ROSSMERY ILLANES, PETITIONER,
v.
VICTOR GUTIERREZ, RESPONDENT
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A Florida appellate court quashed a trial court order that modified an eight-year-old final judgment of dissolution by changing the father's visitation from supervised to unsupervised biweekly weekend visits, holding that the modification violated the mother's due process rights because the issue was not properly noticed or presented by written pleadings.
A trial court violates a parent's due process rights by modifying visitation in a final judgment unless the issue of modification is properly presented by written pleadings, noticed to the parties, or litigated below. The modification order is quashed because there was no motion pending, no notice that visitation would be discussed, and no record evidence supporting that the mother consented to hearing the modification issue.
[1] A court cannot modify a judgment, including provisions for child visitation, unless the issue of modification is properly presented by written pleadings and noticed to th…
[2] A trial court's modification of child visitation provisions without proper notice or a pending motion violates a parent's due process rights.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida courts have repeatedly held that it is a violation of a parent's due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.”
Establishes the controlling legal standard requiring proper notice and pleadings for any modification of visitation in a final judgment
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Join FLexlaw to unlock all legal intelligenceRossmery Illanes and Victor Gutierrez were parents of a minor child. A final judgment of dissolution entered eight years prior authorized only supervi…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHEPHERD, J.
Rossmery Illanes petitions this Court for the issuance of a writ of certiorari to the Circuit Court of Miami-Dade County, Family Division to review an “Order on Court Ordered Case Management Conference.” The order modifies an eight-year-old Final Judgment of Dissolution, which had authorized only supervised visitation between the minor child and Respondent-father, Victor Gutierrez, to temporary, biweekly, unsupervised weekend visitation. Although the petitioner has exhibited considerable disrespect to the trial court and its processes, there is no allegation or proof supporting a need for emergency action. See Loudermilk v. Loudermük, 693 So. 2d 666, 668 (Fla. 2d DGA 1997) (“[S]uch an order requires an emergency-situation such as where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state.”).
The order presented here arose out of a trial court ordered case management conference that apparently is routinely utilized by the trial court for the commendable purpose of managing its docket. Although the parents have been squabbling for years over multiple issues relating to the child, there was no notice in the case management order that visitation would be discussed or a modification considered at the case management hearing. Nor was there a motion pending or noticed for such purpose.
“Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster v. Foerster, 885 So. 2d 927, 929 (Fla. 2d DCA 2004); Aiello v. Aiello, 869 So. 2d 22, 23 (Fla. 2d DCA 2004); Lentz v. Lentz, 414 So. 2d 292, 293 (Fla. 2d DCA 1982).
There is no evidence in the record that the topic of visitation modification was properly presented for consideration by motion and notice, and the respondent does not contend otherwise. Brady v. Jones, 491 So. 2d 1272, 1273 (Fla. 2d DCA 1986) (“A court cannot modify any judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to be heard on the issue.”).
Nor does the case management order issued by the trial court, which states only that “counsel should have discussed with each other, and counsel and the parties should be prepared to discuss with the undersigned Judge [certain listed matters]” (emphasis added), indicate that the call of the hearing was intended to include any evidentiary matters.
Finally, neither the trial court nor the parties have provided us with any record support from which we can conclude the issue was heard by the petitioner with implied consent.
Petition granted. Order quashed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Candy Lynn Rodriguez v. Santana, 76 So. 3d 1035 (Fla. 4th DCA 2011)…heduled. A trial court violates a party’s due process rights “when it expands the scope of a hearing to address and determine matters not noticed for hearing.” Margulies v. Margulies, 528 So. 2d 957, 959 (Fla. 3d DCA 1988). In Illanes v. Gutierrez, 972 So. 2d 222 (Fla. 3d DCA 2007), the trial court modified visitation after a noticed case management conference. The appellate court granted a petition for writ of certiorari and quashed the order modifying visitation because “there was no notice in the case man…
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Thomas v. Khadejah Cromer (Fla. 3d DCA 2019)…s a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Illanes v. Gutierrez, 972 So. 2d 222, 223 (Fla. 3d DCA 2007) (citations omitted). court ‘provides due process if the complaining party was given notice and an opportunity to be heard.’” Nationstar Mortg., LLC v. Weiler, 227 So. 3d 181, 183 (Fla. 2d DCA 2017) (quoting Casa Inv. Co.…
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Foreman v. James (Fla. 3d DCA 2020)…167 So. 3d 462, 464 (Fla. 3d DCA 2015). Proper notice did not precede the August 13, 2019 hearing that resulted in the trial court order, and therefore, the August 13, 2019 hearing did not comport with due process requirements. Illanes v. Gutierrez, 972 So. 2d 222, 223 (Fla. 3d DCA 2007) (granting certiorari relief on a due process basis when notice of a case management conference did not include notice of the trial court’s consideration of a modification of minor child visitation). The transcript of the hear…
Authorities Cited
- Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA 1997)
- Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)
- Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA 1982)
- Aiello v. Aiello, 869 So. 2d 22 (Fla. 2d DCA 2004)
- Clark v. State, 885 So. 2d 927 (Fla. 5th DCA 2004)