Third District Court of Appeal
State of Florida
Opinion filed June 2, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-911
Lower Tribunal No. 21-6462
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Kelly Lopez,
Petitioner,
vs.
Hiram Frometa,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Martin
Zilber, Judge.
Twig, Trade, & Tribunal, PLLC, and Morgan L. Weinstein (Fort
Lauderdale), for petitioner.
Law Office of Ada M. Barreto, P.A., and Ada M. Barreto, for
respondent.
Before SCALES, MILLER and LOBREE, JJ.
PER CURIAM.
Petitioner Kelly Lopez seeks certiorari review of an April 7, 2021 trial
court discovery order requiring Lopez to submit to a hair follicle drug test in
proceedings related to her petition for dissolution of marriage with dependent
or minor children. 1 Because we conclude that Lopez did not receive
adequate notice of the hearing in which the trial court ordered the drug test,
we grant the petition for writ of certiorari.
On March 31, 2021, Lopez, acting pro se, filed in the trial court her
petition to commence divorce proceedings against her husband, respondent
Hiram Frometa. On the same day, Frometa, also acting pro se, answered
Lopez’s petition and agreed to all requested relief in Lopez’s petition.
Sometime during the following week, their cooperative divorce disintegrated.
On April 7th, Frometa, now represented by counsel, both filed an
“Emergency Motion to Abate Timesharing or in the Alternative, for
Supervised Timesharing and Drug Testing” and requested a special set
hearing on his emergency motion. In his motion, Frometa requested a court
order for a referral to Family Court Services for Lopez to undergo a hair
follicle drug test.
1
Along with her filing of the certiorari petition, Lopez filed in this Court an
emergency motion to stay the trial court’s order. We temporarily granted
Lopez’s stay motion and ordered respondent Hiram Frometa to file a
response to both Lopez’s stay motion and her certiorari petition. Frometa,
though, failed to respond to either.
2
The trial court received Frometa’s motion and request for hearing at
approximately 11:00 a.m. on April 7th. At 12:48 p.m., the trial court sent
notice that it had set Frometa’s motion for hearing via Zoom at 2:00 p.m.
Notwithstanding the short notice, the parties and counsel for Frometa
appeared at the hearing. Later in the day, the trial court entered the
challenged April 7th order that both adjusted the parties’ timesharing of their
minor children and referred both parties to Family Court Services for drug
testing.
Certiorari is appropriate when a non-final order represents “(1) a
departure from the essential requirements of the law, (2) resulting in material
injury for the remainder of the case (3) that cannot be corrected on
postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc.,
889 So. 2d
812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder,
826 So. 2d 382, 387
(Fla. 2d DCA 2002)). Because the challenged order meets the jurisdictional
prongs (namely, prongs 2 and 3), our inquiry is focused on whether the order
departs from the essential requirements of law. Allstate Ins. Co. v. Langston,
655 So. 2d 91, 94 (Fla. 1995).
Inadequate notice can constitute a deprivation of due process
resulting in a departure from the essential requirements of law, warranting
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certiorari relief. 2 See In re A.W.P., Jr.,
10 So. 3d 134, 136 (Fla. 2d DCA
2009). We conclude that the trial court’s sudden scheduling of the hearing
– i.e., a mere three hours after Frometa’s filing of the motion – and its giving
Lopez a little over an hour’s notice of the hearing resulted in a deprivation of
due process. See Ferris v. Wynn,
242 So. 3d 509, 511 (Fla. 2d DCA 2018)
(holding that emailed notice nineteen hours before hearing to suspend
husband’s timesharing was insufficient notice); Brouard v. McLean,
753 So.
2d 601, 602 (Fla. 4th DCA 2000) (holding that hearing on wife’s emergency
motion to suspend visitation between husband and minor child and to order
husband’s psychological evaluation deprived husband of procedural due
process when husband received notice of hearing the evening before the
morning hearing); Hayman v. Hayman,
522 So. 2d 531, 532-33 (Fla. 2d DCA
1988) (holding that wife was deprived of procedural due process after notice
of fewer than twenty-four hours of contempt hearing for her alleged failure to
deliver custody of minor child to husband); Fla. R. Civ. P. 1.090(d) (service
2
In addition to asserting that she was deprived of due process, Lopez also
argues in her petition that the trial court’s order departs from the essential
requirements of law because it violates Florida Family Law Rule of
Procedure 12.360. The absence of a hearing transcript inhibits our
consideration of this argument; nonetheless, in view of our due process
determination we need not reach this issue.
4
of motion and notice of hearing must be made a reasonable time before
hearing).
Petition granted; order quashed.
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