the Former Husband’s visitation schedule be modified. We conclude that by adjudicating an issue not presented by the pleadings, the trial court violated the Former Husband’s right to due process and abused its discretion.
Accordingly, the visitation schedule in place at the time Former Husband filed his Motion for Contempt and Enforcement is restored, and the trial court’s order is
REVERSED.
VAN NORTWICK, and PADOVANO, JJ., concur.
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Cited By (17 total)
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Mizrahi v. Noemi Mizrahi, 867 So. 2d 1211 (Fla. 3d DCA 2004)…hout permission of both the father and the mother, unless the travel plans are approved by the court or until the travel restriction order is properly noticed and modified. As such, this portion of the order must be reversed. See Neumann v. Neumann, 857 So. 2d 372 (Fla. 1st DCA 2003). In addition, we do not agree with the mother’s position that if the parties intended a general restriction on the minor children traveling, then the language in the May 9,1991 order would have used “if’ and not “when.” The May…
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Austin v. Austin, 120 So. 3d 669 (Fla. 1st DCA 2013)…t is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.’ ” Norberg v. Norberg, 79 So. 3d 887, 889 (Fla. 4th DCA 2012) (quoting Neumann v. Neumann, 857 So. 2d 372, 373 (Fla. 1st DCA 2003)). Accord Mondello v. Torres, 47 So. 3d 389, 397 (Fla. 4th DCA 2010) (“[A]s a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleading…
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Albert v. Rogers, 57 So. 3d 233 (Fla. 4th DCA 2011)…the mother’s right to due process under the circumstances. “It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” [*237] Neumann v. Neumann, 857 So. 2d 372, 373 (Fla. 1st DCA 2003); accord Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”). Therefore, “…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)
- Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994)