Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What if a party is unable to attend a hearing in his or her Florida family law case? The usual course of action is to file a motion for continuance, stating the reasons why the party cannot attend and requesting a different hearing date. The case Pares v. Soriano, 3D18-915 (Fla. 3d DCA June 10, 2020) is one which illustrates this process.
The parties were involved in post-judgment litigation after their divorce surrounding the proceeds of the sale of the marital residence. After the former wife had to be evicted from the marital home, the home was sold and the parties disagreed as to who should get what percentage of the sale proceeds. The former husband claimed he was owed credit for certain payments made toward the home while the former wife lived there and was ordered to pay said expenses. The former husband also claimed credits toward expenses he paid to have the former wife evicted.
A hearing was set on the motion regarding the credits. The former wife filed a motion for continuance, attaching medical documents indicating she had been excused from work and was admitted to the hospital for headaches. The former wife asked to appear at the hearing by phone. Despite this, the hearing was held in the former wife’s absence and the court ruled that the former husband should receive a majority of the sale proceeds. The former wife appealed, arguing it was error to disregard her request for continuance or to appear by phone.
The appellate court agreed with the former wife and reversed. The court held “The trial court’s disregard of allegations made in good faith coupled with supporting, unrebutted evidence here was an abuse of discretion, especially as the former wife alternatively asked to attend telephonically. [. . .] [B]ecause the former wife here was effectively prevented from presenting her case, ‘a judgment or order based on such one-sided presentation is fundamentally flawed.’ Accordingly, we reverse the order distributing the sale proceeds, and remand for rehearing of the former husband’s motion.”
Preserving and protecting your procedural rights throughout your Florida family law case is as important as presenting the right evidence on your behalf. Contact a Miami family law attorney for help with your case.