FRANKLIN BUTLER, APPELLANT,
v.
JESSICA CABASSA, APPELLEE
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The court held that the trial court erred in denying the motion to vacate the amended judgment because it was entered without notice or an opportunity to be heard.
The original judgment made no provision for child time-sharing. Without notice to the appellant, the trial court sua sponte entered an amended judgmen…
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We reverse the trial court’s order denying appellant’s motion to vacate the amended final judgment of injunction for protection against domestic violence. The original judgment entered in this case made no provision for a change; in time-sharing with the minor child.- However, without notice to appellant or' any pleadings to amend the judgment for such relief, the trial court sua sponte entered an amended judgment that awarded one-hundred percent timesharing to appellee. Before the amended judgment was entered, appellant was the primary residential parent for the child.
Appellant’s motion to "vacate stated a preliminary basis for relief by'alleging that the amended judgment should be vacated as void because it was entered without notice or an opportunity to be heard. See Rodriguez v. Santana, 76 So.3d 1035, 1037 (Fla. 4th DCA 2011) (holding in a paternity case that-the trial court erred in summarily denying the mother’s motion for relief from judgment where the trial court violated her due process right to notice and an opportunity to be heard before rendering judgment).
At the hearing on appellant’s motion to vacate the amended final judgment, the trial court stated that the amended judgment merely corrected a “clerical error.” However, the transcript of the hearing leading up to the original judgment shows that the issue of custody was not argued or ruled upon at the hearing. Because the trial court erred in summarily denying appellant’s motion to vacate the amended final judgment, we reverse the order and remand for further proceedings.
Reversed and Remanded.
WÁRNE and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thomas v. Khadejah Cromer (Fla. 3d DCA 2019)…by the pending motion is consistent with the Court’s final judgment, the motion may be deemed to have been impliedly granted.”). In any event, had the court simply been acting sua sponte, a reversal would still be required. See Butler v. Cabassa, 186 So. 3d 1114 (Fla. 4th DCA 2016) (discussing that a party is denied procedural due process when a court sua sponte enters a substantively altered amended judgment without notice and an opportunity to be heard); see also Clearwater Bonding Agency v. Pinellas Cty.…
Authorities Cited
- Candy Lynn Rodriguez v. Santana, 76 So. 3d 1035 (Fla. 4th DCA 2011)