Franklin Butler v. Jessica Cabassa

186 So. 3d 1114, 2016 Fla. App. LEXIS 3643, 2016 WL 892652

• Court: District Court of Appeal of Florida
• Decided: March 9, 2016
• Docket: 4D15-2984
• Status: Published

Opinion

TAYLOR, J.

We reverse the trial court’s order denying appellant’s motion to vacate the amended final judgment of injunction for protection against domestic violence. The original judgment entered in this case made no provision for a change; in time-sharing with the minor child.- However, without notice to appellant or' any pleadings to amend the judgment for such relief, the trial court sua sponte entered an amended judgment that awarded one-hundred percent timesharing to appellee. Before the amended judgment was entered, appellant was the primary residential parent for the child.

Appellant’s motion to "vacate stated a preliminary basis for relief by'alleging that the amended judgment should be vacated as void because it was entered without notice or an opportunity to be heard. See Rodriguez v. Santana, 76 So.3d 1035, 1037 (Fla. 4th DCA 2011) (holding in a paternity case that-the trial court erred in summarily denying the mother’s motion for relief from judgment where the trial court violated her due process right to notice and an opportunity to be heard before rendering judgment).

At the hearing on appellant’s motion to vacate the amended final judgment, the trial court stated that the amended judgment merely corrected a “clerical error.” However, the transcript of the hearing leading up to the original judgment shows that the issue of custody was not argued or ruled upon at the hearing. Because the trial court erred in summarily denying appellant’s motion to vacate the amended final judgment, we reverse the order and remand for further proceedings.

Reversed and Remanded.

WÁRNE and GROSS, JJ., concur.