NICHOLAS A. CASINA vs DULCE CASINA

• Court: District Court of Appeal of Florida
• Decided: November 14, 2022
• Docket: 22-0482
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

NICHOLAS A. CASINA,

Appellant,

v. Case No. 5D22-482 LT Case No. 2020-DR-13834-X

DULCE CASINA,

Appellee.

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Opinion filed November 14, 2022

Appeal from the Circuit Court for Brevard County, Christina Serrano, Judge.

Lindsey M. Sharp, of Sharp & Dye Attorneys, Indialantic, for Appellant.

Charles A. Kohler, Satellite Beach, for Appellee.

EVANDER, J.

Nicholas Casina (“Husband”) appeals the order denying his motion to

set aside final judgment of dissolution of marriage. Because the final judgment was entered in violation of Husband’s due process rights, we

reverse.

The record reflects that the parties appeared before the trial court on

June 17, 2021, for a hearing on a motion for contempt filed by Dulce Casina

(“Wife”). Wife’s motion for contempt was based on Husband’s failure to

produce mandatory disclosure documents. The motion correctly recited that

the trial court had already entered two separate orders compelling Husband

to produce the required documents. In her motion, Wife requested the trial

court find Husband in contempt, again order Husband to produce all

mandatory disclosure documents, order Husband to pay the attorney’s fees

incurred by Wife as a result of Husband’s failure to comply with his mandatory

disclosure obligations, and grant such other relief as deemed fair and just.

No order was entered on Wife’s motion for contempt. Rather, on

August 19, 2021, two months after the contempt hearing, Wife filed a

“Renewed Motion for Final Judgment of Dissolution of Marriage After Judicial

Default.” Attached to the motion was Wife’s affidavit in support of entry of a

final judgment, as well as a proposed final judgment. Six days later, the trial

court entered a final judgment of dissolution of marriage that was largely

identical to the proposed final judgment submitted by Wife. The final judgment

2 addresses, among other things, child related issues, equitable distribution,

alimony, marital liabilities, and attorney’s fees.

Thereafter, Husband timely filed a motion to set aside final judgment

of dissolution of marriage, arguing that “[n]o hearing on [Wife’s] Motion for

Final Judgment was ever coordinated, scheduled, or noticed.” The trial court

denied Husband’s motion, finding that default was entered against Husband

as a sanction for his failure to comply with the court orders regarding

production of mandatory disclosure documents.

“A trial court violates a litigant’s due process rights when it is expands

the scope of a hearing to address and determine matters not noticed for

hearing.” Margulies v. Margulies, 528 So. 2d 957, 959 (Fla. 3d DCA 1988).

Here, Husband was noticed for a motion for contempt hearing, not a final

hearing. Indeed, the final judgment begins with a recitation that “[t]his cause

was heard by the Court on June 17, 2021 on a Motion for Contempt.”

Additionally, even if the trial court had struck Husband’s pleadings and

entered a default as a sanction, it was still improper to conduct a final hearing

at a hearing noticed for a motion for contempt. Florida’s Family Law Rules of

Procedure do not contemplate conducting trial at the same time as the entry

of default. See Fla. Fam. L. R. P. 12.440(c) (“In the event a default has been

3 entered, reasonable notice of not less than 10 days shall be given unless

otherwise required by law.”).

We reverse the trial court’s order denying Husband’s motion to set

aside final judgment and remand for further proceedings consistent with this

opinion.

REVERSED and REMANDED.

LAMBERT, C.J., and HARRIS, J., concur.