final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Baker County. Stanley H.
Griffis, III, Judge.
Michael M. Giel of Giel Family Law, P.A., Jacksonville, for
H. Sapp, pro se, Appellee.
the former wife, appeals a Consent Final Judgment for
Dissolution of Marriage and the denial of her Motion for
Rehearing. She asserts reversible error claiming the trial
court, through its sua sponte modification of the
parties' mediation settlement agreement without providing
her notice and the opportunity to be heard, violated her due
process rights. We agree and reverse and remand for further
years of protracted litigation in this family law matter, the
parties attended court-ordered mediation on January 11, 2017.
After mediating for nine hours, the parties reached a
successful resolution of all issues and generated a
sixteen-page document setting forth the negotiated terms,
including, but not limited to, time-sharing, parental
responsibility, child support, asset distribution, insurance,
tax exemptions, and attorney's fees and costs. The
parties meticulously initialed and executed all pages of the
agreement. The court-appointed mediator and parties filed the
executed settlement agreement, entitled "Consent Final
Judgment for Dissolution of Marriage, " with the trial
court. The mediator also filed a notice advising the trial
court of an agreement reached for "total
trial court had previously scheduled and noticed a
"[f]ive-minute" status conference to occur the day
after mediation. Following mediation and before the status
conference, the former wife filed a waiver in which she: (1)
stated that the parties had reached a complete resolution and
requested the trial court to enter a final order in
conformance with the Consent Final Judgment as executed by
the parties the previous day; (2) "waive[d] notice of
any and all hearings, waive[d] the formal setting of this
cause for final hearing, and waive[d] the necessity of the
Court entering an order Setting the Cause for Trial";
and (3) requested to be provided "Notice of the Final
the former wife nor her attorney attended the status
conference. Counsel for the former husband appeared and
purportedly presented the executed mediation agreement to the
trial court (in the form of a Consent Final Judgment for
Dissolution of Marriage) and requested approval. Scheduled as
a status conference, the event was not recorded. The trial
judge did not approve the executed settlement agreement
reached at mediation, but instead initiated a sua
sponte reworking of the agreement - striking through
provisions, inserting handwritten amendments, and initialing
the edits. The modifications directly contradicted the
parties' mediation agreement by granting shared parental
responsibility, rather than sole parental responsibility to
the former wife, and providing the former husband a tax
exemption for one of the minor children, instead of tax
exemptions to the former wife for both children. The trial
court then entered the final order approving its altered
version of the Consent Final Judgment.
receipt of the Final Judgment and realization that it no
longer reflected the terms negotiated and memorialized by the
parties at mediation, the former wife timely filed a Motion
for Rehearing. She asserted the trial court erred in
modifying the agreement without notice and consent of the
parties and requested a hearing on the matter. The trial
court denied the motion on the sole basis that "[t]he
wife and counsel failed to attend the trial."
appeal, the former wife claims reversible error as a result
of the trial court's sua sponte modification of
the Consent Final Judgment without notice and an opportunity
to be heard, a violation of procedural due process.
Furthermore, she argues the trial court abused its discretion
by denying her Motion for Rehearing on the basis that she
failed to attend trial when no trial had been set or noticed
for that day. Both arguments are meritorious.
courts review possible due process violations in family law
cases de novo. Dep't of Revenue ex rel.
Thorman v. Holley, 86 So.3d 1199, 1204 (Fla. 1st DCA
2012). Denials of motions for rehearing are reviewed for
abuse of discretion. Trammell v. Ward, 667 So.2d
223, 226 (Fla. 1st DCA 1995).
the trial court's determination that it would not approve
(without acquisition or contemplation of additional evidence)
the settlement agreement as presented by the parties, the
trial court should have terminated the status conference and
noticed the cause for an evidentiary hearing.
"Blindsiding a party by announcing on the day of the
hearing that the court will entertain evidence at a hearing
not noticed as an evidentiary hearing is the epitome of a due
process violation." Messing v. Nieradka, 230
So.3d 962, (Fla. 2d DCA 2017) (citing Jackson v. Leon
Cty. Elections Canvassing Bd., 204 So.3d 571, 578 (Fla.
1st DCA 2016)). "'[T]he opportunity to be heard at
an evidentiary hearing requires time to secure the attendance
of witnesses and to prepare for the presentation of evidence
and argument.'" Jackson, 204 So.3d at 578
(quoting Crepage v. City of Lauderhill, 774 So.2d
61, 65 (Fla. 4th DCA 2000)). Here, the trial court not only
failed to provide the former wife with requisite notice of an
evidentiary hearing, but then proceeded, in her absence, to
perform an unsolicited redraft of the executed mediation
asserting the trial court erred by not honoring the mediation
agreement of the parties, the former wife does not contest
the general rule in Florida that settlement provisions
concerning child support, custody, and visitation must be
reviewed and approved by the trial court as being in the best
interest of the children. Griffith v. Griffith, 860
So.2d 1069, 1071 (Fla. 1st DCA 2003) (citing Feliciano v.
Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996)). Instead,
she correctly claims such discretion does not provide a ...