Ferris v. Winn
Ferris v. Winn
Opinion of the Court
*510The 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.,
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,
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
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.
*511Specifically, 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,
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 sent email notice of that hearing. The trial court subsequently entered an order suspending the father's timesharing arrangement with the children, suspending all contact from the father with the children, and ordering that the father undergo a psychiatric examination, among other requirements.
After careful review, we hold that the father's procedural due process rights were violated because he was provided inadequate notice of the hearing on the mother's verified motion. Although determining whether notice provided is reasonable depends upon the circumstances of each case, we have not identified a single case where less than twenty-four hours' notice of a hearing impacting an individual's parental rights was upheld as reasonable. See Hayman v. Hayman,
In closing, we commend the trial court on acting promptly in this difficult familial dispute impacting minor children, which has stretched for several years and has involved numerous contentious filings. We are compelled, however, to reverse and remand the case so that the issues raised in the mother's verified motion can be resolved by the trial court after each party receives proper notice and an opportunity to be heard. See Brouard,
Reversed and remanded for further proceedings consistent with this opinion.
SILBERMAN and CRENSHAW, JJ., Concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.