Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

There are rules of procedure in Florida family law which inform all parties how to move a case forward. Comprehension of these rules includes knowledge of the nuances and clear directives in each rule. In the case Wiendl v. Wiendl, 2D19-3325 (Fla. 2d DCA July 8, 2020), the appellate court was required to analyze the plain meaning of a certain rule of procedure when the former husband challenged an order entered against him.

As part of the parties’ divorce, the former husband was required to pay child support to the former wife. The former wife filed a motion for contempt, alleging the former husband failed to pay support as ordered. After a hearing, the hearing officer found that former husband owed child support exceeding $60,000 and set a purge payment of $4,000.00. The former husband then sent an email to the trial judge’s assistant stating “Attached please find the MOTIONS TO VACATE THE ORDER OF THE COURT DATED JULY 9, 2019 WHICH RATIFIED THE REPORT OF THE CHILD SUPPORT HEARING OFFICE[R] DATED JULY 5, 2019 PURSUANT TO FLA. FAM. L. R. P. 12.491(F). Pursuant to Rule 12.491(f) a motion to vacate shall be heard within 10 days after the movant applies for a hearing on the motion. Please advise.” The trial court, without a hearing, denied the former husband’s request to vacate the order. The former husband appealed.

The appellate court found it was a violation of the former husband’s due process rights to deny his request without a hearing. The court held “This verbiage was sufficient to trigger the plain language of the rule that requires the trial court to hold a hearing on the motion within ten days if ‘the movant applies for hearing on the motion.’ See Fla. Fam. L. R. P. 12.491(f). Nothing in the rule explains how a movant is to ‘apply’ for a hearing, but there would be no reason for the Former Husband's email to the judge's judicial assistant to reference subsection (f) of the rule and ask ‘[p]lease advise’ if he was not seeking a hearing on the motion. The Former Wife argues on appeal that ‘there is no evidence that the Former Husband or his counsel ever followed up with the court to set a hearing as is their responsibility to do.’ But the rule does not require a certain number of attempts before it can be said that the movant has applied for a hearing. While, of course, it would be best practices to follow up and confirm that a hearing had been set, the plain language of the rule simply does not require such. And since the rule uses the word ‘shall,’ the hearing was mandatory once counsel referenced the rule and asked, ‘Please advise.’”

To protect your due process rights, it may be best to hire a Florida family law attorney to assist you. Schedule a consultation to learn how the law may be applied to your case.