Haywood v. Bacon

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
MICHELE HAYWOOD,
F/K/A MICHELE BACON,
Appellant,
v. Case No. 5D17-1899
RICHARD BACON,
Appellee.
________________________________/
Opinion filed June 8, 2018
Appeal from the Circuit Court
for Orange County,
Margaret H. Schreiber, Judge.
Tanya M. Plaut, of Law Office of Tanya M.
Plaut, Edgewater, for Appellant.
No Appearance for Appellee.
PER CURIAM.
Michele Haywood F/K/A Michele Bacon (Mother) appeals the supplemental final
judgment modifying child visitation and child support1 as set forth in the final judgment
that dissolved her marriage to Richard Bacon (Father). Because the trial court failed to
1 Mother does not dispute the trial court's findings and rulings as to child support.
Accordingly, those figures should not be revisited unless the trial court determines after
further proceedings that it should deny Father's petition for modification.
allow Mother to complete the presentation of her case at the evidentiary hearing, we
reverse.
The parties' marriage was dissolved on January 24, 2012. They have three
children: D.B., Z.B., and C.B. D.B. reached the age of majority during the proceedings.
In the original parenting plan, the parties agreed that the minor children would reside
primarily with Mother and would visit Father on alternate weekends, half of Winter Break,
Spring Break, and seven weeks during Summer Break. Despite the agreement, D.B.
resided primarily with Father.
At some point, D.B. returned to live with Mother. Soon thereafter, Z.B. and C.B.
expressed a desire to live primarily with Father. Father filed a supplemental petition to
modify the final judgment of dissolution alleging that a substantial change in
circumstances had occurred since the entry of final judgment. His allegations were based
primarily on serious behavioral issues and the minor children's performance at school.
Mother filed an answer and counter-petition, denying Father's allegations. A Guardian
Ad Litem (GAL) was appointed to represent the minor children. After conducting an
investigation and meeting with all of the parties involved, the GAL filed her report
recommending that the children reside primarily with Father.
Thereafter, the parties, with the assistance of the appointed GAL, entered into an
agreement modifying the parenting plan by agreeing that the two minor children should
reside primarily with Father. The agreement resolved the parenting plan issues presented
in the parties' respective petitions for modification.
Although the minor children, ages fifteen and seventeen, initially expressed a
desire to reside with Father, they changed their minds after their parents agreed to the
2
new parenting plan.2 As a result, Mother, with the assistance of new counsel, filed a
motion to set aside the new parenting plan, arguing, inter alia, that she was coerced into
agreeing to the new parenting plan by her former counsel and the GAL. Following an
evidentiary hearing, the trial court denied her motion. However, because Mother no
longer believed that the new parenting plan was in the children's best interest, the trial
court conducted an evidentiary hearing to make that determination.
At the hearing, the trial court terminated the proceedings during Mother’s cross-
examination of the GAL and failed to permit her to present rebuttal evidence. This was
error. Entering a final order without allowing a party to complete presenting evidence
generally constitutes a denial of due process. Bielling v. Bielling, 188 So. 3d 980, 981
(Fla. 1st DCA 2016) (citing Julia v. Julia, 146 So. 3d 516, 520 (Fla. 4th DCA 2014) ("Even
if [a] trial court believes that recalling . . . witnesses would not make any further impression
on the court, it [is] still required to allow the [party] to present [his/her] case fully . . . ."));
Cole v. Cole, 159 So. 3d 124, 125–26 (Fla. 3d DCA 2013), as corrected (Dec. 18, 2013)
(reiterating that the "right to be heard includes the right to 'introduce evidence at a
meaningful time and in a meaningful manner.'" (quoting Baron v. Baron, 941 So. 2d 1233,
1236 (Fla. 2d DCA 2006))); Miller v. Miller, 671 So. 2d 849, 851 (Fla. 5th DCA 1996)
(finding trial court erred when it prohibited parties from cross-examining GAL during
modification proceeding). Thus, we reverse the supplemental final judgment of
modification as to the parenting plan and remand for further proceedings.3 In all other
respects, we affirm.
2Despite the minor children's change of heart, the GAL filed a second report
maintaining her original position.
3
AFFIRM, in part; REVERSE, in part; and REMAND for further proceedings.
ORFINGER, BERGER and EISNAUGLE, JJ., concur.
3 On remand, we remind the trial court that although it may direct both sides to
submit proposed final judgments, it “may not adopt the judgment verbatim, blindly, or
without making in-court findings." Rykiel v. Rykiel, 795 So. 2d 90, 92 (Fla. 5th DCA 2000),
as amended on reh'g (Feb. 9, 2001), quashed on other grounds, 838 So. 2d 508 (Fla.
2003); accord West v. West, 228 So. 3d 727, 728–29 (Fla. 5th DCA 2017) ([An]
"appearance of impropriety exists when the trial judge adopts verbatim one party's one-
sided final judgment, especially where the judge did not orally announce findings or
rulings during or at the end of trial.").
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