Opinion
No. 1D22-3537
08-02-2023
Katie Ruthlaine CHAMBERLAIN, Appellant, v. Andrew Leslie DEGNER, Appellee.
Gilbert J. Alba of Alba & Straile, PLLC, Gainesville, for Appellant. Darby F. Hertz of Hertz & Kearns, Gainesville, for Appellee.
Gilbert J. Alba of Alba & Straile, PLLC, Gainesville, for Appellant.
Darby F. Hertz of Hertz & Kearns, Gainesville, for Appellee.
Ray, J. Katie Chamberlain (the "Former Wife") appeals an order granting relief from judgment for Andrew Degner (the "Former Husband"). In short, the trial court concluded that the judgment was void for due process reasons because the Former Husband was not served with notice of trial in the manner set forth by rule, and the judgment granted relief not pleaded. We disagree. Because the Former Husband had actual notice of the proceeding and a meaningful opportunity to be heard on all matters for which relief was granted, there were no due process violations that would justify setting aside the final judgment. We therefore reverse and remand for reinstatement of the underlying judgment.
I
A few years after the parties divorced, the Former Wife filed a supplemental petition to modify the parenting plan, timesharing, and child support. Among other claims, she alleged that the Former Husband failed to adhere to the timesharing schedule and that child support should be retroactively modified accordingly. She also asked that the Former Husband's timesharing be restricted or supervised for the safety of the children due to his alcohol and substance abuse problems. Through counsel, the Former Husband answered the petition.
Several months later, the Former Husband's attorney moved to withdraw after multiple attempts to gain discovery compliance from the Former Husband. On February 15, 2022, the trial court held a status conference and addressed outstanding motions, including the motion to withdraw and the Former Wife's motions to compel discovery. The court granted counsel's motion to withdraw and orally announced a trial date on the Former Wife's petition for May 5. Although there is no transcript of this hearing, it is undisputed that the Former Husband was present and confirmed his availability for the May 5 trial date.
Over the next few weeks, the trial court issued a series of orders on the matters considered at the February 15 hearing. Of note, the order granting counsel's motion to withdraw designated a physical mailing address and an email address for the Former Husband. The court's orders were served on the Former Husband by email.
The next month, the court sua sponte entered an amended trial order to add a pretrial conference on April 5. Like the prior orders, the amended trial order was emailed, but not mailed, to the Former Husband.
The Former Husband appeared at the April 5 pretrial conference—which, to repeat, was noticed only by email service—and testified in response to a pending motion for contempt. At that hearing, he again confirmed that he was available for the May 5 trial date. The trial court subsequently issued a written order granting the Former Wife's motion for contempt. That order was emailed, but not mailed, to the Former Husband.
In the meantime, the Former Wife filed another motion for contempt, which was noticed to be heard at the same time as the May 5 trial. This time, the notice was mailed and emailed to the Former Husband. When it came time for the May 5 trial on the Former Wife's petition, the Former Husband did not attend. After considering the evidence before it, the court granted the Former Wife's petition and her motion for contempt. In relevant part, the court awarded the Former Wife sole parental responsibility and ordered the Former Husband to complete mental health and substance abuse evaluations. The order also made these findings regarding notice and the Former Husband's failure to appear:
The certificate of service on the notice of hearing shows that it was mailed to the Former Husband at the physical address provided by his former attorney in her motion to withdraw — the same address designated in the court's order granting the motion to withdraw. The Former Wife states that mail sent to this mailing was returned as undeliverable.
10. [The Former Husband] testified at the April 05, 2022, hearing on [the Former Wife's] Motion for Contempt and Sanctions, that he suffers with depression which prevent him from engaging in activities such as collecting documents. The Court, [the Former Husband], and counsel for [the Former Wife] scheduled the Non-Jury Trial, in which all parties verified they were available for the selected date. With [the Former Husband] present, the Court gave permission for the Motion for Contempt to also be considered.
11. Thus, the Court finds [the Former Husband] had actual notice of the scheduled non-jury trial and motion for contempt.
12. Nonetheless, [the Former Husband] failed to appear at the hearing, failed to provide further documents contesting the relief requested and continued to fail to comply with the Court's prior orders on financial discovery.
(Emphasis added.) That order was emailed, but not mailed, to the Former Husband.
A month later, the Former Wife filed a motion for contempt to enforce the trial court's order on her supplemental petition. The motion was set for hearing on August 11. The day before the hearing, the Former Husband, through his new attorney, filed a motion for relief from judgment and motion to continue the hearing. He claimed that under Florida Family Law Rule of Procedure 12.540(b)(4), the final judgment granting the Former Wife's supplemental petition was void because he did not designate an email address for service after his attorney withdrew. Thus, according to him, his due process rights were violated when documents were emailed to him rather than being mailed as required by Florida Rule of General Practice and Judicial Administration 2.516(b)(2). He also argued that the final judgment was void because it granted relief that allegedly was not pleaded by the Former Wife. He asked that he be granted relief from all orders entered after his attorney withdrew.
After a hearing on the Former Husband's motion, the trial court granted him relief from judgment for the reasons he had argued. It found that despite having actual notice of the trial date, he still suffered a due process violation. The court excused his failure to appear because he admitted having substance abuse and mental health issues that affected his ability to carry out daily tasks. This appeal followed.
II
A trial court may relieve a party from a final judgment in a family law case if the judgment is void. Fla. Fam. L. R. P. 12.540(b)(4). Relevant here, a judgment is void "if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard." Nationstar Mortgage, LLC v. Diaz , 227 So. 3d 726, 729 (Fla. 3d DCA 2017). We review a trial court's ruling on a motion for relief from judgment for an abuse of discretion. See Gjokhila v. Seymour , 349 So. 3d 496, 499 n.2 (Fla. 1st DCA 2022) ("[M]otions under rule 12.540(b) are governed by the body of law applicable to rule 1.540(b)." (quoting Sanchez v. Sanchez , 285 So. 3d 969, 971 n.1 (Fla. 3d DCA 2019) )). But pure issues of law within the order, such as possible due process violations, are reviewed de novo. Williams v. Sapp , 255 So. 3d 912, 914 (Fla. 1st DCA 2018).
Florida Family Law Rule of Procedure 12.080(b) addresses the service of orders and states that a "copy of all orders or judgments involving family law matters ... must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment." The rule also says that every other document filed after the initial pleading must be served in conformity with Florida Rule of General Practice and Judicial Administration 2.516. Id. at (a).
In turn, rule 2.516 gave an unrepresented party the option of designating an email address for service. Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(1)(C) ("Any party not represented by an attorney may serve a designation of a primary e-mail address ... to which service must be directed in that proceeding by the means provided in subdivision (b)(1) of this rule [addressing service by e-mail].") (emphasis added). But if an unrepresented party did "not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2) [addressing service by other means]." Id. (emphasis added).
An amendment to the rule that became effective on October 1, 2022, changed the permissive nature of service by email. See In re: Amends. to Fla. Rules , 346 So. 3d 1105, 1109, 1125–28 (Fla. 2022). It now requires a party to designate an email address for service unless excused by the court because the party does not have an email account or Internet access. Id. at (b)(1)(D)(ii). But the relevant hearings in this case took place before that amendment became effective, so the prior version of rule 2.516 will be applied in this appeal. See Mendez-Perez v. Perez-Perez , 656 So. 2d 458, 460 (Fla. 1995) ("We have held that rules of procedure are prospective unless specifically provided otherwise.").
Here, there is no evidence that the Former Husband designated his email address for service at the February 15 hearing. There is no transcript of that hearing where the Former Wife alleges that the Former Husband "consented" or "acquiesced" to service by email because he agreed to receive other communications that way.
Even so, the Former Husband did have actual notice of the May 5 trial date on the Former Wife's supplemental petition. It is undisputed that he was present when the court first set the trial date at the February 15 hearing; he was reminded of the trial date at the April 5 hearing; and he confirmed his availability on both occasions. Yet he chose not to appear.
Procedural due process requires both reasonable notice and a meaningful opportunity to be heard. James v. Teymorzadeh , 357 So. 3d 799, 800 (Fla. 1st DCA 2023). Considering that the Former Husband had actual knowledge of the May 5 trial date, there was no due process violation. See Henderson-Bullard v. Lockard , 204 So. 3d 568, 569–70 (Fla. 5th DCA 2016) (holding that the appellant failed to establish a due process violation that would justify setting aside an order when he received notice of the underlying proceeding, stating that "lack of strict compliance with the service requirements set forth in rule 2.516 does not render a judgment void, particularly when a party receives notice of the proceeding"); Stone v. Germann , 305 So. 3d 28, 29 (Fla. 3d DCA 2019) (holding that even if service of notice of a hearing were deficient, the appellant's due process rights were not violated because he had actual knowledge of the date of that hearing and was aware of the proceeding but "simply failed to appear as required").
More broadly, the trial court abused its discretion by overriding the Former Husband's actual notice of the trial date to find a due process violation, excusing his failure to appear because he admitted having substance abuse and mental health issues that affected his ability to carry out daily tasks. See Miami-Dade Cnty. v. Wilson , 44 So. 3d 1266, 1270 (Fla. 3d DCA 2010) ("Due process does not require the affected person receive notice; it only requires that the government give notice."). Nothing in the record shows that he asked for a continuance or otherwise argued that he could not attend the trial because of those conditions. Cf. Lopez v. Lopez , 689 So. 2d 1218, 1219 (Fla. 5th DCA 1997) (holding that the trial court reversibly erred by failing to rule on the appellant's motion for a continuance of a hearing based on his mental and emotional problems that affected his ability to appear at the hearing).
That the Former Husband did not receive a copy by mail of the order granting the Former Wife's supplemental petition does not render the order void either. He had actual notice of the trial months in advance, but chose not to appear. Renovaship, Inc. v. Quatremain , 208 So. 3d 280, 285–86 (Fla. 3d DCA 2016) (holding that there was no rational basis to conclude an order was void on due process grounds under those circumstances and distinguishing between a judgment entered without any notice of the hearing, which renders the judgment void, and a judgment arising out of a hearing the party had notice of but chose not to participate in, which does not render the judgment void). For the same reasons, the March 1 order compelling disclosure and discovery and the April 12 order granting the Former Wife's motion for contempt are not void. The March 1 order arose from the hearing he attended on February 15, and the April 12 order arose from the hearing he attended on April 5. Thus, the trial court erred by granting him relief from those orders as well.
III
"[A] judgment which grants relief wholly outside the pleadings is void." Deutsche Bank Nat'l Tr. Co. v. Patino , 192 So. 3d 637, 638 (Fla. 5th DCA 2016) (quoting Wachovia Mortg. Corp. v. Posti , 166 So. 3d 944, 945 (Fla. 4th DCA 2015) ) (reversing an order denying a motion to vacate a final judgment as void under rule 1.540 because it granted relief outside the pleadings); Bank of N.Y. Mellon v. Reyes , 126 So. 3d 304, 309 (Fla. 3d DCA 2013) (same).
There is an exception to that rule if the issue is tried by consent. See Fed. Home Loan Mortg. Corp. v. Beekman , 174 So. 3d 472, 475 (Fla. 4th DCA 2015). But here, the Former Husband did not attend the trial and thus any issue could not be tried by consent. See Athienitis v. Makris , 346 So. 3d 732, 734–35 (Fla. 2d DCA 2022) (holding that an issue was not tried by consent after a party unexpectedly left a hearing before the issue arose); Clark v. Clark , 147 So. 3d 655, 656–57 (Fla. 5th DCA 2014) (holding that an issue was not tried by consent when a party failed to appear for a hearing, even though the notice of hearing was sent to his correct address); Blanton v. Baltuskouis , 20 So. 3d 881, 883–84 (Fla. 4th DCA 2009) (holding that a party's failure to appear at trial did not constitute his consent to an amendment in the pleadings). Still, the Former Wife's petition sufficiently alleged facts that encompassed granting her sole parental responsibility. She alleged that the Former Husband had been intermittently or sporadically exercising his timesharing with the children, and then he chose not to exercise the equal (week on/week off) timesharing schedule that he was entitled to after he moved near the children's school. He admitted being an alcoholic and asked her for help while he entered a detox program. He continued consuming marijuana and alcohol when he visited with the children, and she requested that his timesharing be supervised or restricted until he completed an alcohol treatment program. She alleged that those changes would be in the best interest and for the safety of the children. In all, she pleaded facts showing that she was the sole caretaker of the children after he moved closer to them because he was suffering from alcohol and substance abuse problems, and she wanted his contact with them to be supervised for their protection. See Perlow v. Berg-Perlow , 816 So. 2d 210, 216 (Fla. 4th DCA 2002), rev'd on other grounds , 875 So. 2d 383 (Fla. 2004) (holding that the petitioner sufficiently alleged grounds for awarding her sole parental responsibility by stating she was fit to have sole custody of the child, that shared parental responsibility was inappropriate, and it was in the child's best interest to have the father's visitation restricted); cf. Infante v. Vantage Plus Corp. , 27 So. 3d 678, 680–81 (Fla. 3d DCA 2009) (reversing an order vacating a final judgment as void for failure to properly plead counts of theft and holding that although the complaint did not use the words "criminal intent," the allegations were detailed enough in describing the defendant's misconduct).
The remaining alleged deficiencies are not deficiencies in the Former Wife's pleadings. The trial court's failure to find that the Former Husband had the ability to pay arrearages, fees, and costs within a specific time period is a failure by the trial court to make sufficient findings of fact. The Former Husband did not allege that the Former Wife failed to ask for an award of those amounts or that he lacked notice they would be considered, and a court has discretion to determine how they will be paid. See Tinoco v. Lugo , 342 So. 3d 845, 850 (Fla. 2d DCA 2022) (discussing a trial court's discretion when determining how child support will be paid, but requiring findings of fact to support the decision); Buttermore v. Meyer , 559 So. 2d 357, 359 (Fla. 1st DCA 1990) (holding that the trial court failed to make sufficient findings justifying its decision allowing the former husband to repay support arrearages in minimal installments); see also Stricklin v. Stricklin , 247 So. 3d 96, 98–99 (Fla. 1st DCA 2018) (holding that the trial court failed to make sufficient findings justifying its decision requiring the former husband to repay attorney's fees and costs in large monthly installments).
Nor did the court err by failing to consider a payment plan for the payment of retroactive child support under section 61.30(17), Florida Statutes, because that consideration is discretionary or permissive, not mandatory. See id. at (c) (stating that the court "should" consider a payment plan).
Additionally, the trial court's reasons for finding there was an insufficient basis to order a mental health evaluation for the Former Husband describe deficiencies in the court's findings of fact and the Former Wife's proof at an evidentiary hearing. See Oldham v. Greene , 263 So. 3d 807, 812–13 (Fla. 1st DCA 2018) (discussing a trial court's duty to make sufficient findings, the requesting party's burden of proof, and the evidence that was before the court to satisfy the "in controversy" and "good cause" prongs supporting a psychological examination in a family law case). "[A] rule 1.540 motion is not an appropriate means of challenging the merits of the underlying judgment." Parkhomchuck v. AIY, Inc. , 338 So. 3d 397, 400 (Fla. 3d DCA 2022). The rule does not replace a motion for rehearing or direct appeal. Gjokhila , 349 So. 3d at 499 ; see also Balmoral Condo. Ass'n v. Grimaldi , 107 So. 3d 1149, 1153 (Fla. 3d DCA 2013) (reaffirming that a trial court is "not empowered to revisit a final judgment on the merits so as to correct errors of law as the trial court may do on a motion for rehearing") (quoting Herskowitz v. Herskowitz , 513 So. 2d 1318, 1319 (Fla. 3d DCA 1987) ). Thus, the trial court erred when it relied on these alleged deficiencies in findings of fact or evidentiary proof to determine that the final judgment was void for granting relief that was not pleaded.
IV
Because the Former Husband had actual notice of the trial date on the Former Wife's petition and chose not to attend, there is no due process violation rendering the final judgment void. And the allegations in her petition were sufficient to encompass the relief granted by the trial court. Thus, the trial court erred by granting the Former Husband's motion for relief from judgment, and we reverse and remand with instructions that the final judgment be reinstated.
REVERSED and REMANDED with instructions.
Osterhaus, C.J., and Winokur, J., concur.