XERNONA PINNOCK, APPELLANT,

v.

WARREN WHYTE, APPELLEE

Fla. 3d DCA | 2016-12-28

No. 3D15-1042

Before ROTHENBERG, LAGOA, and EMAS, JJ.

209 So. 3d 71 Florida District Court of Appeal, Third District (2016) Positive Treatment

Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court held that a trial court violates due process by expanding the scope of a scheduled hearing without proper notice to the parties.

Headnotes

[1] A trial court violates due process rights by expanding the scope of a scheduled hearing without providing proper notice to the parties.

[2] A hearing scheduled as a status conference, when an answer has been filed, cannot be converted into a final hearing without prior notice.

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Facts & Procedural History

The trial court scheduled a hearing as a status conference if an answer was filed, but proceeded to a final hearing and entered a final judgment of pa…

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Topics

Time-Sharing Schedule Paternity Establishment Opportunity To Be Heard Paternity

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Opinion of the Court

LAGOA, J.

Xernona Pinnock (“Pinnock”) appeals from a final judgment of paternity, paternal responsibility, parenting plan, time-sharing schedule and child support (“Final Judgment”).1

Because Pinnock’s due process rights were violated by the trial court expanding the scope of the scheduled hearing without notice, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Warren Whyte (“Whyte”), filed a Petition for the Determination of Paternity. Pinnock filed an answer to the petition. The trial court referred the parties to mediation, and the parties reached a partial mediated settlement agreement. The following remaining contested issues were not part of the mediated settlement agreement: Winter Break, Spring Break, and Summer time timesharing; child support; and allocation of the child tax ex-émption.

On February 3, 2015, the trial court entered an Order Scheduling Uncontested Final Hearing or in the Alternative Setting Status Conference. The order specifically stated that “[i]f an answer has been filed, this hearing will serve as a STATUS CONFERENCE.” (emphasis in original).

Both Whyte and Pinnock attended the scheduled hearing. A review of the hearing transcript shows that the trial court — notwithstanding Pinnock’s filed answer to the petition — proceeded to conduct a final hearing and entered the Final Judgment. Following the entry of the Final Judgment, Pinnock filed a motion for rehearing, which the trial court denied in a written order. In its order, the trial court found that: (1) the motion was untimely2; (2) a mediated agreement had been reached by the parties; and (3) “[t]he few areas of disagreement were resolved at the UCD/Status Conference.” This appeal ensued.

II. ANALYSIS

The facts of this case are identical to those in Shah v. Shah, 178 So.3d 70 (Fla. 3d DCA 2015), where this Court reversed the trial court’s entry of a final judgment of dissolution of marriage. In Shah, as in the case before us, the trial court issued a scheduling order that specifically stated that “[i]f an answer has been filed, this hearing will serve as a STATUS CONFERENCE.” 178 So.3d at 71. Notwithstanding the wife’s pro se reply to the petition for dissolution of marriage, which the trial court correctly treated as an answer, the trial court conducted a final hearing and orally granted the petition *73over the wife’s objections. The wife moved for rehearing, which the trial court denied.

In reversing the trial court, this Court held that:

Due process requires proper notice and an opportunity to be heard. The trial court’s July 30, 2014 notice of hearing notified the parties that if an answer to the petition had been filed, the hearing would serve as a status conference rather than a final hearing. The trial court, however, changed the nature and expanded the scope of the scheduled hearing without proper notice. In doing so, the court violated the wife’s due process rights.

Id.

Here, as in Shah, the trial court’s order notified the parties that if an answer to the petition had been filed, the hearing would serve as a status conference rather than a final hearing. Notwithstanding Pin-nock’s answer, the trial court proceeded to final hearing and entry of final judgment. Because Pinnock’s due process rights were violated by the trial court’s expansion of the scope of the scheduled hearing without notice, we reverse the Final Judgment of Paternity and remand for further proceedings consistent with this opinion.3

Reversed and remanded.

. Although we need not address the merits of the remaining issues raised by Pinnock as we are vacating the Final Judgment, to assist the trial court on remand we note that the trial court does not have the power to allocate the Federal Tax Dependency Exemption directly. See Pullis v. Pullis, 118 So.3d 937 (Fla. 3d DCA 2013). "The trial court can only ‘require the custodial parent to transfer the exemption to the non-parent through the execution of a waiver. However, the transfer of the dependency exemption to the non-custodial parent is conditioned on that parent being current with support payments.’ ” Id. at 941 (quoting Robertson v. Bretthauer, 712 So.2d 1140, 1141 (Fla. 3d DCA 1998)).

Additionally, we note that a court's imputation of income must be supported by competent, substantial evidence. See Harbus v. Harbus, 874 So.2d 1230 (Fla. 4th DCA 2004). The trial court "is required to set forth the amount and source of the imputed income. If the court fails to do so, the case must be reversed and remanded for specific findings of fact.” Id. at 1231.

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Citator

Cited By

Nitza Soledad Perez v. Maldonato, 324 So. 3d 1011 (Fla. 3d DCA 2021)

…d impermissibly determined that Maldonato and Perez were a commissioning couple under section 742.14, Florida Statutes (2020), a conclusion that would have required taking evidence in a properly noticed evidentiary hearing. In Pinnock v. Whyte, 209 So. 3d 71, 72-73 (Fla. 3d DCA 2016), this Court reversed a final judgment of paternity made where the trial court expanded the scope of a scheduled status conference without notice and turned it into a final hearing. In the present case, the trial court si…
Idelfonso Cardelle v. HSBC Bank USA, NA, 225 So. 3d 366 (Fla. 3d DCA 2017)

…laint. The sua sponte dismissal of the complaint, in the absence of proper notice, violated Cardelle’s due process rights by expanding the scope of the hearing and making a determination on matters not noticed for that hearing. See Pinnock v. Whyte, 209 So. 3d 71 (Fla. 3d DCA 2016); Shah v. Shah, 178 So. 3d 70 (Fla. 3d DCA 2015); Epic Metals Corp. v. Samari Lake East Condo. Ass’n, Inc., 547 So. 2d 198 (Fla. 3d DCA 1989). We therefore affirm the trial court’s order insofar as it vacated the default against…
Erren v. Marin (Fla. 4th DCA 2023)

…expectations” were not met. Expanding a non-evidentiary hearing into an evidentiary one without prior notice to the parties is generally inappropriate. See, e.g., Perez v. Maldonato, 324 So. 3d 1011, 1013 (Fla. 3d DCA 2021); Pinnock v. Whyte, 209 So. 3d 71, 73 (Fla. 3d DCA 2016). As such, the trial court violated Former Wife’s right to “a full and fair opportunity to be heard in judicial 4 proceedings.” Julia v. Julia, 146 So. 3d 516, 521 (Fla. 4th DCA 2014) (quoting Cole v. Cole, 159 So. 3d…

Authorities Cited

Robertson v. Bretthauer, 712 So. 2d 1140 (Fla. 3d DCA 1998)
Amruta Nilay Shah v. Nilay R. Shah, 178 So. 3d 70 (Fla. 3d DCA 2015)
Harbus v. Harbus, 874 So. 2d 1230 (Fla. 4th DCA 2004)
Pullis v. Pullis, 118 So. 3d 937 (Fla. 3d DCA 2013)

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