MARIAH CHEEK, FORMER WIFE, APPELLANT,
v.
BRIAN R. HESIK, FORMER HUSBAND, APPELLEE
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The court reversed portions of a modification order suspending the former husband's travel cost obligation and restricting timesharing because the trial court adjudicated issues not presented by the pleadings, violating due process.
A trial court lacks jurisdiction to modify a judgment on issues not raised in the pleadings or set for hearing, as doing so violates due process.
[1] A trial court lacks jurisdiction to modify a judgment by adjudicating issues not presented in the pleadings or set for hearing, as such action violates due process.
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Join FLexlaw to unlock all legal intelligence“An order adjudicating an issue not presented by the parties or the pleadings denies due process, and therefore, departs from the essential requirements of law.”
Court citing Hunter v. Booker to establish the jurisdictional defect principle
Mariah Cheek, the former wife, appealed a final judgment on her amended supplemental petition to modify a prior judgment regarding timesharing and tra…
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Mariah Cheek, the former wife, appeals the Final Judgment on Former Wife’s Amended Supplemental Petition to Modify Judgment and Order on Pending Matters, filed June 4, 2014. We reverse the order on appeal to the extent that it temporarily suspends the former husband’s one-half obligation toward travel costs and orders that all timesharing less than four days in duration occur in the vicinity of the former husband’s residence, and we remand with instructions to vacate those portions of the order. See Hunter v. Booker, 138 So.3d 623, 628 (Fla. 1st DCA 2014) (“An order adjudicating an issue not presented by the parties or the pleadings denies due process, and therefore, departs from the essential requirements of law.”); Chaphe v. Chaphe, 19 So.3d 1019, 1024 (Fla. 1st DCA 2009) (“[A] modification of a judgment constitutes a jurisdictional defect where there has been no pleading requesting modification.”); Swanson v. Swanson, 888 So.2d 117, 118-19 (Fla. 4th DCA 2004) (“[T]he court reached an issue that was neither raised by the pleadings nor set for hearing. In doing so, the former wife’s due process rights were violated.”). In all other respects, the final judgment is affirmed.
Affirmed in part, reversed in part, and remanded with instructions.
BENTON, WETHERELL, and SWANSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Swanson v. Swanson, 888 So. 2d 117 (Fla. 4th DCA 2004)
- Chaphe v. Chaphe, 19 So. 3d 1019 (Fla. 1st DCA 2009)
- Jamila Takiyak Hunter v. Booker, 133 So. 3d 623 (Fla. 1st DCA 2014)