Waugh v. Waugh, 95-00767
| Decision Date | 12 April 1996 |
| Docket Number | No. 95-00767,95-00767 |
| Parties | 21 Fla. L. Weekly D901 Thomas Vincent WAUGH, Appellant, v. Caren WAUGH, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Pinellas County; Bonnie S. Newton, Judge.
Thomas Vincent Waugh, pro se.
Raleigh W. Greene III, St. Petersburg, for Appellee.
The husband appeals a final judgment in a dissolution of marriage action. We reverse because the husband, who was incarcerated at the time of the final hearing, was denied due process and because the judgment provisions regarding visitation and child support are legally insufficient.
The husband contends that the trial court erred in denying his motions to transport and to testify at the final hearing. Although no orders on the motions appear in the record, the final judgment makes it clear that the husband was not heard at the final hearing, either in person or by telephone.
Before the trial court decides not to have an inmate transported for attendance at a civil proceeding, it must first consider factors such as risk of escape, need for expedited disposition, costs, inconvenience, security precautions, the nature of the hearing, impact of court ordered transportation on the state and the correctional agencies involved and any other relevant factors. Little v. Little, 616 So.2d 1179 (Fla. 1st DCA 1993). See also Brown v. Sheriff of Broward County Jail, 502 So.2d 88 (Fla. 4th DCA 1987). "Moreover, as alternatives to ordering an inmate's physical presence at a proceeding, the trial court may properly consider conducting the hearing by telephone, or permitting the taking of the inmate's deposition...." Conner v. Conner, 590 So.2d 513 (Fla. 1st DCA 1991).
The record before us does not indicate that the trial court gave any consideration to the factors which should be considered in deciding whether to order an inmate transported to a civil hearing or whether the trial court considered any alternatives to ensure that the husband's due process rights were protected. On remand, the trial court must consider these factors and either order the husband transported to the final hearing or utilize any authorized alternatives to his physical presence.
The husband also contends that the final judgment's provision regarding visitation is ambiguous and improper. We agree. The judgment provides: "Visitation for the Husband, when and if appropriate, shall be supervised by the Wife and shall only take place subsequent to the Husband's completing the Children and Divorce course and regularly paying the Court ordered child support." There are no additional provisions in the judgment that clarify the phrase "when and if appropriate." Upon remand the trial court should enter a more specific order that either grants specified visitation rights or denies visitation rights after considering the best interests of the minor child.
Also, the final judgment improperly conditions the husband's visitation rights upon his payment of child support. Section 61.13(4)(a), Florida Statutes (1993), provides: "When a noncustodial...
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