Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What type of notice should be given to a party regarding a trial date in a Florida family law case? This question may be especially important if the party’s lawyer has withdrawn before a trial date. This was an issue in the case Chamberlain v. Degner, 1D22-3537 (Fla. 1st DCA August 2, 2023).
In this post-divorce case, the former wife moved for modification of the parties’ parenting plan, alleging a substantial change in circumstances. She alleged time-sharing should be modified due to the former husband’s substance abuse issues, and that child support should be modified retroactively to the date the former husband stopped exercising his time-sharing. The former husband’s lawyer moved to withdraw after the former husband failed to provide discovery. At a status conference, the motion to withdraw was granted, and the court orally announced a trial date. The former husband was present at that hearing. The order of withdrawal designated a mailing and email address for the former husband, and he was subsequently notified of hearings via email only, which he attended. One of these hearings was a pre-trial conference at which the former husband confirmed his availability for the previously set trial date.
The trial date arrived, and the former husband did not appear. In his absence, a final judgment was entered granting the former wife’s petition for modification. The former husband later filed a motion for relief from judgment, alleging that because he was served by email with the notice for trial, and he did not designate an email address in accordance with the Florida Rules of General Practice and Judicial Administration, the judgment was void. The trial court held a hearing on the motion and in part found that his failure to attend the trial was excusable due to his substance abuse and mental health issues. The former wife appealed.
The appellate court disagreed with the trial court’s ruling and reversed. The court held “Here, there is no evidence that the Former Husband designated his email address for service at the February 15 hearing. There is no transcript of that hearing where the Former Wife alleges that the Former Husband ‘consented’ or ‘acquiesced’ to service by email because he agreed to receive other communications that way. Even so, the Former Husband did have actual notice of the May 5 trial date on the Former Wife’s supplemental petition. It is undisputed that he was present when the court first set the trial date at the February 15 hearing; he was reminded of the trial date at the April 5 hearing; and he confirmed his availability on both occasions. Yet he chose not to appear.”
The court further held “More broadly, the trial court abused its discretion by overriding the Former Husband’s actual notice of the trial date to find a due process violation, excusing his failure to appear because he admitted having substance abuse and mental health issues that affected his ability to carry out daily tasks. [internal citation omitted]. Nothing in the record shows that he asked for a continuance or otherwise argued that he could not attend the trial because of those conditions. [citations omitted].”
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