Barreiro v. Barreiro, s. 79-1672

• Decision Date: 11 December 1979
• Docket Number: Nos. 79-1672,79-1940,s. 79-1672
• Citation: 377 So.2d 999
• Parties: Frank L. BARREIRO, Appellant, v. Patricia BARREIRO, Appellee.
• Court: Florida District Court of Appeals

Page 999

377 So.2d 999

Frank L. BARREIRO, Appellant, v. Patricia BARREIRO, Appellee.

Nos. 79-1672, 79-1940.

District Court of Appeal of Florida, Third District.

Dec. 11, 1979.

Susan M. Girsch, Miami, for appellant.

Francis T. O'Donnell, Jr., Miami, for appellee.

Before PEARSON, SCHWARTZ and NESBITT, JJ.

PER CURIAM.

Without prior notice, without appropriate pleadings, and over the objection of the husband, the trial judge expanded the scope of an "emergency hearing" which had been set only upon the wife's motion for the enforcement of out-of-state summer visitation with the parties' son, who was in his father's custody. The court thereafter provided, among other things, for temporary child support, transportation costs, grandparents' visitation, the terms of the wife's subsequent visitation, and the imposition of a constructive trust in favor of the appellee on the proceeds of property which she had conveyed to the husband pursuant to a property settlement agreement six years before. In so doing, the lower court was in palpable error. It was plainly improper, and clearly in violation of the appellant's due process rights, to hear and determine matters which were not the subject of appropriate pleadings or notice. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Matthews v. Matthews, 376 So.2d 484 (Fla. 3d DCA 1979), and cases cited; Koken v. Neubauer, 374 So.2d 49 (Fla. 3d DCA 1979), and cases cited. Accordingly, with the sole exception of paragraph 1, which dealt with the summer visitation issue, the order of July 25, 1979 under review is, in its entirety,

Reversed.