Nadine Ann Bisel v. Christopher M. Bisel

165 So. 3d 833, 2015 Fla. App. LEXIS 8472, 2015 WL 3486717

• Court: District Court of Appeal of Florida
• Decided: June 3, 2015
• Docket: 4D14-1611
• Status: Published

Opinion

STEVENSON, J.

Former wife appeals an order denying her amended motion to set aside default or default final judgment and motion for relief from judgment. We agree with the majority of former wife’s arguments concerning the insufficiency of the notice of hearing mailed to her; thus, we reverse and remand for further proceedings.

The notice of hearing has several problems, the first of which is that the description failed to notify former wife that the trial court would consider and rule upon her supplemental petition for upward modification of child support. 1 See Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1252 (Fla.2008) (“ ‘Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice,’ and ‘[t]o allow a court to rule on a matter without proper pleadings and notice is violative of a party’s due process rights.’ ” (quoting Carroll & Assocs., P.A. v. Galindo, 864 So.2d 24, 28-29 (Fla. 3d DCA 2003))). Secondly, former wife did not receive timely notice of the hearing as it related to her supplemental petition. 2 See Fla. R. Civ. P. 1.440(c); see also Dep’t of Revenue v. Marcovitch, 765 So.2d 944, 944-45 (Fla. 5th DCA 2000) (reversing order denying motion for rehearing as the evidence established the mother received notice of the final hearing on the father’s petition for modification of child support only twelve days before the hearing; the Fifth District cited to the father’s failure to comply with rule 1.440 as its basis for reversal). Finally, pursuant to Florida Family Law Rule of Proce- • dure 12.440(a), the trial court — not former husband — “was required to enter an order setting the action for trial.” Teelucksingh v. Teelucksingh, 21 So.3d 37, 37 (Fla. 2d DCA 2009).

Based on the forgoing, we find the trial court erred in denying former wife’s motion to set aside default final judgment and for relief from judgment. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

CIKLIN and KLINGENSMITH, JJ„ concur.

1 . The notice of hearing contained the following description: "FINAL HEARING FOR DEFAULT FINAL JUDGMENT.”

2 . As it relates to the final default judgment requested by former husband, former wife received timely notice pursuant to Florida Family Law Rule of Procedure 12.440(a); nevertheless, the insufficiencies of the notice render moot compliance with rule 12.440(a)’s time requirement.