NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



JEFFREY A. MESSING,                         )
                                            )
              Appellant,                    )
                                            )
v.                                          )         Case No. 2D16-2027
                                            )
KAREN M. NIERADKA,                          )
                                            )
              Appellee.                     )
                                            )

Opinion filed November 29, 2017.

Appeal from the Circuit Court for
Hillsborough County; Christopher Nash,
Judge.

Robert E. Biasotti of Biasotti Law, St.
Petersburg, for Appellant.

Mark A. Neumaier, Tampa, for Appellee.


VILLANTI, Judge.


              Jeffrey Messing (the Husband) appeals the final judgment of dissolution of

his marriage to Karen Nieradka (the Wife). Because the trial court violated the

Husband's due process rights by converting the final hearing to an evidentiary hearing

without notice and then conducting the final hearing in the Husband's absence, we

reverse and remand for a new hearing.
              The Husband and Wife were married on May 9, 2014. On December 10,

2014, the Husband filed a petition for annulment of the marriage, alleging that the

parties had separated immediately after the ceremony, had never lived together as

husband and wife, and had never consummated the marriage in any manner. The Wife

filed a timely answer and counterpetition for annulment, in which she sought to require

the Husband to pay certain debts she alleged were marital. Several months later, the

Wife filed an amended counterpetition in which she alleged the following:

              I do not contest the petition for annulment, but I am
              concerned that the court might decide we do not have
              grounds for an annulement [sic]. If that is the case, I would
              then like to proceed directly to dissolution of marriage. I
              forego my previous claim for any financial reimbursement
              from Mr. Messing.

              While the relationship between the parties initially deteriorated, they were

later able to resolve at least some of their differences. On September 17, 2015, the

Wife filed a "Motion to Enforce Stipulation & Settlement Agreement and Request for

Uncontested Hearing." In the motion, the Wife requested that the court "move forward

to uncontested final judgment on the Husband's Petition for Annulment."

              The Wife's motion to enforce stipulation was set for hearing on

November 18, 2015; however, for reasons not apparent from the record, that hearing

did not go forward. Instead, it was rescheduled for January 6, 2016. Again however,

for reasons not apparent from the record, the scheduled hearing did not occur. But

instead of resetting the motion to enforce for hearing, the Wife filed a motion for

judgment on the pleadings together with a notice of final hearing, which set the date of

the hearing for March 1, 2016.




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              In anticipation of the noticed final hearing, the Wife filed a "Stipulation to

Final Judgment of Annulment." In this stipulation, the parties agreed that the Husband's

petition for annulment would be granted and that the Wife would pay $1500 toward the

Husband's attorney's fees. Paragraph five of the stipulation provided:

              The Husband can proceed to final hearing on March 1, 2016,
              without the Wife present pursuant to this Stipulation and the
              Wife waives appearance at the final hearing but agrees to
              the Stipulation contained herein and asks that the Court
              enter a Judgment of Annulment and approve the stipulation
              herein.

The Wife also filed a waiver of appearance, in which she asked the court to sign a final

judgment of annulment at the hearing and provide her with a copy.

              At the March 1, 2016, final hearing, counsel for both parties appeared;

however, neither party appeared. At the start of the hearing, the trial court sua sponte

requested that the attorneys call their clients and request their presence at the hearing.

While the Wife's counsel was able to contact her and she appeared at the hearing, the

Husband's counsel was apparently not able to reach the Husband, and he did not

attend. Nevertheless, the trial court went forward with an evidentiary hearing, swearing

in the Wife and taking testimony from her. Based solely on the Wife's testimony, the

court rejected the parties' stipulation to an annulment and, at the Wife's ore tenus

request, proceeded to consider her counterpetition for dissolution. The trial court

granted this request and, even though the parties had no stipulation concerning their

respective rights in a dissolution action, the court granted a final judgment of dissolution

at the conclusion of the hearing. The Husband now appeals that judgment.

              The Husband raises a number of issues concerning the final judgment;

however, we find merit only in his argument that the trial court violated his due process



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rights in entering the final judgment of dissolution. As the Husband properly points out,

once the trial court determined that it could not approve the parties' stipulation for

annulment without taking evidence, the court should have stopped the hearing and

ordered the parties to schedule an evidentiary hearing rather than proceeding with an

unnoticed evidentiary hearing that could be attended by only one of the parties.

              Florida law holds that "[t]he specific parameters of the notice and the

opportunity to be heard required by procedural due process are not evaluated by fixed

rules of law, but rather by the requirements of the particular proceeding." Keys Citizens

For Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 

, 948 (Fla.

2001). However, in general, "[p]rocedural due process requires both fair notice and a

real opportunity to be heard." 

of Law Enf't v. Real Prop., 

, 960 (Fla. 1991)); see also Vollmer v. Key Dev. Props., Inc., 

, 1027

(Fla. 2d DCA 2007). On the issue of notice, "[t]he notice must be of such nature as

reasonably to convey the required information, and it must afford a reasonable time for

those interested to make their appearance." Keys 

(quoting

Mullane v. Cent. Hanover Bank & Tr. Co., 

, 314 (1950)). Hence, the failure

to provide a party with adequate notice of the need to be present at a hearing

constitutes a violation of due process. See, e.g., Wildwood Props., Inc. v. Archer of

Vero Beach, Inc., 

, 692 (Fla. 4th DCA 1993). So too does the taking of

evidence at a hearing not noticed as an evidentiary hearing. See Trans Health Mgmt.,

Inc. v. Nunziata, 

, 861 (Fla. 2d DCA 2014). Blindsiding a party by

announcing on the day of the hearing that the court will entertain evidence at a hearing

not noticed as an evidentiary hearing is the epitome of a due process violation. See




                                            -4-
Jackson v. Leon Cty. Elections Canvassing Bd., 

, 578 (Fla. 1st DCA

2016) ("[T]he opportunity to be heard at an evidentiary hearing requires time to secure

the attendance of witnesses and to prepare for the presentation of evidence and

argument." (quoting Crepage v. City of Lauderhill, 

, 65 (Fla. 4th DCA

2000) (internal quotation and citation omitted)); see also Wildwood 

n.1 (holding that notice that the court would hear evidence provided on the day of

a hearing to an attorney who was seeking to withdraw from representing a party was not

adequate to comport with due process). In other words, proper notice of the need to be

present and to present evidence is required.

              Here, while the Wife filed a notice of final hearing and a motion for

judgment on the pleadings, she did not notice the hearing as an evidentiary hearing.

The record shows that the Wife also filed the parties' stipulation, which jointly requested

that the court grant the Husband's petition for annulment, along with a waiver of

appearance that requested that she be provided with a copy of the final judgment.

Nothing about either the notice of hearing or the filed documents put the Husband on

notice that the final hearing was going to involve anything other than the trial court's

anticipated acceptance of the parties' stipulation—and certainly not that the court would

decide, sua sponte, to conduct an evidentiary hearing at which the Husband's presence

would be required. Having had no notice of the evidentiary nature of the hearing, the

Husband had no opportunity to prepare for the presentation of evidence, and the trial

court's decision to go forward with the hearing despite this lack of notice constituted a

violation of the Husband's due process rights.




                                            -5-
              Instead of proceeding as it did, once the trial court determined that it

needed to take evidence on the issue of whether an annulment was proper, it should

have requested that the parties schedule a properly noticed evidentiary hearing at which

the Husband could appear. Further, once the Wife appeared and the court determined

from her testimony that it could not honor the parties' stipulation, the trial court should

not have proceeded to decide the case based solely on the Wife's testimony without

giving the Husband a reasonable opportunity to present counterevidence on the issue.

The trial court's decision to reject the parties' joint stipulation, convert the hearing to an

evidentiary one without notice, entertain evidence from the only party—the Wife—who

managed to appear despite the lack of notice, and rely solely on that evidence without

ever giving the Husband an opportunity to present other evidence was a classic

violation of the Husband's due process rights.

              Accordingly, because the trial court violated the Husband's due process

rights, we reverse the final judgment of dissolution and remand for a properly noticed

hearing.

              Reversed and remanded.


NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.




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