WILLIE BELL, JR., APPELLANT,
v.
DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, APPELLEE
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Willie Bell Jr. appealed the denial of his child support modification petition and the finding of arrearages. The court reversed, holding that the trial court violated Bell's due process rights by ruling on his modification petition at a hearing that was only noticed for a show cause order regarding delinquent payments, without proper notice to Bell or his attorney of the modification issue.
Yes. The trial court erred on due process grounds in ruling on Bell's modification petition at the May 30 hearing, which had only been noticed for the order to show cause. A party must be given notice of and an opportunity to be heard on the specific issue of modification through appropriate proceedings and pleadings.
[1] A trial court cannot modify a child support decree unless the issue of modification is presented in appropriate proceedings and each party is given an opportunity to be h…
[2] A trial court errs by expanding the scope of a hearing beyond what was properly noticed and pleaded, violating a party's due process rights.
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Join FLexlaw to unlock all legal intelligence“the trial court could not modify the support decree unless the issue of modification was presented to it in appropriate proceedings and each party was given an opportunity to be heard on the issue”
Establishes the fundamental due process requirement that modification of child support requires proper notice and proceedings
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Join FLexlaw to unlock all legal intelligenceBell was subject to a child support judgment and filed a petition on October 25, 1984, to modify it based on injuries from an automobile accident. A s…
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COBB, Chief Judge.
Appellant, Willie Bell, Jr., timely appeals the order by the lower court denying his petition for modification of child support and finding certain arrearages in child support that were owed. Bell, who was subject to a child support judgment, filed a petition on October 25,1984, to modify that judgment, claiming a substantial change of circumstances based on injuries he had received in an automobile accident. The petition gave the name of Bell’s attorney. In March, 1985, a show cause order issued because of delinquent support payments; an order of continuance for hearing of the show cause order was filed by the court on April 17, 1985.
On May 9, 1985, a notice of hearing was sent directly to Bell1 by the attorney for HRS, stating that a hearing was to be held on May 30 on the “order of continuance dated April 17, 1985.” The day before the scheduled hearing, counsel for HRS notified Bell’s counsel by telephone that the arrearage issue would be considered at the hearing. Bell’s counsel objected at the hearing to the defective notice (no copy to him, no written or timely notice of the arrearage subject matter). Nevertheless, the hearing proceeded and an order was entered denying Bell’s petition for modification; staying enforcement of payments; allowing the weekly payments to accrue as arrearages; finding the accrued arrearages as of May 30, 1985; and granting a lien on any funds Bell should receive from settlement or litigation as a result of his accident.
Appellant contends that the trial court erred in ruling on his supplemental petition for modification at the May 30th hearing when that hearing had only been noticed for the order to show cause. In support of his contention, he cites the cases of Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979); and Matthews v. Matthews, 376 So. 2d 484 (Fla. 3d DCA 1979).
In Cortina, a proceeding was brought by a husband against his wife for contempt based on failure to comply with child visitation provisions of a divorce decree. After the hearing, the trial court sua sponte and without notice to the parties, entered an order revoking part of the final decree requiring payment of support, and providing for resumption of support only upon the wife’s and child’s compliance with visitation requirements. The wife appealed, and the Florida Supreme Court held that the lower court could not modify the support decree unless the issue of modification was presented to it in appropriate proceedings and each party was given an opportunity to be heard on the issue.
In Barreiro, the wife filed a motion for enforcement of out-of-state summer visitation with the parties’ son, who was in the father’s custody. Without prior notice, without appropriate pleadings, and over the objection of the husband, the trial judge expanded the scope of the emergency hearing and provided for: temporary child support, transportation costs, grandparents’ visitation, terms of the wife’s subsequent visitation, and imposition of a constructive trust on the proceeds of certain property. The Fourth District held that such an expansion of what had been noticed for hearing was improper, and “clearly in violation of the appellant’s due process rights, to hear and determine matters which were not the subject of appropriate pleadings or notice.” 377 So. 2d at 1000. In Matthews, in a per curiam opinion, the Third District overturned a trial judge’s order which changed custody from the mother to the father and altered support payments without prior pleadings or notice.
In the instant case the only notice of the May 30th hearing given to appellant was that a hearing would be held on the April 17th order of continuance. That April 17th order of continuance referred to the order to show cause, not the modification of child support. Thus, on due process grounds, the trial court’s ruling on appellant’s modification petition must be reversed.
REVERSED and REMANDED for further proceedings consistent with this opinion.
DAUKSCH and ORFINGER, JJ., concur. . See Florida. Rule of Civil Procedure 1.080(b), which requires that service upon a party represented by an attorney shall be made upon the attorney unless service upon the party is ordered by the court.
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Citator
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Hammond v. Hammond, 492 So. 2d 837 (Fla. 5th DCA 1986)…the issue of modification is presented by appropriate pleadings and each party is given notice and the opportunity to be heard on such issue. Cortina v. Cortina, 98 So. 2d 334 (Fla. [*839] 1957); Bell v. Dept. of Health and Rehabilitative Services, 487 So. 2d 1198 (Fla. 5th DCA 1986); Sweetland v. Gauntlett, 460 So. 2d 570 (Fla. 3d DCA 1984). Neither will an oral motion at a hearing called for another purpose satisfy the pleading requirement. Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974). Here, the wi…
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Allman v. Johnson, 488 So. 2d 884 (Fla. 5th DCA 1986)…34, 314 S.E. 2d 786 rev. denied, 312 N.C. 89, 312 S.E. 2d 908 (1984); In Re Solomon, 546 S.W. 2d 129 (Tex.App.1977); State ex rel. McDonnell v. McCutcheon, 337 N.W. 2d 645 (Minn.1983). . Cf. Bell v. Department of Health and Rehabilitative Services, 487 So. 2d 1198 (Fla. 5th DCA 1986). . See State ex rel. Gary v. Davis, 83 Fla. 422, 91 So. 267 (1922) (prohibition is available to restrain a contempt proceeding where petitioner is shown not to have violated any valid order of the trial court at the time it issu…
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Herman v. Herman, 565 So. 2d 835 (Fla. 3d DCA 1990)…In this case, the wife filed no pleading. Her “Notice of Hearing [ — ] Special Setting” filed on February 26,1990, was not sufficient to inform the husband of her intent to seek modification. See Bell v. Department of Health & Rehabilitative Servs., 487 So. 2d 1198 (Fla. 5th DCA 1986) (where only notice of modification hearing was that hearing would be held on order of continuance, trial court abridged father’s due process rights by ruling on issue of modification). We recognize that the wife may have a color…
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- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979)
- Weaver v. Masanotti, 376 So. 2d 484 (Fla. 3d DCA 1979)