NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
D.A.D., )
)
Appellant, )
)
v. ) Case No. 2D15-3220
)
J.S., )
)
Appellee. )
)
Opinion filed June 10, 2016.
Appeal from the Circuit Court for Lee
County; R. Thomas Corbin, Judge.
Robert L. Donald of Law Office of Robert L.
Donald, Fort Myers, for Appellant.
Joseph P. Hoffman of Law Office of Joseph
P. Hoffman, Fort Myers, for Appellee.
LUCAS, Judge.
D.A.D., the mother of a minor child, appeals a final judgment and
amended final judgment entered on a modification petition filed by J.S., the child's
father.1 The circuit court's modification of the parties' paternity judgment from Texas
was both extensive and unusual in many respects.2 We reverse on the ground that the
circuit court improperly modified a domesticated paternity judgment in ways that were
not pleaded in the modification petition.
We need not recount the lengthy, contentious, and procedurally
convoluted history of these parents' disputes. All agree that shortly after the parties'
relocation to Florida from Texas, a Texas final judgment establishing paternity,
timesharing, a timesharing exchange location in Florida, and an injunction against the
father was properly domesticated. See § 55.501-.503, Fla. Stat. (2015); Barr v. Barr,
724 So. 2d 1200, 1202 (Fla. 1st DCA 1998) ("Once a foreign judgment is domesticated
in Florida, it is to be treated as though it was always a Florida decree . . . ."). Although
there was some argument over whether the injunction provision in the Texas judgment
was meant to be contingent on whether the mother's then-pending domestic violence
petition in Florida would be granted,3 that issue was never pleaded, nor was the
injunction even mentioned, anywhere within the father's petition to modify the Texas
1
For ease of reference, in this opinion we will refer to D.A.D. as "the
mother" and J.S. as "the father."
2
The "amended final judgment" rendered on rehearing reads more like a
clarification of the court's prior final judgment on the father's modification petition; and
both judgments include findings that appear to be an improper attempt at appellate
review of the Texas court's judgment. In fairness, though, it is apparent from the limited
record we have that the circuit judge was endeavoring to bring some sense of order to
the bevy of motions, domestication petitions, modification petitions, and domestic
violence petitions the parties filed following their move to Florida.
3
Her Florida petition was denied after a return hearing, as was the father's
petition for an injunction against the mother. The Texas injunction, however, was clear
and unqualified. It made no mention whatsoever of any ancillary proceedings, either in
Texas or in Florida.
-2-
judgment. The only issue the modification petition framed for adjudication was the
father's request to alter the place of exchange for the minor child to a Lee County police
station closer to where the parties resided or to the child's school.4 Nevertheless, the
amended final judgment made several timesharing and visitation modifications and
decreed that the Texas injunction was "void."
A petition to modify is a pleading that serves to delineate and describe the
relief a petitioner requests from the family court. See Fla. Fam. L. R. P. 12.110; Fla. R.
Civ. P. 1.110; Guntner v. Jennings, 980 So. 2d 1185, 1186 (Fla. 5th DCA 2008) ("A
party initiates a proceeding to modify a final judgment in a family law matter through a
supplemental petition."). As we explained in Brady v. Jones, 491 So. 2d 1272, 1273
(Fla. 2d DCA 1986):
A court cannot modify any judgment unless the issue of
modification is properly presented to it by appropriate
proceedings and each party is given an opportunity to be
heard on the issue. Cortina v. Cortina,
98 So. 2d 334 (Fla.
1957). A judgment entered upon a matter entirely outside of
the issues made by the pleadings cannot stand, and where
an issue is neither presented by the pleadings, nor litigated
by the parties, a decree adjudicating such issue is, at least,
voidable on appeal. Cortina; see Fla. R. Civ. P. 1.190(b).
"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." Miller v.
Miller,
959 So. 2d 421, 424 (Fla. 2d DCA 2007) (quoting Neumann v. Neumann,
857
So. 2d 372, 373 (Fla. 1st DCA 2003)).
4
We do not have the benefit of either a trial transcript or a transcript from
the rehearing motion in our record; and neither party has argued that any issue outside
of the pleadings was tried by consent. Cf. Fla. Fam. L. R. P. 12.190; Fla. R. Civ. P.
1.190(b).
-3-
From the record we have in the case before us, the only issue presented
to the circuit court in the father's modification petition was the issue of modifying the
exchange location for timesharing. Finding no error in the court's resolution of that
properly pleaded issue, we affirm the court's judgment changing the exchange location.
However, we must reverse the circuit court's judgment insofar as it modified the
domesticated Texas judgment on issues that were not pleaded within the father's
modification petition and were not otherwise stipulated to by the parties before the court.
See Miller, 959 So. 2d at 424; Brady,
491 So. 2d at 1273.
Affirmed in part, reversed in part, and remanded.
VILLANTI, C.J., and SILBERMAN, J., Concur.
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