Third District Court of Appeal
State of Florida
Opinion filed June 2, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0473
Lower Tribunal No. 17-12360
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Stephanie Orozco,
Appellant,
vs.
Carlos Rodriguez-Amadeo,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Bernard S. Shapiro, Judge.
Cain & Snihur, LLP and May L. Cain, for appellant.
Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for
appellee.
Before LOGUE, LINDSEY and LOBREE, JJ.
LOBREE, J.
Stephanie Orozco (the “wife”) appeals from the trial court’s non-final
order modifying timesharing and temporarily giving sole parental
responsibility of their child to Carlos Rodriguez-Amadeo (the “husband”).
Finding merit in the wife’s due process challenge, we reverse. 1
The underlying dissolution proceedings began in 2017. On January
28, 2020, the husband filed a verified emergency motion to suspend the
wife’s timesharing with their child. The same day, the wife’s counsel moved
for leave to withdraw, with consent of her client. The next day, the court
granted the withdrawal and directed the wife to obtain new counsel within
thirty days or advise it that she was representing herself. The following day,
counsel for the husband noticed a status conference and hearing on his
emergency motion for February 10, 2020.
On February 10, 2020, the trial court conducted an evidentiary hearing
on the husband’s “emergency” motion to suspend the wife’s timesharing and
for other relief, which alleged that the wife was interfering with the husband’s
reunification with the child, in part, by coaching the child into making serious
accusations of abuse by the husband to others. While the husband was
represented by counsel, the wife appeared pro se at the hearing. After taking
the testimony of the guardian ad litem, the court-appointed psychologist in
charge of reunification, and the wife, the trial court found that the wife was
1
Given our disposition of the due process claim, we decline to reach and
express no view on the alternative arguments raised.
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interfering with its attempts to reunify the husband and the child by coaching
the child to make egregious accusations. The wife contends that the trial
court denied her due process in conducting the hearing without affording her
a meaningful opportunity to present her case.
“We review a possible violation of due process de novo.” Julia v. Julia,
146 So. 3d 516, 520 (Fla. 4th DCA 2014). “The constitutional guarantee of
due process requires that judicial decisions be reached by a means that
‘preserves both the appearance and reality of fairness.’” Pena v. Rodriguez,
273 So. 3d 237, 240 (Fla. 3d DCA 2019) (quoting Verizon Bus. Network
Servs., Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008)).
It is a guarantee implicated in timesharing proceedings, affording parties “a
meaningful opportunity to be heard,” as well as “the right . . . to be apprised
of all the evidence upon which an issue is to be decided, with the right to
examine, explain or rebut such evidence.” Pena, 273 So. 3d at 240 (quoting
Matter of SAJ, 942 P.2d 407, 410 (Wyo. 1997)).
Despite our conviction that the trial court acted at all times with the best
of intentions, the record reflects that the wife was not given a meaningful
opportunity to cross-examine all of the husband’s witnesses and to call her
own witnesses, who had been previously sworn in and stood ready outside
the courtroom. Asking the wife only once during the husband’s presentation
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of his case for her response to what she had heard so far (whereupon she
gave her testimony), the trial court then interrupted her to ask about and hear
other witnesses for the husband. The wife subsequently attempted to rebut
the testimony of one of the husband’s witnesses, but the trial court
interrupted her and immediately issued a ruling depriving the wife of the
opportunity to present additional evidence.
These procedural shortcomings constituted reversible error. See Cole
v. Cole, 159 So. 3d 124, 125 (Fla. 3d DCA 2013) (trial court abused its
discretion and violated father's right to due process in ruling without giving
him opportunity to present evidence); Munoz v. Salgado, 253 So. 3d 87, 88
(Fla. 3d DCA 2018) (granting certiorari and quashing order entered where
trial court halted proceedings, denied pro se father's motion to continue and
did not allow him to finish his cross-examination of mother, testify, or present
evidence); Julia, 146 So. 3d at 520-21 (reversing where wife was not able to
call witnesses on her behalf or present argument of counsel at end of
husband’s case in violation of due process); Minakan v. Husted, 27 So. 3d
695, 699 (Fla. 4th DCA 2010) (“Even if the wife's evidence would not have
impressed the court, a party has the right to present evidence and to argue
the case at the conclusion of all the testimony.”); Haywood v. Bacon, 248
So. 3d 1254, 1256 (Fla. 5th DCA 2018) (trial court erroneously terminated
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proceedings during mother’s cross-examination of guardian ad litem and
failed to permit her to present rebuttal evidence); Bielling v. Bielling, 188 So.
3d 980, 981 (Fla. 1st DCA 2016) (“The trial court's entry of a final order
without allowing the parties to complete presenting evidence and argument
constituted a denial of due process.”).
While it is true that courts may “enter a temporary modification of
timesharing without holding a full hearing . . . such circumstances are
typically limited to cases, for example, where there is a risk of physical harm
to the child or where the child is about to be improperly removed from the
state.” Munoz, 253 So. 3d at 89. Here, despite the caption of the husband’s
motion, “there are no allegations of an emergency that would justify violating
the [wife’s] due process rights.” Aiello v. Aiello, 869 So. 2d 22, 23 (Fla. 2d
DCA 2004).
Accordingly, we reverse the trial court’s order and remand for a new
hearing on the husband’s motion as soon as practicable. Because we
recognize that the child has been living with her father since the issuance of
the order, and we are reluctant to further disrupt these arrangements, we
uphold the order to maintain the status quo until a new hearing is conducted.
See Wolfson v. Wolfson, 173 So. 3d 1146, 1146-47 (Fla. 3d DCA 2015).
Reversed and remanded for further proceedings.
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