Mizrahi v. Mizrahi, 3D03-644.

CourtCourt of Appeal of Florida (US)
Citation867 So.2d 1211
Docket NumberNo. 3D03-644.,3D03-644.
PartiesRalph MIZRAHI, Appellant, v. Noemi MIZRAHI, Appellee.
Decision Date10 March 2004

Paul Morris, Miami; and Andrew H. Boros, Coral Gables, for appellant.

Lehr Fischer Feldman & Gasalla, and Martin E. Feldman, Coconut Creek, for appellee.

Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.

RAMIREZ, J.

The former husband Ralph Mizrahi (the father) appeals the trial court's orders denying his motion for contempt and denying his motion for rehearing. The former wife Noemi Mizrahi (the mother) cross-appeals the order denying the father's motion for contempt which denies her attorneys' fees and costs. We affirm the trial court's orders in all respects except that portion where the trial court modified the children's travel restrictions because it violated the father's due process rights. We also affirm the mother's cross-appeal.

In October of 1990, the trial court entered a final judgment dissolving the parties' marriage and adopted the parties' Marital Settlement Agreement. The Marital Settlement Agreement contained a provision relating to attorneys' fees and costs as follows:

19. Default. In the event either party defaults in the performance of their obligations hereunder, the party in default shall be liable to the non-defaulting party for all reasonable attorneys' fees and costs in the enforcement of the obligations created by this Agreement, including costs and fees of any appeal.

The General Master subsequently addressed various post-dissolution issues. On May 9, 1991, the trial court entered an order on the report of the General Master, and adopted the report and recommendation of the General Master. The General Master's report contained a provision that stated, "[t]he parties must agree as to when the children may travel out of the country. Plans should be made well in advance so that if the parties cannot agree, the matter can be addressed by the court." The mother filed no objection to the travel restriction, and the father did not appeal the trial court's order adopting the report and recommendation of the General Master.

The father then filed a Verified Motion for Contempt for the mother's failure to comply with the shared parenting requirements and a motion for injunction to prevent future travel of the two minor children. The father claimed that the mother had allowed one of the minor children to travel on a vacation outside the country for a few days on a cruise with the mother's friends and family. The father's counsel at the time did not refer to the travel restriction contained in the May 9, 1991 order. The trial court held a full evidentiary hearing on July 9, 2002, after which the trial court denied the motion. The trial court, not having been apprised of the May 9, 1991 order, was not aware of any travel restriction.

The father then filed a motion for rehearing, attaching the May 9, 1991 order adopting the report and recommendation of the General Master to the motion for rehearing and argued that he had found this order entered subsequent to the Marital Settlement Agreement which barred the minor children from traveling. The mother argued that the motion for rehearing should be denied because the father was aware of the existence of that additional order and failed to present any argument on it at the hearing. The court denied the father's motion for rehearing.

Through new counsel, the father thereafter filed a second motion for contempt on October 10, 2002, his Verified Motion for Contempt for Mother's Failure to Abide by Court Order. He alleged the same factual basis as his first motion for contempt and referred to the May 9, 1991 order containing the travel restriction. The father further alleged that the mother knowingly violated the May 9, 1991 order when she permitted the minor son to travel outside the U.S. without the father's permission. The father also alleged that the mother was aware of the travel restriction.

A full evidentiary hearing was held on the father's second motion for contempt. The father stated that he had given the son permission to take the trip, but was not told that the trip was outside of the United States. He did not give permission for a trip outside the country. The mother testified that she was aware of the travel restriction order, received a copy of it, and understood it. The court denied the father's motion and entered its order on January 23, 2003, concluding that "there is no basis for barring the children's future traveling."1 This order further denied attorneys' fees and costs to the mother. The father filed a motion for rehearing, contending that the order modified the preexisting travel restriction order of May 9, 1991 without notice to him and thus violated his due process rights. The trial court denied the motion for rehearing.

The father now seeks reversal of the January 23, 2003 order on three grounds, one of which merits discussion. The father contends, in part, that the trial court's order must be reversed because it violates his due process rights. He states that the order was entered without notice to him, and the issue of the minor children's future traveling was not tried by consent of the parties. We agree with the father that by ruling on an issue that was not before the court, the trial court violated the father's right to due process.

Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings. See Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981)

. In the case before us, the father requested a hearing on his motion to hold the mother in contempt for violating the trial court's travel restriction order which prohibited travel outside the country by the parties' children without the consent of both parents or cour...

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21 cases
  • Tracey v. Wells Fargo Bank, N.A.
    • United States
    • Florida District Court of Appeals
    • February 27, 2019
    ...trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings." (quoting Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) ) ); Rankin v. Rankin, 258 So.2d 489, 491 (Fla. 2d DCA 1972) ("We simply say that the pleadings must be such as to af......
  • Tracey v. Wells Fargo Bank, N.A.
    • United States
    • Florida District Court of Appeals
    • March 23, 2018
    ...trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings." (quoting Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA 2004))); Rankin v. Rankin, 258 So. 2d 489, 491 (Fla. 2d DCA 1972) ("We simply say that the pleadings must be such as to af......
  • Celebrity Cruises, Inc. v. Fernandes
    • United States
    • Florida District Court of Appeals
    • November 5, 2014
    ...matter without proper pleadings and notice is violative of a party's due process rights' ”) (emphasis removed) and Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of......
  • Miami-Dade Cnty. Bd. of Cnty. Comm'rs v. An Accountable Miami-Dade
    • United States
    • Florida District Court of Appeals
    • September 20, 2016
    ...(Fla. 3d DCA 2014) (quoting Connell v. Capital City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006) ). Accord Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) ("Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of......
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