Marcus T. Thomas, Sr., Appellant,
Khadejah Cromer, Appellee.
final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge. Lower Tribunal No. 16-9933
Cherof, Doody & Ezrol, P.A., and Michael D. Cirullo, Jr.,
(Fort Lauderdale), for appellant.
Valiente Law, P.A., and Antonio F. Valiente, for appellee.
EMAS, C.J., and LINDSEY, and MILLER, JJ.
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.
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
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.
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).
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).
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 ...