DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ALEXIA ATHIENITIS, Ph.D.,
Appellant,
v.
IPERMACHOS MAKRIS,
Appellee.
No. 2D21-2376
September 16, 2022
Appeal from the Circuit Court for Hillsborough County; Kelly A.
Ayers, Judge.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
Laurie K. Sweet of The Law Offices of Yeazell and Sweet, Clearwater,
for Appellee.
LaROSE, Judge.
Alexia Athienitis, Ph.D. (Former Wife), appeals the final order
enforcing the final judgment of dissolution of her marriage to
Ipermachos Makris (Former Husband) and the order of referral to
parenting coordinator, Dr. Jeremy Gaies. We have jurisdiction. See
Fla. R. App. P. 9.030(b)(1)(A). The trial court erred in granting relief
on an issue not noticed for hearing. Thus, we reverse that portion
of the order awarding Former Husband a reapportionment of Dr.
Gaies' fees. We affirm the order as to the remaining issues raised
on appeal without further comment.
I. Background
The parties married in 2002; they have two minor children. In
February 2016, the trial court entered a final judgment dissolving
the marriage. To assist in resolving other issues, the trial court
appointed Dr. Gaies as the parties' parenting coordinator and
appointed a guardian ad litem for the children. Dr. Gaies served as
parenting coordinator until the trial court granted his request for
discharge in March 2019. The trial court reserved the possibility of
reapportioning Dr. Gaies' fees and costs if either party inequitably
used or abused the parenting coordination process.
The parties filed many postdissolution filings, including
motions for contempt, enforcement of the final dissolution
judgment, and Former Wife's psychological evaluation. The trial
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court held a case management conference on May 14, 2021.1 The
trial court could not move forward on nonfinancial child-related
issues pending Former Wife's appeal of the court ordered
psychological evaluation. However, the trial court scheduled a
hearing for June 2021 to address financial issues regarding:
a. tuition costs;
b. medical/dental/vision insurance for the minor
children;
c. uncovered medical expenses for the minor children;
d. costs of extracurricular activities for the minor
children;
e. temporary attorney's fees and costs.
When that hearing commenced on Zoom, the trial court
confirmed that the only issues to be heard were those listed above;
no issue related to Dr. Gaies' fees was on the list. Nevertheless, the
guardian ad litem started to testify about the reasons Dr. Gaies
sought discharge as parenting coordinator. Former Wife objected to
the testimony, claiming that it addressed "stale" issues. Former
Husband's counsel explained that "[t]he questioning pertain[ed] to
our request for temporary attorney's fees, and that is why I am
asking the question in terms of [Former Wife's] cooperation with Dr.
1 There is no transcript of the hearing.
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Gaies." Former Husband's claim for attorney's fees was based, in
part, on Former Wife's allegedly needless litigation. The trial court
overruled Former Wife's objection. Thus, the guardian ad litem
testified that Dr. Gaies discontinued his services with the parties
because Former Wife "was not willing to move forward in the
process," "was not being compliant with the process," "blocked
additional activity," and "refused to make a payment." Former Wife
cross-examined the guardian ad litem regarding the issues noticed
for the hearing; she did not ask about Dr. Gaies.
The trial court stated that it was going to order Former Wife to
pay Former Husband her unpaid share of the children's school
tuition. At that point, Former Wife disconnected from the Zoom
hearing. The trial court remarked that it was "under the impression
that this might not be an Internet lag." Former Wife returned nine
minutes later. The trial court noted that it would not change its
ruling on the school tuition issue. Former Wife disconnected,
again, and did not return. The trial court stated:
I think the doctor made it clear when she returned from
the last Zoom hearing, it wasn't that she was
disconnected, that she intentionally disconnected. So I
am under the impression that she did so right now
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because she is not happy with my ruling, so we're going
to continue on.
The trial court moved on to the issues of uncovered medical
expenses and expenses for extracurricular activities. Former
Husband testified that he was also seeking reimbursement for Dr.
Gaies' fees. His counsel asked the trial court to take judicial notice
of the referral order to reallocate the parties' obligations for fees.
The trial court found that Former Wife "misused the parenting
coordination process, and, as a result, reallocation of the parenting
coordinator fees are [sic] warranted." It ordered Former Wife to
reimburse Former Husband $3,080.50 for Dr. Gaies' fees, which
included Former Wife's outstanding balance that Former Husband
previously paid.
II. Discussion
Former Wife argues that the trial court violated her due
process rights by reapportioning Dr. Gaies' fees because "the issue
was not noticed for hearing." Former Husband contends that the
reapportionment issue was tried by consent where Former Wife
cross-examined the guardian ad litem and failed to object to the
issue being heard.
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"We review a claim of deprivation of procedural due process de
novo." Pena v. Rodriguez,
273 So. 3d 237, 240 (Fla. 3d DCA 2019)
(citing A.B. v. Fla. Dep't of Child. & Fam. Servs.,
901 So. 2d 324, 326
(Fla. 3d DCA 2005)).
"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." Austin v. Austin,
120 So. 3d 669,
675 (Fla. 1st DCA 2013) (quoting Norberg v. Norberg,
79 So. 3d 887,
889 (Fla. 4th DCA 2012)). An issue may be "tried by implied
consent" where a party "raises the issue and the other party fails to
object at the hearing." Clark v. Clark,
147 So. 3d 655, 658 (Fla. 5th
DCA 2014). However, "[u]npled issues tried when a party does not
appear are not tried by consent, but in absentia."
Id. Additionally,
"the failure to object cannot be taken as implied consent to try
unpled issues when there is no occasion for such party to object
that such evidence is irrelevant to the issues being tried." Bilow v.
Benoit,
519 So. 2d 1114, 1116 (Fla. 1st DCA 1988) (first citing
Wassil v. Gilmour,
465 So. 2d 566 (Fla. 3d DCA 1985); and then
citing Dysart v. Hunt,
383 So. 2d 259 (Fla. 3d DCA 1980)).
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We cannot conclude that the reapportionment issue was tried
by express or implied consent. The trial court and parties did not
include the reapportionment issue on the list of issues noticed for
the June hearing. When Former Wife objected to the guardian ad
litem's testimony about Dr. Gaies, Former Husband's counsel
explained that the testimony was relevant to the noticed issue of
attorney's fees. Thus, Former Wife's failure to specifically object to
the testimony as irrelevant to any of the noticed issues and her
cross-examination of the guardian ad litem cannot be construed as
implied consent. See
id. ("The questions on cross-examination were
also relevant to other issues that had been pled, and thus, Bilow's
non-objection cannot be construed as express or implied consent to
trial of the unalleged forfeiture defense.").
Former Husband did not claim that the guardian ad litem's
testimony regarded the reapportionment of Dr. Gaies' fees when
Former Wife was present at the hearing. Former Husband first
stated that he was seeking the reapportionment of Dr. Gaies' fees—
an issue separate from his attorney's fees—at the hearing during
his testimony, after Former Wife had left the Zoom hearing. Former
Wife's absence does not constitute implied consent to an issue not
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noticed for the hearing. See Clark, 147 So. 3d at 658 ("Wife
suggests that Husband's failure to attend the hearing is tantamount
to consenting to amending the complaint in any way but offers no
authority for this proposition. Unpled issues tried when a party
does not appear are not tried by consent, but in absentia.").
Accordingly, we reverse the reapportionment of Dr. Gaies' fees
and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and LABRIT, JJ., Concur.
Opinion subject to revision prior to official publication.
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