57 So. 3d 233
Fla. Dist. Ct. App.2011Background
- Mother appealing a contempt finding and visitation modification order.
- Court relied on its independent investigation of facts in ruling.
- Contempt and sanctions motions followed for nonpayment, lack of insurance, and denied visitation.
- Hearing revealed irregular visitation, communication gaps, and disputed school contact information.
- Trial court increased father’s visitation and ordered nightly phone calls, based on credibility findings.
- Immediately after, appellate court held independent investigation violated due process and visitation modification was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the judge’s independent fact-finding violate due process? | Rogers contends judge erred by ex parte fact gathering. | Rogers argues judge’s findings were based on record evidence. | Yes; independent investigation violated due process. |
| Was the visitation modification properly raised and litigated? | Rogers asserts modification not pleaded or litigated. | Rogers contends implied consent supported modification. | No; improper by not being pleaded or litigated. |
| Was modification lawful under §61.13(4)(c)6, Florida Statutes? | Mothers’ actions not properly framed as best interests modification request. | Father requested modification; best interests not established. | Not applicable here; due process violation supersedes statutory avenue. |
| Did due process require remand to a different judge? | Contends original judge’s independence tainted proceedings. | No special instruction; standard remand adequate. | Yes; remand to a different judge required. |
Key Cases Cited
- Neumann v. Neumann, 857 So.2d 372 (Fla. 1st DCA 2003) (due process violated when issue not pleaded or litigated)
- Foerster v. Foerster, 885 So.2d 927 (Fla. 2d DCA 2004) (modification of parenting plan requires proper presentation)
- Pelliccia v. Arce, 867 So.2d 619 (Fla. 2d DCA 2004) (issue not argued cannot support modification by implied consent)
- Ginnell v. Pacetti, 31 So.3d 217 (Fla. 4th DCA 2010) (modification supported when best interests argued at hearing)
- Neumann v. Neumann, 857 So.2d 372 (Fla. 1st DCA 2003) (due process denied when issues not raised)
- State v. McCrary, 676 N.W.2d 116 (S.D. 2004) (judge must not independently investigate to maintain neutrality)
- Williams v. State, 143 So.2d 488 (Fla. 1962) (courthouse must be neutral and fair)
- Davis v. Parks, 194 So. 613 (Fla. 1939) (courts must avoid ex parte communications; impartial adjudication)