Alfonso v. Alfonso, 3D01-623.

• Decision Date: 07 August 2002
• Docket Number: No. 3D01-623.,3D01-623.
• Citation: 823 So.2d 261
• Parties: Ralph ALFONSO, Appellant, v. Gloria ALFONSO, Appellee.
• Court: Florida District Court of Appeals

823 So.2d 261

Ralph ALFONSO, Appellant, v. Gloria ALFONSO, Appellee.

No. 3D01-623.

District Court of Appeal of Florida, Third District.

August 7, 2002.

Ralph Alfonso, in proper person.

Kutner, Rubinoff, Busch & Lerner, and Susan S. Lerner, Miami, for appellee.

Before JORGENSON, LEVY and SORONDO, JJ.

SORONDO, J.

Ralph Alfonso appeals a final judgment dissolving his marriage to Gloria Alfonso. He argues that the trial court erred in denying him the inherent right to be present at the final hearing and that the trial court abused its discretion when it scheduled the final hearing less than thirty days from the service of notice for trial. We disagree and affirm.

Ralph and Gloria were married on September 20, 1994. They had their only child eleven months later and separated one year thereafter.

Ralph was arrested and ultimately convicted of felonies which resulted in a lengthy jail sentence that he is serving at the DeSoto Correctional Institution in Arcadia, Florida. Gloria petitioned for dissolution of marriage on November 13, 2000, seeking sole parental custody and responsibility of the minor child, Gabriel, and no visitation for Ralph. Ralph answered and filed a counter-petition on January 11, 2001, seeking a dissolution of the marriage and "temporary" sole parental responsibility to Gloria until his release from prison. He further sought regular visitation with his son, and deferral of child support payments until his release.

The final hearing was held on February 6, 2001. The trial court entered a Final Judgment of Dissolution of Marriage awarding Gloria sole parental responsibility of the couple's only child. The court reserved jurisdiction as to the issues of visitation, child support, marital debts, medical insurance, and attorneys' fees and costs.

Although, Ralph was not given an opportunity to appear at the final hearing, in person or telephonically, he never made such a request in this case. See Johnson v. Johnson, 783 So.2d 326 (Fla. 1st DCA 2001)(when a party is incarcerated and cannot physically appear in a civil matter, the trial court should grant a request to hold necessary hearings by telephone); Waugh v. Waugh, 679 So.2d 1, 2 (Fla. 2d DCA 1996) (incarcerated husband's due process rights were violated in divorce proceeding where trial court failed to consider the inmates request to be transported to the final hearing); Baker v. Baker, 403 So.2d 1111, 1113 (Fla. 2d DCA 1981) (holding that when incarcerated husband indicates a desire to present evidence, trial court should afford husband opportunity to make arrangements to attend the hearing). Accordingly, he cannot now claim that he was denied the right to be present. See Murphy v. City of Port St. Lucie, 666 So.2d 879, 880 (Fla.1995) (holding that an issue not raised during trial is unrecognizable on appeal); Sierra by Sierra v. Public Health Trust of Dade County, 661 So.2d 1296, 1298 (Fla. 3d DCA 1995) (holding that an appellate court may not rule on issues not raised at the trial level); Cabral v. Diversified Servs., Inc., 560 So.2d 246, 248 (Fla. 3d DCA 1990) (holding that "generally, only questions that were before the trial court may be reviewed on appeal"); Little Beaver Theatre, Inc. v. State ex rel. Gerstein, 259 So.2d 217, 218 (Fla. 3d DCA 1972) (holding that only questions timely and properly raised below can be presented for the first time on appeal).

Ralph further argues that he received only four-days notice prior to trial. Rule 1.440(c), Florida Rules of Civil Procedure, states in part that a court shall set an action no...