Third District Court of Appeal
State of Florida
Opinion filed April 19, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1476
Lower Tribunal No. 19-11545
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Michelle Saenz,
Appellant,
vs.
Roberto Sanchez, III,
Appellee.
An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, David Young, Judge.
Michelle Saenz, in proper person.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for
appellee.
Before LOGUE, MILLER and BOKOR, JJ.
BOKOR, J.
Michelle Saenz, the mother of three minor children, appeals orders
modifying a parenting plan after an emergency hearing, claiming a lack of
due process based on the rushed nature of the hearings and a lack of notice
of the issues ultimately adjudicated by the trial court. The subject orders
suspend Saenz’s timesharing indefinitely and prevent her from having any
contact with all three children; indefinitely grant the father, Roberto Sanchez,
uninterrupted timesharing with the two younger children, K.A.S. and J.E.S.;
direct the oldest child, B.M.S., to be immediately enrolled in a military school;
and direct Sanchez and the children’s Guardian Ad Litem to file police
reports against K.A.S. and B.M.S. due to an incident in which the children
attacked Sanchez. After a review of the record, we agree with Saenz.
Because neither parent requested the remedies ultimately ordered by
the trial court nor noticed the underlying issues for hearing, the hearing—set
only as a case management conference—and resulting orders violated
Saenz’s right to due process. “It is well-settled that a trial court violates due
process and commits reversible error when it grants a party relief that the
party did not request.” Booth v. Hicks,
301 So. 3d 369, 370 (Fla. 2d DCA
2020); see also Orozco v. Rodriguez-Amadeo,
321 So. 3d 918, 919 (Fla. 3d
DCA 2021) (“[D]ue process requires . . . . affording parties a meaningful
opportunity to be heard, as well as the right . . . to be apprised of all the
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evidence upon which an issue is to be decided, with the right to examine,
explain or rebut such evidence.” (quotations omitted)); Logreira v. Logreira,
322 So. 3d 155, 159 (Fla. 3d DCA 2021) (holding that order giving father
sole parental responsibility, concealing children’s medical records, and
requiring conditional law enforcement assistance was improper where
neither party requested such relief).1
While we vacate the orders on appeal for lack of due process, the
parties shall maintain the status quo, including B.M.S.’s enrollment and
attendance in military school, until a new hearing can be conducted. The
trial court shall conduct such hearing on an expedited basis, no sooner than
1
We review an order modifying a parenting plan for abuse of discretion. See
e.g., C.N. v. I.G.C.,
291 So. 3d 204, 206 (Fla. 5th DCA 2020). However,
except in an emergency situation, such as child endangerment, threat of
harm, or imminent removal from the court’s jurisdiction, none of which are
implicated here, basic concepts of due process require fair notice and an
opportunity to be heard. See Moody v. Moody,
721 So. 2d 731, 734 (Fla. 1st
DCA 1998) (reversing where “the notice for hearing stated that the court
would entertain a motion for contempt” and “[n]either the husband's nor the
wife's contempt motions requested a change of custody or modification of
child support”); see also Loudermilk v. Loudermilk,
693 So. 2d 666, 668 (Fla.
2d DCA 1997) (reversing modifications entered after emergency petition
because mother did not receive notice until the day before the hearing and
father “did not establish the type of emergency which would warrant an ex
parte emergency order temporarily modifying child custody”); Golden v.
Bass,
194 So. 3d 1080, 1082 (Fla. 1st DCA 2016) (reversing temporary
modification giving father custody of children where “the notices of hearing
did not indicate the court would be entertaining a complete transposition of
timesharing, nor was a temporary change remedy included in any document
pending before the court (noticed for hearing or not)”).
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7 days and no later than 21 days from the issuance of this opinion, and no
motion for reconsideration or rehearing shall toll these deadlines.
Orders vacated; reversed and remanded with instructions.
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