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Messing v. Nieradka

Florida Court of Appeals, Second District

November 29, 2017

JEFFREY A. MESSING, Appellant,
v.
KAREN M. NIERADKA, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Christopher Nash, Judge.

          Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellant.

          Mark A. Neumaier, Tampa, for Appellee.

          VILLANTI, Judge.

         Jeffrey 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.

          The 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. Messing.

         While 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 for Annulment."

         The 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.

          In 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.

         The 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.

         At the 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 ...


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