          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1490
                  _____________________________

MARY WILLIAMS, Former Wife,

    Appellant,

    v.

RONALD H. SAPP, Former
Husband,

    Appellee.
                  ___________________________

On appeal from the Circuit Court for Baker County.
Stanley H. Griffis, III, Judge.

                          May 31, 2018


M.K. THOMAS, J.

     Appellant, the former wife, appeals a Consent Final Judgment
for Dissolution of Marriage and the denial of her Motion for
Rehearing. She asserts reversible error claiming the trial court,
through its sua sponte modification of the parties’ mediation
settlement agreement without providing her notice and the
opportunity to be heard, violated her due process rights. We agree
and reverse and remand for further proceedings.

     Following years of protracted litigation in this family law
matter, the parties attended court-ordered mediation on January
11, 2017. After mediating for nine hours, the parties reached a
successful resolution of all issues and generated a sixteen-page
document setting forth the negotiated terms, including, but not
limited to, time-sharing, parental responsibility, child support,
asset distribution, insurance, tax exemptions, and attorney’s fees
and costs. The parties meticulously initialed and executed all
pages of the agreement. The court-appointed mediator and parties
filed the executed settlement agreement, entitled “Consent Final
Judgment for Dissolution of Marriage,” with the trial court. The
mediator also filed a notice advising the trial court of an agreement
reached for “total resolution.”

     The trial court had previously scheduled and noticed a “[f]ive-
minute” status conference to occur the day after mediation.
Following mediation and before the status conference, the former
wife filed a waiver in which she: (1) stated that the parties had
reached a complete resolution and requested the trial court to
enter a final order in conformance with the Consent Final
Judgment as executed by the parties the previous day; (2)
“waive[d] notice of any and all hearings, waive[d] the formal
setting of this cause for final hearing, and waive[d] the necessity
of the Court entering an order Setting the Cause for Trial”; and (3)
requested to be provided “Notice of the Final Hearing.”

     Neither the former wife nor her attorney attended the status
conference. Counsel for the former husband appeared and
purportedly presented the executed mediation agreement to the
trial court (in the form of a Consent Final Judgment for
Dissolution of Marriage) and requested approval. Scheduled as a
status conference, the event was not recorded. The trial judge did
not approve the executed settlement agreement reached at
mediation, but instead initiated a sua sponte reworking of the
agreement – striking through provisions, inserting handwritten
amendments, and initialing the edits. The modifications directly
contradicted the parties’ mediation agreement by granting shared
parental responsibility, rather than sole parental responsibility to
the former wife, and providing the former husband a tax
exemption for one of the minor children, instead of tax exemptions
to the former wife for both children. The trial court then entered
the final order approving its altered version of the Consent Final
Judgment.

    Upon receipt of the Final Judgment and realization that it no
longer reflected the terms negotiated and memorialized by the

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parties at mediation, the former wife timely filed a Motion for
Rehearing. She asserted the trial court erred in modifying the
agreement without notice and consent of the parties and requested
a hearing on the matter. The trial court denied the motion on the
sole basis that “[t]he wife and counsel failed to attend the trial.”

     On appeal, the former wife claims reversible error as a result
of the trial court’s sua sponte modification of the Consent Final
Judgment without notice and an opportunity to be heard, a
violation of procedural due process. Furthermore, she argues the
trial court abused its discretion by denying her Motion for
Rehearing on the basis that she failed to attend trial when no trial
had been set or noticed for that day. Both arguments are
meritorious.

    Appellate courts review possible due process violations in
family law cases de novo. Dep’t of Revenue ex rel. Thorman v.
Holley, 86 So. 3d 1199, 1204 (Fla. 1st DCA 2012). Denials of
motions for rehearing are reviewed for abuse of discretion.
Trammell v. Ward, 667 So. 2d 223, 226 (Fla. 1st DCA 1995).

     Upon the trial court’s determination that it would not approve
(without acquisition or contemplation of additional evidence) the
settlement agreement as presented by the parties, the trial court
should have terminated the status conference and noticed the
cause for an evidentiary hearing. “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.” Messing v. Nieradka, 230 So.
3d 962, (Fla. 2d DCA 2017) (citing Jackson v. Leon Cty. Elections
Canvassing Bd., 204 So. 3d 571, 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.’” Jackson, 204 So. 3d at
578 (quoting Crepage v. City of Lauderhill, 774 So. 2d 61, 65 (Fla.
4th DCA 2000)). Here, the trial court not only failed to provide the
former wife with requisite notice of an evidentiary hearing, but
then proceeded, in her absence, to perform an unsolicited redraft
of the executed mediation settlement agreement.



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     In asserting the trial court erred by not honoring the
mediation agreement of the parties, the former wife does not
contest the general rule in Florida that settlement provisions
concerning child support, custody, and visitation must be reviewed
and approved by the trial court as being in the best interest of the
children. Griffith v. Griffith, 860 So. 2d 1069, 1071 (Fla. 1st DCA
2003) (citing Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA
1996)). Instead, she correctly claims such discretion does not
provide a trial judge with “virtually free hand to set aside the
settlement agreement because the parties had minor children . . .”
Id. at 1073.

     We do not address the sufficiency of evidence to support the
trial court’s rejection and modification of the mediation agreement;
we note only that the rejection and sua sponte modification by the
trial court of the parties’ mediation agreement in this case should
not have occurred in the absence of the former wife being given
appropriate notice and an opportunity to be heard at a properly
scheduled evidentiary hearing. The trial court’s denial of the
former wife’s request for rehearing, on the basis she “failed to
attend” a trial that was never scheduled or noticed, constitutes an
abuse of discretion.

     On remand, the trial court must either approve the marital
settlement agreement as negotiated by the parties or, if unable or
unwilling to do so, conduct a properly noticed evidentiary hearing.
The remaining claims of Appellant are hereby denied without
further comment.

     For the aforementioned reasons, the Consent Final Judgment
for Dissolution of Marriage is reversed, and the cause remanded to
the trial court for further action as described herein.

JAY and WINSOR, JJ., concur.
               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Michael M. Giel of Giel Family Law, P.A., Jacksonville, for
Appellant.

Ronald H. Sapp, pro se, Appellee.




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