NAJEEB KHAN, APPELLANT,
v.
DEPARTMENT OF REVENUE, APPELLEE
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The trial court entered a default child support judgment against a father as a sanction for discovery violations, but without notice that the merits of child support would be addressed at a sanctions hearing. The appellate court reversed, holding that due process requires proper notice of the specific issues to be decided and that child support awards cannot be imposed as sanctions for discovery violations.
A trial court cannot modify or award child support as a sanction for discovery violations without proper notice to the nonmoving party that the merits of child support will be addressed at the hearing. Child support is not an authorized sanction under Rule 1.380(b), and due process requires that any relief granted be within the scope of relief sought in the notice of hearing.
[1] A party must receive adequate notice that evidence on the merits of child support will be taken at a hearing.
[2] A court cannot modify a child support award unless the issue is presented with sufficient notice and an opportunity for the nonmoving party to be heard.
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Join FLexlaw to unlock all legal intelligence“It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing.”
Establishes the core due process requirement that notice must specify the relief sought
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Join FLexlaw to unlock all legal intelligenceIn a domestic relations case, the Department of Revenue filed a petition to modify child support and a motion for sanctions against the father for fai…
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FARMER, C.J.
In the underlying domestic relations case, a mother filed a motion for unspeci fied sanctions against the father for failing to comply with an outstanding order compelling discovery. At the end of a hearing on that motion, at which the father was not present or represented, the trial court entered what is in effect a default final judgment awarding child support and ar-rearages to the mother. Appealing from a subsequent order denying his motion for relief from the judgment, the father argues that he had no notice that evidence on the merits of child support would be taken at the hearing on the mother’s motion for sanctions in regard to discovery violations, and that in any case child support is not an appropriate sanction for failing to provide discovery. Although the Department of Revenue (DOR) appeared in the trial court on behalf of the former wife, it has not filed an answer brief. We reverse.
DOR had filed a petition to modify a final judgment, seeking an award of child support. In DOR’s motion for sanctions arising from the father’s failure to comply with discovery requests and an existing order compelling discovery, DOR requested only “that the Court grant its Motion for Sanctions and impose sanctions upon the Respondent pursuant to Rule of Civil Procedure 1.380(b).” Nowhere in the motion itself, or its companion notice of hearing, was there any suggestion that evidence would be taken on the merits of the underlying issue of child support obligations and arrearages.
It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing. As the court said under very similar circumstances:
“A court cannot modify a child support award unless the issue is presented ... with sufficient notice and an opportunity ior the nonmoving party to be heard. Notice of a contempt proceeding does not provide sufficient notice that a court may modify a previously imposed child support obligation.” [e.s.]
Dep’t of Revenue v. Leonardi, 696 So. 2d 472, 472 (Fla. 2d DCA 1997); see Dep’t of Revenue v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996) (child support order could not be modified at hearing on mother’s motion for contempt as father did not give notice to mother that modification would be in issue at hearing); Hammond v. Hammond, 492 So. 2d 837 (Fla. 5th DCA 1986) (notice of hearing must advise parties of specific issue that will be considered at hearing); see also Fla. Fam. L.R.P. 12.285(j) (“If the case involves child support, the parties shall file with the court at or prior to a hearing to establish or modify child support a Child Support Guidelines Worksheet in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(e). This requirement cannot be waived by the parties.” [e.s.]).
Nor could the trial court properly award child support as a sanction for a discovery violation. See Edwards v. Edwards, 634 So. 2d 284 (Fla. 4th DCA 1994) (“The trial court has discretion to sanction a party who refuses to comply with a discovery order, but that discretion is limited -by the provisions of rule 1.380(b), Florida Rules of Civil Procedure. Reduction of child support is not one of the authorized sanctions enumerated under rule 1.380(b).”). The court has ample authorized tools to deal with parents refusing to cooperate during discovery in child support litigation.
Reversed.
STONE and MAY, JJ., concur.
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Connell v. Cap. City P'rs, LLC, 932 So. 2d 442 (Fla. 3d DCA 2006)…ion of any sworn proof.3 This was error because the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process. Khan v. Dep’t of Revenue, 901 So. 2d 992, 992 (Fla. 4th DCA 2005); Grandini v. Carizo, 891 So. 2d 1216 (Fla. 3d DCA 2005); Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992); Devaney v. Solitron Devices, Inc., 564 So. 2d 1229 (Fla. 4th DCA 1990); Epic Metals Corp. v. Samari Lake E. Condo.…
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T.S. v. Guardian AD Litem & Dep't of Child. & Families, 49 So. 3d 341 (Fla. 4th DCA 2010)…at the status hearing. The mother was not [*342] prepared, nor was she required to be prepared, to defend the significant motion to terminate protective supervision, which although filed, had not been noticed for hearing. See Khan v. Dep’t of Rev., 901 So. 2d 992, 993 (Fla. 4th DCA 2005) (“It is an essential part of the concept of due process that any relief granted at a hearing be within the kind of relief sought by the notice given for hearing.”). Reversed and remanded for further proceedings. STEVE…
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McGRATH v. Caron, 8 So. 3d 1253 (Fla. 4th DCA 2009)…ntempt proceeding does not provide sufficient notice that a court may modify a previously imposed child support obligation.” Dep’t of Revenue v. Leonardi, 696 So. 2d 472, 472 (Fla. 2d DCA 1997) (citations omitted); see also Khan v. Dep’t of Revenue, 901 So. 2d 992 (Fla. 4th DCA 2005) (noting that proper notice is “an essential part of the concept of due process”); Dep’t of Revenue v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996) (notice of contempt motion seeking child support arrearage did not constitute not…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardy v. State, 492 So. 2d 837 (Fla. 5th DCA 1986)
- Hammond v. Hammond, 492 So. 2d 837 (Fla. 5th DCA 1986)
- State v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996)
- State v. Leonardi, 696 So. 2d 472 (Fla. 2d DCA 1997)
- Edwards v. Edwards, 634 So. 2d 284 (Fla. 4th DCA 1994)