Opinion
No. 3D18-140
06-12-2019
Marcus T. Thomas, Sr., Appellant, v. Khadejah Cromer, Appellee.
Goren, Cherof, Doody & Ezrol, P.A., and Michael D. Cirullo, Jr., (Fort Lauderdale), for appellant. Valiente Law, P.A., and Antonio F. Valiente, for appellee.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 16-9933 An appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. Goren, Cherof, Doody & Ezrol, P.A., and Michael D. Cirullo, Jr., (Fort Lauderdale), for appellant. Valiente Law, P.A., and Antonio F. Valiente, for appellee. Before EMAS, C.J., and LINDSEY, and MILLER, JJ. MILLER, J.
The father, Marcus T. Thomas, Sr., challenges the entry of an amended final judgment of paternity, appreciably restricting his access to his child, rendered following a motion for rehearing. The father contends that the grant of rehearing, resulting in an amended final judgment and parenting plan, without affording him an opportunity to be heard, constitutes a deprivation of procedural due process. For the reasons that follow, we agree and reverse.
Because of our reversal on this basis, we do not reach the remaining assignments of error.
The mother, Khadejah Cromer, filed a petition to establish paternity against the father, in the lower court. While the father admitted paternity, the parties disagreed upon a parenting plan, including a custody schedule and an appropriate child support award. The lower court conducted a trial on the disputed issues. After the proceedings concluded, the court entered a parenting plan and comprehensive final judgment of paternity, delineating the requisite factors set forth in section 61.13(3), Florida Statutes (2018).
The court imposed a filing deadline for the submission of proposed final judgments. Only the father complied with the court's instructions. One day after the submission deadline lapsed, the court entered the final judgment of paternity, materially modifying the father's proposed judgment and appending a parenting plan.
Thereafter, the mother sought rehearing, articulating no change in circumstances. She cited no precedent or disregarded evidence, and limited her specific objection to the child support guidelines as calculated by the court in the final judgment. The mother also submitted a proposed final judgment and parenting plan. The father objected to the mother's motion. No hearing was had on the motion for rehearing. The lower court subsequently entered an amended final judgment, referencing an amended parenting plan. Nearly a month later, the trial court filed an amended parenting plan, which mirrored the mother's proposed parenting plan. The amended parenting plan closely circumscribed the father's visitation. This appeal ensued.
The trial court never entered an order ruling on the mother's motion for rehearing, and the amended final judgment provides no guidance as to the basis for amending the final judgment. However, the amended judgment "represented a substantive change, not the sort of accidental slip or omission permitted to be corrected under [Florida Rule of Civil Procedure] 1.540(a)." Lorant v. Whitney Nat'l Bank, 162 So. 3d 244, 245 (Fla. 1st DCA 2015); see also Brown v. Cannady-Brown, 36 So. 3d 166, 168 (Fla. 4th DCA 2010) ("In a family law case, the length of time that an obligation is to be paid is an error that affects the substance of a judgment; not a 'clerical' mistake that can be corrected under rule 1.540(a).") (citations omitted). We therefore conclude the trial court acted pursuant to the mother's motion for rehearing, and review this cause accordingly. See City of Plant City v. Mann, 400 So. 2d 952, 954 (Fla. 1981) ("[I]f the relief sought by the pending motion is consistent with the Court's final judgment, the motion may be deemed to have been impliedly granted."). In any event, had the court simply been acting sua sponte, a reversal would still be required. See Butler v. Cabassa, 186 So. 3d 1114 (Fla. 4th DCA 2016) (discussing that a party is denied procedural due process when a court sua sponte enters a substantively altered amended judgment without notice and an opportunity to be heard); see also Clearwater Bonding Agency v. Pinellas Cty., 805 So. 2d 901, 902-03 (Fla. 2d DCA 2001) (holding the trial court lacked jurisdiction to sua sponte amend a final order where judicial error was not corrected within the time provided by Florida Rule of Civil Procedure 1.530(d)).
Pursuant to the first parenting plan, the child would spend each Sunday night to Tuesday morning and every other weekend with the father. As a result, overnights were divided equally between the parents. The plan further included alternating custody on fifteen delineated holidays, including the child's birthday. It allowed the mother custody on her birthday, the father custody on his birthday, and alternating custody on the child's birthday. The amended parenting plan eliminated any weekend visitation for the father. It further designated only five holidays for alternating custody, including the child's birthday, and eliminated any reference to either parent's birthday.
STANDARD OF REVIEW
We review a claim of deprivation of due process de novo. A.B. v. Fla. Dep't of Children & Family Servs., 901 So. 2d 324, 326 (Fla. 3d DCA 2005).
LEGAL ANALYSIS
"No State shall . . . deprive any person of life, liberty, or property, without due process of law . . ." Amend. XIV, § 1, U.S. Const.; see Art. I, § 9, Fla. Const. "The constitutional guarantee of due process requires that judicial decisions be reached by a means that 'preserves both the appearance and reality of fairness.'" Verizon Bus. Network Servs., Inc. v. Dep't of Corr., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008) (citations omitted). "Due process principles apply to modification proceedings including child custody and visitation matters." Murphy v. Ridgard, 757 So. 2d 607, 608 (Fla. 5th DCA 2000) (citations omitted). "A trial court 'provides due process if the complaining party was given notice and an opportunity to be heard.'" Nationstar Mortg., LLC v. Weiler, 227 So. 3d 181, 183 (Fla. 2d DCA 2017) (quoting Casa Inv. Co. v. Nestor, 8 So. 3d 1219, 1220 (Fla. 3d DCA 2009)); see also Crescenzo v. Marshall, 199 So. 3d 353, 355 (Fla. 2d DCA 2016).
"A court cannot modify any judgment unless the issue of modification is properly presented to it by appropriate proceedings and each party is given an opportunity to be heard on the issue." Brady v. Jones, 491 So. 2d 1272, 1273 (Fla. 2d DCA 1986) (citing Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)). "Florida courts have repeatedly held that it is a violation of a parent's due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below." Illanes v. Gutierrez, 972 So. 2d 222, 223 (Fla. 3d DCA 2007) (citations omitted).
Florida Rule of Civil Procedure 1.530(a) provides, "[o]n a motion for a rehearing of matters heard without a jury, . . . the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment." "While Florida Rule of Civil Procedure 1.530(a) does not specifically require a hearing on a motion for rehearing, . . . due process requires a hearing on such a motion before a trial court can grant the motion and amend a final judgment." J.R. Fenton, Inc. v. Gallery 600, Inc., 488 So. 2d 587, 588 (Fla. 2d DCA 1986) (citations omitted); see Aubourg v. Erazo, 922 So. 2d 1106, 1107 (Fla. 4th DCA 2006) (discussing relevant precedents and noting the holding that "although rule 1.530 contains no requirement for a live hearing, due process requires such a proceeding before a trial court can grant a motion for rehearing") (emphasis in original) (citing J.R. Fenton, 488 So. 2d at 588); see also Wolfson v. Wolfson, 173 So. 3d 1136, 1138 (Fla. 3d DCA 2015) ("Generally, both parties must be given notice and opportunity to be heard on the matter prior to any [parenting plan] modification, unless there is an actual, demonstrated emergency situation."); George v. Lull, 181 So. 3d 538, 540 (Fla. 4th DCA 2015) ("It is well settled that in order to modify a timesharing plan there must be a substantial change in circumstances.") (citing Wade v. Hirschman, 903 So. 2d 928, 932 (Fla. 2005)); Griffith v. Griffith, 133 So. 3d 1184, 1186 (Fla. 2d DCA 2014) ("[A] time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.") (alteration in original) (quoting § 61.13(3), Fla. Stat. (2012)).
Here, the trial court entered an amended final judgment, without affording the parties an opportunity to be heard on the merits of the motion for rehearing. Thus, we conclude the father was deprived of his procedural due process rights. Accordingly, we reverse and remand with instructions to vacate the amended final judgment and for further proceedings consistent with this opinion.
Reversed and remanded.
EMAS, C.J., concurs.
LINDSEY, J., concurs in result only.