Posted by Nydia Streets of Streets Law in Florida Child Custody

If a party refuses to appear at a hearing in a Florida family law case, can their consent to have matters heard by the court in their absence by implied? Due process is an important and required part of any family law case, and if a party is not on notice about what will be decided at a hearing, that party may have a claim for violation of due process. This was an issue in the case Athienitis v. Makris, 2D21-2376 (Fla. 2d DCA September 16, 2022).

The parties were involved in what appeared to be post-divorce acrimonious litigation. Motions for contempt and psychological evaluations were filed. The parenting coordinator assigned to the case asked to be discharged. Thereafter, a hearing was set at which the court indicated it would consider certain issues. The issue of responsibility for fees of the parenting coordinator was not included in the issues listed by the court for the hearing.

At the hearing, the guardian ad litem in the case was questioned about why the parenting coordinator was discharged. The former wife objected to this information as “stale” and the former husband’s counsel countered that it was relevant to the issue of temporary attorney’s fees which was an issue at the hearing. The former wife cross-examined the guardian ad litem but did not mention the parenting coordinator’s fees. After the court made a ruling unfavorable to the former wife on another issue, the former wife intentionally exited the zoom hearing and eventually did not return. In her absence, the court entered an order which in part ordered her to reimburse the former husband for the parenting coordinator’s fees. The former wife appealed.

The appellate court reversed the apportionment of fees for the parenting coordinator. It held “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.”

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