RAYON PAYNE, INDIVIDUALLY AND O/B/O C.P., A CHILD vs SANDRA KOCH

• Court: District Court of Appeal of Florida
• Decided: April 14, 2022
• Docket: 21-2427
• 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

RAYON PAYNE, INDIVIDUALLY AND O/B/O C.P., A CHILD,

Appellant,

v. Case No. 5D21-2427 LT Case No. 2017-DR-3264

SANDRA KOCH,

Appellee.

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Opinion filed April 14, 2022

Nonfinal Appeal from the Circuit Court for Seminole County, Susan Stacy, Judge.

Rayon Payne, Orlando, pro se.

No Appearance for Appellee.

SASSO, J.

Rayon Payne (“Father”) appeals the nonfinal order of the trial court

issued after a hearing on his Emergency Motion for Child Pickup. On appeal,

he argues the trial court erred by granting relief not requested in the motion when it ordered that his minor child be enrolled in behavioral therapy.

Because Father seeks review of a nonfinal order that is not reviewable

pursuant to Florida Rule of Appellate Procedure 9.130, we treat the appeal

as a petition for a writ of certiorari. See Fla. R. App. P. 9.040(c); Thompson

v. Melange, 311 So. 3d 898, 899 (Fla. 1st DCA 2020) (“Because the order is

a nonfinal order, and not appealable under rule 9.130, we treat the appeal

as a petition for writ of certiorari . . . .”). 1 And for the reasons that follow, we

grant the petition.

In reviewing a petition for a writ of certiorari, this Court must first

determine whether there is a material injury that cannot be corrected on

appeal, otherwise termed as irreparable harm. Rodriguez v. Miami-Dade

Cnty., 117 So. 3d 400, 404 (Fla. 2013). “Only after irreparable harm has been

established can an appellate court then review whether the petitioner has

also shown a departure from the essential requirements of law.” Id.

In this case, Father is challenging the portion of the trial court’s order

directing the parties to enroll their minor child in behavioral therapy. The

question then becomes whether having the child participate in behavioral

1 The order also requires that Mother attend counseling and that Father pay 50% of the expenses associated with Mother’s counseling. It does not appear that Father challenges this portion of the order. Therefore, this opinion addresses only the portion of the order directing Father’s minor child to attend behavioral therapy and the associated expenses. 2 therapy against the express wishes of his father causes irreparable harm

that cannot be remedied on plenary appeal. We conclude that it does.

Our conclusion finds support in Belair v. Drew, 770 So. 2d 1164 (Fla.

2000), in which the mother alleged that a “trial court’s order mandating

grandparent visitation over her objection unconstitutionally infringe[d] on her

personal parental rights, the violation of which cannot be remedied on

subsequent appeal.” Id. at 1166. The trial court temporarily granted the

grandmother visitation rights and set a future hearing to determine

permanent visitation rights. Id. at 1167. The Florida Supreme Court

determined:

While the trial court may later determine that respondent’s visitation request is not in the best interest of the child or that the forced visitation is unlawful, that later determination cannot alter what the visitation order has already mandated. The harm petitioner seeks to avoid would have already been done.

Id. Accordingly, the Court concluded that the district court erred in not

granting certiorari review. Id.; see also Von Eiff v. Azicri, 720 So. 2d 510, 516

(Fla. 1998) (holding that parents had “a constitutional right of privacy in their

decision to limit the grandparents’ visitation with their child” that could not be

infringed upon by unwarranted governmental interference); Russell v. Pasik,

178 So. 3d 55, 58 (Fla. 2d DCA 2015) (finding irreparable harm would result

from allowing children to spend time with non-biological parent as case

3 proceeds because it would interfere with the constitutional privacy interest in

the raising of the children); Williams v. Spears, 719 So. 2d 1236, 1239 (Fla.

1st DCA 1998) (“The damage sought to be avoided by the parents would

have already been done, that being the inquiry into their private decision-

making process concerning the best interests of their child.”).

We next consider whether Father has demonstrated the trial court

departed from the essential requirements of law. In this regard, Father

argues that the trial court erred by granting relief not requested in the

pleadings and not properly noticed. Again, we agree.

“A ruling constitutes a departure from the essential requirements of law

when it amounts to a violation of a clearly established principle of law

resulting in a miscarriage of justice.” Clay Cnty. v. Kendale Land Dev. Inc.,

969 So. 2d 1177, 1180 (Fla. 1st DCA 2007) (internal quotations omitted).

Fundamentally, it is improper to enter an order which exceeds the scope of

relief sought by the pleadings, absent notice which affords the opposing party

an opportunity to be heard with respect to the proposed relief. Williams v.

Williams, 690 So. 2d 601, 603 (Fla. 1st DCA 1996). That notice was not

provided here. Rather, the trial court “on its own motion” ordered counseling

services not requested by either party and ordered Father to pay for a portion

of those services. Father’s limited response to this surprise relief after it was

4 ordered did not constitute trial by consent nor did it cure the trial court’s due

process violation. See, e.g., Richard v. Bank of Am., N.A., 258 So. 3d 485,

488–89 (Fla. 4th DCA 2018) (“Generally, notice after the fact does not satisfy

due process.”); Epps v. State, 941 So. 2d 1206, 1207 (Fla. 4th DCA 2006)

(“A motion for rehearing is not a sufficient, meaningful opportunity to be

heard. To be fair or meaningful, the opportunity to be heard must be provided

‘before rights are decided.’” (citations omitted)); Viets v. Am. Recruiters

Enters., Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006) (“Generally, due

process requires fair notice and a real opportunity to be heard and defend in

an orderly procedure before judgment is rendered.”). As a result, we

determine the trial court departed from the essential requirements of law by

granting relief not requested by either party and without providing notice or

a meaningful opportunity to be heard. See, e.g., Thompson, 311 So. 3d at

902–03 (concluding trial court departed from the essential requirements of

the law by ordering relief not requested by the parties in the pleadings or at

the hearing).

Father also argues that the trial court lacked the statutory authority to

order behavioral counseling for Father’s child. We do not reach this issue as

it is not necessary to the disposition of this petition.

5 For the reasons stated above, we quash the portion of the order

requiring Father’s minor child to attend behavioral therapy and ordering

Father to pay for 50% of the expenses associated with the child’s behavioral

therapy.

PETITION GRANTED IN PART; ORDER QUASHED IN PART.

LAMBERT, C.J., and COHEN, J., concur.