Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Issues that are ruled on at a hearing in a Florida family law hearing must be requested in the pleadings filed by the parties or tried by consent. To determine whether an issue was tried by consent, the following factors are considered: “(1) ‘whether there was 'a fair opportunity to defend' the issue’ and (2) ‘whether the defending party 'could have offered additional evidence' if the issue had been included in the operative pleading or motion." Campana v. Trabold, 2D2024-0216 (Fla. 2d DCA December 18, 2024).
In this paternity case, the parties jointly owned a home in Florida and had children. The mother unilaterally moved to Ohio with the children after accusing the father of domestic violence. The father filed a petition for paternity and requested a pick-up order. At a hearing on the motion for pick-up order, the father stipulated at the outset that he would agree to a no-contact order. The mother agreed to this “without limitation to other remedies”. The court then asked the mother if she wanted to live in the residence she previously shared with the father in Florida and she stated she did not. The court went on to grant the pick-up order at which point the mother objected and stated she would be moving back to Florida with her kids if the order was granted, but she had nowhere to live. The mother objected that in essence, the court was awarding exclusive use and possession of the residence to the father without him requesting this relief. The mother appealed.
The appellate court found the mother did not try the issues of exclusive use and possession of the home or a no-contact order by consent. It reasoned “The Father specifically argues that after he announced during opening statements that he would agree to the entry of a no contact order, the Mother had the entire proceeding to argue against such an order and yet when the court asked if she objected to a no contact order, she did not do so. His argument here fails for two reasons. First, although the Father may have mentioned the no contact order during opening statements, there was no issue to defend at that point. The purpose of the hearing was to determine whether the children were to be returned and to set up a timesharing schedule if so. The Mother's stance from the beginning of the hearing was that the children should remain with her in Ohio. Thus, the Father's mention at the beginning of the hearing that he would agree to a no contact order did not present an issue where the Mother was proceeding as if she would remain in Ohio with the children.”
The court concluded “Second, the Father's argument fails because, despite his claim that the Mother failed to object to the no contact order, the record is clear that once she became aware of the effect of the no contact order, and therefore the issue, she did in fact object. To be clear, despite the trial court's repeated reliance on the Mother's initial testimony to conclude that she did not wish to live in the jointly owned home, when the trial court ruled that the children were to be returned, the Mother responded: ‘If my children are being forced to move back to Florida, I am going to live with my children. I am not going to leave them. I will not live separately from them. I would like to live in my home with my children if my children are to have to move back to Florida.’ Thereafter, when the trial court pointed out that the parties agreed to a no contact order and that they could not directly exchange the children, the Mother expressed that such would be unworkable because there would be an issue if she wanted to go into the home and the Father was there. Thus, the Mother did not consent to the no contact order.”
The case was reversed and remanded for further proceedings. Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.