Date: 04-06-2018

Case Style:

Case Number: 2017-1075

Judge: Badalamenti

Court: Florida Court of Appeals, Second District on appeal from the Circuit Court for Lee County

Plaintiff's Attorney: Michael E. Chionopoulos for appellant.

Defendant's Attorney: Toni A. Butler for Appellee.

Description: The former husband, James Ferris (the "father"), appeals the trial court's
nonfinal order granting the former wife's, Dianna Winn (the "mother"), verified
emergency motion ("verified motion") to suspend a mediated postdissolution
timesharing agreement and prohibiting the father from contacting their three minor
children. On appeal, the father argues that he was deprived of his procedural due
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process rights because nineteen hours' notice of the hearing on the mother's verified
motion was insufficient. We agree and reverse.
Procedural due process "is comprised of 'both fair notice and a real
opportunity to be heard.' " In re C.K., 88 So. 3d 975, 977 (Fla. 2d DCA 2012) (quoting
Borden v. Guardianship of Borden-Moore, 818 So. 2d 604, 607 (Fla. 5th DCA 2002)).
"The notice must be of such nature as reasonably to convey the required information,
and it must afford a reasonable time for those interested to make their appearance . . .
[while] the opportunity to be heard must be at a meaningful time and in a meaningful
manner." Id. (alteration in original) (quoting Borden, 818 So. 2d at 607).
Section 61.518(1), Florida Statutes (2017), mandates that "[b]efore a child
custody determination is made under this part, notice and an opportunity to be heard
. . . must be given to . . . any parent whose parental rights have not been previously
terminated." The legislature defines "[c]hild custody determination" as a "judgment,
decree, or other order of a court providing for the legal custody, physical custody,
residential care, or visitation with respect to a child. The term includes a permanent,
temporary, initial, and modification order." § 61.503(3). Further, Florida Rule of Civil
Procedure 1.090(d) requires a party to serve a copy of any written motion and a copy of
the notice of the hearing "a reasonable time before the time specified for the hearing."
"While there are no hard and fast rules about how many days constitute a 'reasonable
time,' the party served with notice must have actual notice and time to prepare."
Harreld v. Harreld, 682 So. 2d 635, 636 (Fla. 2d DCA 1996). That said, a parent's "right
to due process may give way when an emergency situation exists, 'such as where a
child is threatened with physical harm or is about to be improperly removed from the
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state.' " Bahl v. Bahl, 220 So. 3d 1214, 1216 (Fla. 2d DCA 2016) (quoting Smith v.
Crider, 932 So. 2d 393, 398 (Fla. 2d DCA 2006)).
As an initial matter, the parties do not dispute, and we agree, that no
emergency situation existed based on the mother's verified motion so as to allow the
father's procedural due process rights to "give way." See id. In Bahl, the mother filed
an emergency petition for change in her timesharing agreement with the father. Id. at
1215. There were no allegations that the father threatened the child with physical harm.
Id. at 1216. Instead, the mother alleged " 'ongoing parental alienation perpetrated' by
the father towards the mother." Id. Our court explained that while "the allegations by
the mother . . . were serious and warranted consideration by the trial court, they did not
rise to the level of harm that would excuse the trial court from providing the father with
an opportunity to be heard." Id.
Here, the mother's verified motion alleged that the father engaged in
extreme parental alienation while the children were assimilating to living with her in
Indiana. Specifically, the mother asserted that the father emailed their minor children
urging the children to not obey the mother. She further contended that the father
"wrongfully and consistently tried to alienate the minor children's feelings towards [her]"
by posting "hateful, inflammatory, outrageous and false allegations" on social media
about the mother. Like Bahl, the mother here made allegations that the father acted to
alienate the children from her through communications with the children. See id. Also
like Bahl, the mother did not allege that the children were in threat of physical harm by
the father. See id. Although the father's alleged conduct here is serious and warrants
consideration by the trial court, the alleged conduct set forth in the verified motion did
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not establish an emergency situation so as to quell the father's procedural due process
rights. See id.; Loudermilk v. Loudermilk, 693 So. 2d 666, 668 (Fla. 2d DCA 1997)
(noting that a court may enter an order granting a motion for temporary custody without
affording notice to the opposing party where an emergency exists, such as "where a
child is threatened with harm, or where the opposing party plans to improperly remove
the child from the state").
Having identified that there was no emergency situation set forth in the
verified motion, we next address whether the notice provided to the father was
adequate to protect the father's procedural due process rights. The mother filed her
verified motion on February 8, 2017, at 10:14 a.m. At 3:17 p.m. on that same day, the
father and an attorney who had represented the father for a portion of the
postdissolution proceedings were served via email by the mother's attorney with notice
that a hearing on the mother's emergency motion would take place on February 9,
2017, at 10:30 a.m. Approximately one hour later, the father's former attorney filed a
"Notice of Non-Representation," advising the trial court that he no longer represented
the father and therefore would not be attending the hearing.
Neither the father nor any attorney representing the father attended the
February 9 hearing, which took place approximately nineteen hours after the mother's
attorney sent email notice of that hearing. The trial court subsequently entered an order
suspending the father's timesharing arrangement with the children, suspending all
contact from the father with the children, and ordering that the father undergo a
psychiatric examination, among other requirements.
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After careful review, we hold that the father's procedural due process
rights were violated because he was provided inadequate notice of the hearing on the
mother's verified motion. Although determining whether notice provided is reasonable
depends upon the circumstances of each case, we have not identified a single case
where less than twenty-four hours' notice of a hearing impacting an individual's parental
rights was upheld as reasonable. See Hayman v. Hayman, 522 So. 2d 531, 532 (Fla.
2d DCA 1988) (concluding that the court deprived former wife of her procedural due
process rights by entering order granting custody of children to former husband where
former wife received written notice of the hearing on former husband's contempt motion
the morning of the hearing); Brouard v. McLean, 753 So. 2d 601, 602 (Fla. 4th DCA
2000) (reversing entry of order suspending father's visitation with his daughter on the
basis of inadequate notice when former husband was provided with less than
twenty-four hours' notice of the hearing). Although the father was represented by
counsel throughout some portions of the dissolution and postdissolution proceedings,
the father was unrepresented by counsel at the time of the filing of the mother's verified
motion. Less than one day's notice to retain counsel and prepare for an evidentiary
hearing on the mother's verified motion is not reasonable. Indeed, the mother's counsel
laudably concedes this on appeal. Accordingly, we reverse the February 9, 2017, order
of the trial court.
In closing, we commend the trial court on acting promptly in this difficult
familial dispute impacting minor children, which has stretched for several years and has
involved numerous contentious filings. We are compelled, however, to reverse and
remand the case so that the issues raised in the mother's verified motion can be
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resolved by the trial court after each party receives proper notice and an opportunity to
be heard. See Brouard, 753 So. 2d at 602. We express no opinion as to the merits of
the mother's verified motion.
Reversed and remanded for further proceedings consistent with this

Outcome: Reversed and remanded for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: