Hunter v. Hunter
65 So. 3d 1213
| Fla. Dist. Ct. App. | 2011Background
- Final judgment dissolved marriage on Sep 30, 2009, awarding Father primary residential custody of the children.
- Mother sought contempt and made additional requests to enforce visitation, including make-up visitation after noncompliance.
- Mother obtained a contempt order and later a verified emergency pick-up order for the children due to continued noncompliance.
- Trial court, after a nonevidentiary hearing, transferred primary residential custody from Father to Mother and denied a written best interests finding.
- Appeal challenges: (i) custody transfer as punishment for contempt, (ii) lack of due process notice, (iii) failure to follow Fla. Stat. §61.13(4)(c) procedures.
- Appellate court reverses, holding custody should be returned to Father, with remand for appropriate proceedings consistent with the ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether transfer of custody as contempt sanction was correct | Hunter argues custody changed as punishment for contempt. | Hunter contends contempt-based transfer was permitted. | Error to transfer custody as contempt sanction. |
| Whether due process was satisfied due to lack of notice | Father lacked notice that custody could change at the hearing. | Mother did not seek custody change, so notice was insufficient. | Due process violated; reversal required. |
| Whether the trial court complied with §61.13(4)(c) requirements | There was no request or findings supporting a custody change under §61.13(4)(c). | No proper invocation or best interests finding occurred. | Noncompliance mandates reversal; custody must be returned. |
Key Cases Cited
- LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131 (Fla. 2d DCA 1999) (custody cannot be used as contempt punishment)
- Burckle v. Burckle, 915 So. 2d 747 (Fla. 2d DCA 2005) (contismpt sanctions not a custody remedy)
- Busch v. Busch, 762 So. 2d 1010 (Fla. 2d DCA 2000) (lack of notice violates due process in custody changes)
- Richmond v. Richmond, 537 So. 2d 1039 (Fla. 5th DCA 1988) (notice and opportunity to be heard required for custody modification)
- Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976) (due process basics in custody proceedings)
- Larocka v. Larocka, 43 So. 3d 911 (Fla. 5th DCA 2010) (reversal on face of record without transcript when error evident)