Ferris v. Winn, Case No. 2D17–1075

• Decision Date: 06 April 2018
• Docket Number: Case No. 2D17–1075
• Parties: James Leigh FERRIS, Appellant, v. Dianna WINN f/k/a Dianna M. Ferris, Appellee.
• Court: Florida District Court of Appeals

242 So.3d 509

James Leigh FERRIS, Appellant,

v.Dianna WINN f/k/a Dianna M. Ferris, Appellee.

Case No. 2D17–1075

District Court of Appeal of Florida, Second District.

Opinion filed April 6, 2018.

Michael E. Chionopoulos of Absolute Law, P.A., Fort Myers, for Appellant.

Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee.

BADALAMENTI, Judge.

The former husband, James Ferris (the "father"), appeals the trial court's nonfinal order granting the former wife's, Dianna Winn (the "mother"), verified emergency motion ("verified motion") to suspend a mediated postdissolution timesharing agreement and prohibiting the father from contacting their three minor children. On appeal, the father argues that he was deprived of his procedural due process rights because nineteen hours' notice of the hearing on the mother's verified motion was insufficient. We agree and reverse.

Procedural due process "is comprised of ‘both fair notice and a real opportunity to be heard.’ " In re C.K., 88 So.3d 975, 977 (Fla. 2d DCA 2012) (quoting Borden v. Guardianship of Borden–Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002) ). "The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance ... [while] the opportunity to be heard must be at a meaningful time and in a meaningful manner." Id. (alteration in original) (quoting Borden, 818 So.2d at 607 ).

Section 61.518(1), Florida Statutes (2017), mandates that "[b]efore a child custody determination is made under this part, notice and an opportunity to be heard ... must be given to ... any parent whose parental rights have not been previously terminated." The legislature defines "[c]hild custody determination" as a "judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order." § 61.503(3). Further, Florida Rule of Civil Procedure 1.090(d) requires a party to serve a copy of any written motion and a copy of the notice of the hearing "a reasonable time before the time specified for the hearing." "While there are no hard and fast rules about how many days constitute a ‘reasonable time,’ the party served with notice must have actual notice and time to prepare." Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). That said, a parent's "right to due process may give way when an emergency situation exists, ‘such as where a child is threatened with physical harm or is about to be improperly removed from the state.’ " Bahl v. Bahl, 220 So.3d 1214, 1216 (Fla. 2d DCA 2016) (quoting Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006) ).

As an initial matter, the parties do not dispute, and we agree, that no emergency situation existed based on the mother's verified motion so as to allow the father's procedural due process rights to "give way." See id. In Bahl, the mother filed an emergency petition for change in her timesharing agreement with the father. Id. at 1215. There were no allegations that the father threatened the child with physical harm. Id. at 1216. Instead, the mother alleged " ‘ongoing parental alienation perpetrated’ by the father towards the mother." Id. Our court explained that while "the allegations by the mother ... were serious and warranted consideration by the trial court, they did not rise to the level of harm that would excuse the trial court from providing the father with an opportunity to be heard." Id.

Here, the mother's verified motion alleged that the father engaged in extreme parental alienation while the children were assimilating to living with her in Indiana.

Specifically, the mother asserted that the father emailed their minor children urging the children to not obey the mother. She further contended that the father "wrongfully and consistently tried to alienate the minor children's feelings towards [her]" by posting "hateful, inflammatory, outrageous and false allegations" on social media about the mother. Like Bahl, the mother here made allegations that the father acted to alienate the children from her through communications with the children. See id. Also like Bahl, the mother did not allege that the children were in threat of physical harm by the father. See id. Although the father's alleged conduct here is serious and warrants consideration by the trial court, the alleged conduct set forth in the verified motion did not establish an emergency situation so as to quell the father's procedural due process rights. See id.; Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997) (noting that a court may enter an order granting a motion for temporary custody without affording notice to the opposing party where an emergency exists, such as "where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state").

Having identified that there was no emergency situation set forth in the verified motion, we next address whether the notice provided to the father was adequate to protect the father's procedural due process rights. The mother filed her verified motion on February 8, 2017, at 10:14 a.m. At 3:17 p.m. on that same day, the father and an attorney who had represented the father for a portion of the postdissolution proceedings were served via email by the mother's attorney with notice that a hearing on the mother's emergency motion would take place on February 9, 2017, at 10:30 a.m. Approximately one hour later, the father's former attorney filed a "Notice of Non–Representation," advising the trial court that he no longer represented the father and therefore would not be attending the hearing.

Neither the father nor any attorney representing the father attended the February 9 hearing, which took place approximately nineteen hours after the mother's attorney...