JEFFREY A. MESSING, Appellant,
KAREN M. NIERADKA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Christopher
E. Biasotti of Biasotti Law, St. Petersburg, for Appellant.
A. Neumaier, Tampa, for Appellee.
Messing (the Husband) appeals the final judgment of
dissolution of his marriage to Karen Nieradka (the Wife).
Because the trial court violated the Husband's due
process rights by converting the final hearing to an
evidentiary hearing without notice and then conducting the
final hearing in the Husband's absence, we reverse and
remand for a new hearing.
Husband and Wife were married on May 9, 2014. On December 10,
2014, the Husband filed a petition for annulment of the
marriage, alleging that the parties had separated immediately
after the ceremony, had never lived together as husband and
wife, and had never consummated the marriage in any manner.
The Wife filed a timely answer and counterpetition for
annulment, in which she sought to require the Husband to pay
certain debts she alleged were marital. Several months later,
the Wife filed an amended counterpetition in which she
alleged the following:
I do not contest the petition for annulment, but I am
concerned that the court might decide we do not have grounds
for an annulement [sic]. If that is the case, I would then
like to proceed directly to dissolution of marriage. I forego
my previous claim for any financial reimbursement from Mr.
the relationship between the parties initially deteriorated,
they were later able to resolve at least some of their
differences. On September 17, 2015, the Wife filed a
"Motion to Enforce Stipulation & Settlement
Agreement and Request for Uncontested Hearing." In the
motion, the Wife requested that the court "move forward
to uncontested final judgment on the Husband's Petition
Wife's motion to enforce stipulation was set for hearing
on November 18, 2015; however, for reasons not apparent from
the record, that hearing did not go forward. Instead, it was
rescheduled for January 6, 2016. Again however, for reasons
not apparent from the record, the scheduled hearing did not
occur. But instead of resetting the motion to enforce for
hearing, the Wife filed a motion for judgment on the
pleadings together with a notice of final hearing, which set
the date of the hearing for March 1, 2016.
anticipation of the noticed final hearing, the Wife filed a
"Stipulation to Final Judgment of Annulment." In
this stipulation, the parties agreed that the Husband's
petition for annulment would be granted and that the Wife
would pay $1500 toward the Husband's attorney's fees.
Paragraph five of the stipulation provided:
The Husband can proceed to final hearing on March 1, 2016,
without the Wife present pursuant to this Stipulation and the
Wife waives appearance at the final hearing but agrees to the
Stipulation contained herein and asks that the Court enter a
Judgment of Annulment and approve the stipulation herein.
Wife also filed a waiver of appearance, in which she asked
the court to sign a final judgment of annulment at the
hearing and provide her with a copy.
March 1, 2016, final hearing, counsel for both parties
appeared; however, neither party appeared. At the start of
the hearing, the trial court sua sponte requested that the
attorneys call their clients and request their presence at
the hearing. While the Wife's counsel was able to contact
her and she appeared at the hearing, the Husband's
counsel was apparently not able to reach the Husband, and he
did not attend. Nevertheless, the trial court went forward
with an evidentiary hearing, swearing in the Wife and taking
testimony from her. Based solely on the Wife's testimony,
the court rejected the parties' stipulation to an
annulment and, at the Wife's ore tenus request, proceeded
to consider her counterpetition for dissolution. The trial
court granted this request and, even though ...