Barsis v. Barsis , 2017 Fla. App. LEXIS 1249 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ZAMEENA ZEENAT BARSIS,
Appellant,
v. Case No. 5D16-2768
EL HOUCINE BARSIS,
Appellee.
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Opinion filed February 3, 2017
Appeal from the Circuit Court
for Orange County,
Bob LeBlanc, Judge.
Andrew F. Nickolaou, of Bernal-Mora
& Nickolaou, Winter Park, for Appellant.
El Houcine Barsis, Orlando, pro se.
LAMBERT, J.
Zameena Zeenat Barsis (“Former Wife”) appeals a nonfinal “Order Regarding
Custody and Support.” Concluding that this order was entered in violation of Former
Wife’s right to due process, we reverse.
In July 2015, a final judgment was entered dissolving the marriage between
Former Wife and El Houcine Barsis (“Former Husband”). The judgment ratified an agreed
parenting plan submitted by the parties, which provided that they share the parental
responsibility for all major decisions involving their three minor children. The parties
agreed to an equal division of timesharing with their children, with the exchange of the
children taking place each Sunday. Former Husband was also ordered to pay Former
Wife $367 per month in child support.
In March 2016, Former Husband filed a motion asking the trial court to designate
a specific location where the parties would exchange their children for timesharing.
Former Husband alleged that the parenting plan did not specify the location of the parties’
exchange of their minor children, and due to a recent incident, he requested that the court
enter an order directing that all future timesharing exchanges occur at the Family Ties, a
facility that provides a monitored program for such exchanges. Former Husband set his
motion for hearing, providing proper notice to Former Wife.
For reasons irrelevant to the resolution of this appeal, Former Wife failed to attend
this hearing. The trial court thereafter entered the order on appeal, in which the court,
upon its own motion, awarded Former Husband sole timesharing of the parties’ children
and limited Former Wife’s contact with the children to “as allowed” by Former Husband.
The court also abated Former Husband’s monthly child support obligation. Following the
trial court’s denial of Former Wife’s motion for rehearing, this appeal ensued.
Former Wife argues that the trial court’s order violated her due process rights by
significantly modifying her timesharing with her children when the only matter scheduled
to be addressed at the hearing was the location for the timesharing exchange. We agree.
“It is well settled that an order adjudicating issues not presented by the pleadings, noticed
to the parties, or litigated below denies fundamental due process.” Golden v. Bass, 194
So. 3d 1080, 1082 (Fla. 1st DCA 2016) (quoting Neumann v. Neumann, 857 So. 2d 372,
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373 (Fla. 1st DCA 2003)). “A court violates due process when it ‘modifies visitation,
changes primary residence, or alters child support when the notice of hearing does not
include this issue.’” Id. (quoting Moody v. Moody, 721 So. 2d 731, 734 (Fla. 1st DCA
1998)). Furthermore, no emergency was alleged by Former Husband in his motion
necessitating the action taken by the trial court.
Accordingly, we reverse the order on appeal and remand this case to the trial court
for further proceedings.
REVERSED and REMANDED.
TORPY and EDWARDS, JJ., concur.
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