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

What does it mean when an issue is “tried by consent” in a Florida family law case? This means that although an issue was not brought up in a motion or pleading, the parties agreed for it to be determined at a hearing because they did not object when the issue was discussed at the hearing. Trial by consent was one matter covered in the case Nasef v. Eddy, 4D22-3046 (Fla. 4th DCA July 26, 2023).

In this paternity case, the mother was awarded attorney’s fees and costs, and the father was held in contempt, resulting in the mother being awarded make-up time-sharing. The father appealed on the basis that there were no findings as to the reasonableness of the mother’s attorney’s fees and that contempt was not an issue pled before the hearing.

The appellate court agreed with the father on these points. With regard to the fee award, it held “Although the trial court made findings regarding the number of hours expended on the case by the mother’s counsel, it did not make any findings as to whether the hours expended were reasonable. This was error.” Turning to the issue of trial by consent, the court held “Second, in its order denying the father’s modification petition, the trial court found the father in contempt and awarded the mother makeup timesharing. This was error, as the issue of the father’s contempt was not before the trial court. [internal citations omitted]. The mother contends that the father’s contempt was tried by implied consent. She relies on the father’s failure to object to certain testimony related to the father’s allegedly contemptuous conduct. But the testimony was relevant to matters properly before the court, and thus, the father’s failure to object to such testimony did not constitute consent to try the contempt issue.”

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