Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Due process in a Florida family law case refers to the right of each party to fully participate in the proceeding with notice and and opportunity to be heard. Due process is an important to ensure each party has a fair and meaningful opportunity to participate in the proceedings. This was an issue in the case Rodriguez v. Rodriguez, 3D23-1817 (Fla. 3d DCA August 21, 2024).
The mother appealed a default final judgment of divorce which granted the father sole parental responsibility and payment of child support. The mother did not file a motion with the trial court alleging a lack of due process, but argued this for the first time on appeal. The father argued the mother waived this argument by not asserting it on the trial level.
The appellate court disagreed, holding “Contrary to the father’s contention, the denial of due process constitutes fundamental error, which can be raised for the first time on appeal.” The appellate court concluded “Nonetheless, in this case, the undeveloped record compels affirmance. We do so, however, without prejudice to the mother’s ability to file a timely and appropriate motion pursuant to Florida Family Law Rule of Procedure 12.540(b) in the lower tribunal seeking to vacate the final order and convene an evidentiary hearing on her claim that she did not receive notice.”
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