Bahl v. Bahl
220 So. 3d 1214
| Fla. Dist. Ct. App. | 2016Background
- Father filed for dissolution in April 2015; parties entered a November 2015 temporary mediated timesharing agreement giving father majority time; trial court adopted it.
- A guardian ad litem (GAL) was appointed to investigate alleged domestic violence and evaluate child's best interests; GAL filed a report on May 6, 2016.
- On the same day the GAL report was filed, Mother filed an emergency motion to change temporary timesharing relying on the GAL report.
- The trial court granted Mother's motion ex parte the same day: awarded Mother primary timesharing, limited Father to one-hour supervised visitation every other weekend, and prohibited phone contact between Father and child.
- Father moved to vacate; the trial court denied the motion. Father appealed, arguing lack of notice and opportunity to be heard, reliance on an unsworn GAL report, and that the court granted relief Mother did not request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court violated due process by entering ex parte modification without notice/hearing | Bahl: emergency not shown; he was denied notice and opportunity to be heard | Rupa: court acted appropriately based on GAL findings (argued emergency) | Reversed: no sufficient emergency; father entitled to notice and hearing before custody/visitation change |
| Whether emergency exception excused procedural protections | Rupa: GAL findings created emergency warranting ex parte relief | Bahl: allegations did not show imminent physical harm or risk of removal | Held: allegations (parental alienation, potential harm) insufficient to bypass due process; even if emergency, court should have scheduled prompt evidentiary hearing |
| Whether court could base relief solely on unsworn GAL report | Bahl: relief improperly founded on unsworn GAL report without sworn testimony or hearing | Rupa: parties had agreed GAL report could be considered and GAL could testify | Held: GAL report alone insufficient for ex parte relief; parties contemplated GAL testimony and father must have opportunity to rebut at hearing |
| Whether court awarded relief beyond that requested | Bahl: court imposed no-phone-contact though Mother did not request that and GAL recommended daily supervised communications | Rupa: (implicit) relief was within court's discretion | Held: court erred by restricting phone contact when not requested and contrary to GAL recommendation |
Key Cases Cited
- Douglas v. Johnson, 65 So. 3d 605 (Fla. 2d DCA) (procedural due process requires opportunity to present witnesses and testify)
- Smith v. Crider, 932 So. 2d 393 (Fla. 2d DCA) (emergency exception to notice/hearing reserved for imminent physical harm or risk of removal; if ex parte relief issued, prompt hearing required)
- Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA) (discussing narrow emergency circumstances allowing ex parte custody changes)
- Crooks v. Crooks, 657 So. 2d 918 (Fla. 4th DCA) (reversing ex parte custody change founded on unsworn GAL report; ex parte relief requires sworn evidence)
- Leinenbach v. Leinenbach, 634 So. 2d 252 (Fla. 2d DCA) (parent must be given opportunity to rebut GAL report before custody modification)
- Abbott v. Abbott, 98 So. 3d 616 (Fla. 2d DCA) (court may not grant relief beyond what was requested)
Decision: Reversed and remanded for further proceedings; the ex parte order remains in effect until an evidentiary hearing is held within 20 days unless the parties agree otherwise.