DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
LYNNE GARCELL,
Appellant,
v.
ELIAS GARCELL,
Appellee.
No. 4D12-3528
[November 5, 2014]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Steven B. Feren, Judge; L.T. Case No. 10-3124 FMCE.
Jessica VanValkenburgh and Ejola Cook of The Ticktin Law Group,
P.A., Deerfield Beach, for appellant.
Hale Schantz of Schantz and Schantz, P.A., Weston, for appellee.
PER CURIAM.
Lynne Garcell (“appellant”) appeals the trial court’s final order on
dissolution of marriage and the denials of her subsequent motions to
vacate the final judgment. At the conclusion of the hearing, before the
entry of the final order and judgment, the trial judge granted appellant
an additional forty-five days to conduct additional discovery, and
instructed the parties to contact him when this discovery was completed
so he could schedule another hearing and decide the pending issues
relating to alimony and child support. However, twenty-seven days after
this hearing and before appellant had completed her discovery, the trial
court issued its Final Order on Dissolution of Marriage and Other Relief
(“final order”) without an explanation as to why it was being issued
before the expiration of the forty-five day extension. Appellant contends
the court improperly entered the final order while discovery was still
pending. For the reasons stated below, we agree with appellant and
reverse.
Here, appellant was never given a full opportunity to present her case
to the court prior to the entry of the final order. Appellant brought this
issue to the court’s attention, and was assured that she would be given a
chance to present her case. As such, by entering the final order before
appellant had an opportunity to be heard, the trial court deprived her of
the due process guaranteed by the Florida Constitution. See Art. I, § 9,
Fla. Const. This court has held in the past that “‘[t]he denial of due
process rights, including the opportunity to be heard, to testify, and to
present evidence, is fundamental error.’” Kilnapp v. Kilnapp, 140 So. 3d
1051, 1053 (Fla. 4th DCA 2014) (quoting Weiser v. Weiser, 132 So. 3d
309, 311 (Fla. 4th DCA 2014)); see also Julia v. Julia, 146 So. 3d 516,
520 (Fla. 4th DCA 2014) (stating that “‘[d]ue process requires that a
party be given the opportunity to be heard and to testify and call
witnesses on the party’s behalf . . . and the denial of this right is
fundamental error’” (quoting Minakan v. Husted, 27 So. 3d 695, 698 (Fla.
4th DCA 2010)).
Rendering the final judgment in this case while court-authorized
discovery was still pending was an abuse of discretion. With the trial
court’s express permission, appellant was in the process of obtaining
additional discovery pertaining to appellee’s income and ability to pay
when the final order was handed down. Therefore, the trial court
reached its final decision and made its findings of fact without allowing
appellant to utilize the time it previously granted to assemble and
present the applicable facts for its consideration. See Payne v. Cudjoe
Gardens Prop. Owners Ass’n, 837 So. 2d 458, 461 (Fla. 3d DCA 2002)
(stating in regards to summary judgment that “[w]here discovery is not
complete, the facts are not sufficiently developed to enable the trial court
to determine whether genuine issues of material facts exist”).
Since appellant was unable to complete the discovery process and was
not permitted to present her case to the trial court, it can hardly be said
that the trial court’s award of alimony and child support was based upon
a meaningful review of all of the competent, substantial evidence. Steele
v. Love, 143 So. 3d 1020, 1022 (Fla. 4th DCA 2014) (stating that a
“court’s determination [of child support] must be supported by
competent, substantial evidence”); see also Vitro v. Vitro, 122 So. 3d 382,
387 (Fla. 4th DCA 2012) (stating that “‘where the record does not contain
substantial, competent evidence to support the trial court’s findings
regarding the amount of alimony awarded, the appellate court will
reverse the award’” (quoting Wabeke v. Wabeke, 31 So. 3d 793, 795 (Fla.
2d DCA 2009)). As a result, we reverse the trial court’s final order and
remand this case for rehearing on both of these issues.
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Reversed and Remanded.
GERBER, LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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