Nadine Ann Bisel v. Christopher M. Bisel , 2015 Fla. App. LEXIS 8472 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NADINE ANN BISEL,
Appellant,
v.
CHRISTOPHER M. BISEL,
Appellee.
No. 4D14-1611
[June 3, 2015]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Laura M. Watson, Judge; L.T. Case No.
FMCE 10-003847.
Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.
Kim L. Picazio of the Law Office of Kim L. Picazio, P.A., Fort Lauderdale,
for appellee.
STEVENSON, J.
Former wife appeals an order denying her amended motion to set aside
default or default final judgment and motion for relief from judgment. We
agree with the majority of former wife’s arguments concerning the
insufficiency of the notice of hearing mailed to her; thus, we reverse and
remand for further proceedings.
The notice of hearing has several problems, the first of which is that
the description failed to notify former wife that the trial court would
consider and rule upon her supplemental petition for upward modification
of child support.1 See Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986
So. 2d 1244, 1252 (Fla. 2008) (“‘Florida law clearly holds that a trial court
lacks jurisdiction to hear and to determine matters which are not the
subject of proper pleading and notice,’ and ‘[t]o allow a court to rule on a
matter without proper pleadings and notice is violative of a party’s due
process rights.’” (quoting Carroll & Assocs., P.A. v. Galindo, 864 So. 2d 24,
1The notice of hearing contained the following description: “FINAL HEARING
FOR DEFAULT FINAL JUDGMENT.”
28–29 (Fla. 3d DCA 2003))). Secondly, former wife did not receive timely
notice of the hearing as it related to her supplemental petition.2 See Fla.
R. Civ. P. 1.440(c); see also Dep’t of Revenue v. Marcovitch, 765 So. 2d 944,
944–45 (Fla. 5th DCA 2000) (reversing order denying motion for rehearing
as the evidence established the mother received notice of the final hearing
on the father’s petition for modification of child support only twelve days
before the hearing; the Fifth District cited to the father’s failure to comply
with rule 1.440 as its basis for reversal). Finally, pursuant to Florida
Family Law Rule of Procedure 12.440(a), the trial court—not former
husband—“was required to enter an order setting the action for trial.”
Teelucksingh v. Teelucksingh, 21 So. 3d 37, 37 (Fla. 2d DCA 2009).
Based on the forgoing, we find the trial court erred in denying former
wife’s motion to set aside default final judgment and for relief from
judgment. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded for further proceedings.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2As it relates to the final default judgment requested by former husband, former
wife received timely notice pursuant to Florida Family Law Rule of Procedure
12.440(a); nevertheless, the insufficiencies of the notice render moot compliance
with rule 12.440(a)’s time requirement.
2