MAYA WINDDANCER, A/K/A ELLEN NOBLE, PETITIONER,
v.
MICHAEL A. STEIN, RESPONDENT
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A mother sought certiorari review of a trial court order addressing a single visitation dispute that was expanded to require the mother and child to undergo weekly counseling without notice or hearing on those issues. The appellate court granted the petition, finding the counseling orders violated due process and quashed those portions.
The trial court's imposition of counseling requirements without notice or opportunity to be heard violated due process. The appellate court granted the certiorari petition and quashed those portions of the order, leaving intact only the specific ruling regarding the terms of the November 1999 visitation.
[1] A court order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.
[2] Imposing parenting classes and psychological counseling on parties is reversible error in the absence of a motion or other notice and opportunity to be heard on those iss…
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Join FLexlaw to unlock all legal intelligence“an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process”
Establishes the core due process violation at issue in the case
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Join FLexlaw to unlock all legal intelligenceThe mother filed an Emergency Motion for Protective Order and Temporary Modification of Child Visitation regarding a planned visitation between the fa…
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KAHN, J.
In this certiorari proceeding, petitioner, the mother of a minor child, seeks review of a rather expansive order entered after a hearing on petitioner’s motion regarding only the circumstances of a single planned visitation between the respondent father and the child. Despite the narrow subject matter of the motion, the order requires the mother to undergo weekly counseling, directs the mother’s counselor to confer with father’s attorney, and compels the child to continue counseling with a particular therapist. The order also admonishes the mother “that if she continues to attempt to block visitation between (father and child), then this court will enter a very specific order delineating specific time frames during which she must turn over (the child) to Mr. Stein, and if she refuses to do that, she is likely to lose custody of the minor child ...”
The father and mother agree that counseling for the mother and child was not sought, noticed; or litigated in the hearing on petitioner’s Emergency Motion for Protective Order and Temporary Modification of Child Visitation. We have previously held that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process. See Moody v. Moody, 721 So. 2d 731, 734 (Fla. 1st DCA 1998) (reversing order transferring child custody and canceling husband’s requirement to pay child support where the notice for hearing stated that the court would entertain a motion for contempt); Thomas v. Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) (reversing change of child custody due to deleterious effect of tobacco smoke on child where notice of hearing specified issue raising question of custody change was poor progress »in school).
The Second District has specifically held that it was reversible error for the trial court to impose parenting classes and psychological counseling on the parties “in the absence of a motion or other notice and opportunity to be heard on the issues.” Silvers v. Silvers, 504 So. 2d 30, 31 (Fla. 2d DCA 1987).
Such a violation of due process constitutes a departure from the essential requirements of the law. Because the mother and child face the irreparable harm of compulsory psychological counseling rendered without notice or an opportunity to be heard, later review on appeal would provide an inadequate remedy. See In re T.M.W., 553 So. 2d 260, 262 (Fla. 1st DCA 1989). Accordingly, relief by writ of. certiorari is apposite. See id.
Additionally, the portion of the trial court’s order threatening sanction for future non-compliance with visitation is either non-binding surplusage or an improper advisory opinion on matters which were not before the trial court. Cf. Baby Boy G. v. C.V., 703 So. 2d 1103, 1104 (Fla. 2d DCA 1997). Trial judges are not without power to admonish litigants in appropriate circumstances. Nevertheless, the order here goes too far by purporting to fashion remedies that are purely hypothetical.
Accordingly, we GRANT the petition for writ of certiorari and QUASH those portions of the trial court’s order apart from the specific ruling regarding the terms of November 1999 visitation.
JOANOS and ALLEN, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Delissio v. Delissio, 821 So. 2d 350 (Fla. 1st DCA 2002)…lity. However, this case involves the parties’ private agreement that does not touch upon these exceptions. Furthermore, when a case is decided on an issue unnoticed to the parties, serious due process considerations are raised. Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000); Hancock v. Tipton, 732 So. 2d 369 (Fla. 2nd DCA 1999). Thus, I cannot align with the majority. Even assuming arguendo the majority’s basis for affirmance was argued by the former husband, I would still reverse. The majority cor…
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Kanter v. Kanter, 850 So. 2d 682 (Fla. 4th DCA 2003)…rs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings. See, e.g., Fuchs v. Flicks, 840 So. 2d 449 (Fla. 4th DCA 2003); Stanley-Baker v. Baker, 789 So. 2d 353 (Fla. 4th DCA 2001); Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000): Szymanski v. Szymanski, 603 So. 2d 73 (Fla. 4th DCA 1992). It is the husband’s contention that his due process rights were violated by the trial court’s award of temporary support to the wife when the only matter noticed for hea…
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Adams v. Shiver, 890 So. 2d 1199 (Fla. 1st DCA 2005)…lity. However, this case involves the parties’ private agreement that does not touch upon these exceptions. Furthermore, when a case is decided on an issue unnoticed to the parties, serious due process considerations are raised. Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000); Hancock v. Tipton, 732 So. 2d 369 (Fla. 2nd DCA 1999). Thus, I cannot align with the majority. (emphasis in original). However, even assuming arguendo that my stated position is incorrect, the majority’s version of the rule is…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)
- In the Interest of T.M.W., 553 So. 2d 260 (Fla. 1st DCA 1989)
- Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994)
- McCANTS v. State, 504 So. 2d 30 (Fla. 2d DCA 1987)
- In the Interest of Baby BOY G. v. C.V., 703 So. 2d 1103 (Fla. 2d DCA 1997)