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Thomas v. Cromer

Florida Court of Appeals, Third District

June 12, 2019

Marcus T. Thomas, Sr., Appellant,
Khadejah Cromer, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. Lower Tribunal No. 16-9933

          Goren, Cherof, Doody & Ezrol, P.A., and Michael D. Cirullo, Jr., (Fort Lauderdale), for appellant.

          Valiente Law, P.A., and Antonio F. Valiente, for appellee.

          Before EMAS, C.J., and LINDSEY, and MILLER, JJ.

          MILLER, J.

         The 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.[1]

         The 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 Statutes (2018).[2]

         Thereafter, 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.[3] 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.[4] This appeal ensued.


         We 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).


         "No 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."[5] 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).

         Florida 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 ...

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