MARIE A. CONNORS, APPELLANT,
v.
JOSEPH L. CONNORS, APPELLEE
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In this custody modification case, the Florida District Court of Appeal reversed a trial court's award of permanent custody to the father because the mother was denied adequate notice and opportunity to be heard. The court held that due process requires notice and a meaningful hearing opportunity before modifying custody provisions of a divorce decree.
Yes. The trial court erred in exceeding the scope of the parties' stipulation and deciding permanent custody without providing the mother with adequate notice and opportunity to be heard on that issue. The order is reversed and remanded for further proceedings.
[1] A trial court errs by determining permanent child custody without providing adequate notice to a party.
[2] Parties to a legal proceeding are entitled to basic elements of due process, including notice and an opportunity to be heard.
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Join FLexlaw to unlock all legal intelligence“Basic elements of due process in any judicial proceeding are notice and opportunity to be heard.”
Establishes the fundamental due process requirement that applies to custody proceedings
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Join FLexlaw to unlock all legal intelligenceThe Connors' marriage was dissolved in February 1969 with custody of their son Kevin (then age 12) awarded to the mother. In October 1974, a temporary…
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SCHEB, Judge.
The trial court awarded permanent custody of the parties’ child to the appellee father. Appellant, Marie A. Connors, contends the trial court erred in determining the issue of permanent custody of her son without giving her adequate notice. We agree and reverse.
The Connors’ marriage was dissolved by final judgment on February 24, 1969, with custody of their son, Kevin, now age 12, being given to the mother. A temporary order issued October 30, 1974, granting temporary custody of Kevin to the appellee father. Both parties subsequently filed petitions for permanent custody of their child. Counsel for appellant mother served appellee’s counsel with a notice of hearing for May 22, 1975, on the mother’s petition for modification. Prior to that time, however, counsel for the parties stipulated between themselves “that the court at this hearing would only hear the defendant’s [husband’s] request to remove the child [temporarily] from the state.” At the hearing, over appellant’s objection, the court announced its intention to settle the issue of permanent custody, although in his later written order, from which this appeal is taken, the trial judge recognized the parties had stipulated that the hearing would be devoted to the limited purpose recited above.1
Though justifiably interested m expediting this delicate, yet protracted matter, the trial judge erred in going beyond the scope of the stipulation entered into between the parties, who were not on notice to prepare for a hearing on issues pertinent to permanent custody. Basic elements of due process in any judicial proceeding are notice and opportunity to be heard. Cavalier v. Ignas, Fla. 1974, 290 So. 2d 20. These requirements are especially applicable to a proceeding to modify the custody provisions of a divorce decree since there must, in such instances, be a showing of substantial change in circumstances for entry of the decree. Hutchins v. Hutchins, Fla.App.2d 1969, 220 So. 2d 438. See, Grant v. Corbitt, Fla.1957, 95 So. 2d 25; Schraner v. Schraner, Fla.App. 1st 1959, 110 So. 2d 33. Here, the appellant was denied the opportunity to prepare and present evidence relevant to the issue of permanent custody and thereby was not afforded the opportunity for a meaningful hearing on the custody issue.
Accordingly, the order is reversed and the cause is remanded for further proceedings consistent with this opinion.
McNULTY, C. J„ and HOBSON, J., concur. . At oral argument before this court, appel-lee m pro per acknowledged that he too was surprised that the judge determined the matter of permanent custody at the hearing, since he only anticipated a ruling on the question of removal of the child temporarily and resolve of a request by both counsel for a report from the Division of Family Services.
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Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA 1982)…e and present evidence relevant to that issue. Case law supports him. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Wallace v. Wallace, 413 So. 2d 1261 (Fla. 2d DCA 1982); Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981); Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974). [*293] We note the appellee does not argue that enlargement of the three-week summer visitation period was litigated with the implied consent of the appellant. Neither does she ar…
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Shaw v. Shaw, 455 So. 2d 1156 (Fla. 5th DCA 1984)…cess rights to notice and opportunity to be heard and it is hereby reversed and set aside and the order of February 10, 1984, is reinstated. Due process applies to hearings to modify custody awards such as those in this case, see Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976), although the two orders in this case related to temporary custody. The trial judge indicated that by temporary custody he was referring to “a year or two.” Because the order of February 10, 1984, relates to temporary custody the…
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Begens v. Begens, 617 So. 2d 360 (Fla. 4th DCA 1993)…es not comport with due process.1 Reasonable notice and an opportunity to be heard is required before the entry of a modification decree since there must be a showing of substantial change in circumstances for entry of the order. Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976). An opportunity to be heard includes the right to present evidence bearing on the issues. See Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984). Here the wife was not given any opportunity to present evidence on the matter of custo…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beulah Grant v. Corbitt, 95 So. 2d 25 (Fla. 1957)
- Hutchins v. Hutchins, 220 So. 2d 438 (Fla. 2d DCA 1969)
- Cavalier v. Ignas, 290 So. 2d 20 (Fla. 1974)
- Schraner v. Betty Schraner (Emerson), 110 So. 2d 33 (Fla. 1st DCA 1959)