       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 22, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-0012
                          Lower Tribunal No. 17-4574
                             ________________


                                 David Pena,
                                    Appellant,

                                        vs.

                             Leydis Rodriguez,
                                    Appellee.



     An appeal from the Circuit Court for Miami-Dade County, George A.
Sarduy, Judge.

      Martinez-Scanziani & Associates Law, P.A., and Denise Martinez-
Scanziani, for appellant.

     Francisco J. Vargas, P.A., and Francisco J. Vargas; Giel Family Law, P.A.,
and Michael M. Giel, (Jacksonville), for appellee.


Before FERNANDEZ, LOGUE, and MILLER, JJ.

      MILLER, J.
         The father, David Pena, appeals a final judgment of paternity adjudicating

issues of parental responsibility, timesharing, and child support. For the reasons

set forth below, we conclude that the trial court improvidently relied upon

proffered evidence in rendering the final judgment, thereby divesting the father of

his procedural due process rights, thus, we reverse.

         In 2010, the mother, Leydis Rodriguez, gave birth to a son. Although the

mother was unmarried at the time, the father held himself out to be, and was

recognized by all concerned as being, the natural father of the child. Accordingly,

the parties amicably arranged an informal visitation schedule and the father

provided intermittent child support.

         The parents’ relationship eventually deteriorated, and in 2017, the father

filed a petition for determination of paternity.1 Thereafter, the mother filed an

answer and counterpetition.        Although paternity was not disputed, issues of

parental responsibility, timesharing, and child support required resolution by the

trial court.    A court-ordered mediation was arranged, but the father failed to

appear. Consequently, the trial court struck his pleadings and scheduled a final

hearing on the remaining contested issues, as framed in the mother’s

counterpetition.




1   The father is not an attorney and acted pro se in the proceedings below.

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      At the final hearing, the trial court expended valiant, yet unsuccessful efforts

to effect a mutually agreed resolution of the disputed issues. The mother’s counsel

informally proffered the substance of her case. The father then addressed the court

regarding his timesharing and employment history.2 Thereafter, the proceedings

concluded without a settlement or any presentation of evidence. The trial court

subsequently rendered a final judgment, adjudicating the issues of parental

responsibility, timesharing, and child support. This appeal ensued.

      On appeal, the father contends the trial court erroneously relied solely upon

proffered evidence in rendering its final judgment of paternity. The mother asserts

that a stipulation of settlement was tacitly reached, vitiating the necessity of

presenting evidence. However, she commendably and properly confesses error as

to “the final judgment’s provision granting [her] ultimate responsibility over all

decisions affecting the child should the parties be unable to agree.” Fazzaro v.

Fazzaro, 110 So. 3d 49, 51 (Fla. 2d DCA 2013).

                             STANDARD OF REVIEW
      A “trial court has broad discretion in child custody matters, and its decision

in that regard is [typically] reviewed for an abuse of discretion.” Miller v. Miller,

2 The father was not administered an oath prior to addressing the trial court. See §
90.605(1), Fla. Stat. (2018) (“Before testifying, each witness shall declare that he
or she will testify truthfully, by taking an oath or affirmation . . .”); Houck v. State,
421 So. 2d 1113, 1116 (Fla. 1st DCA 1982) (“An unsworn witness is not
competent to testify.”) (citing Crockett v. Cassels, 95 Fla. 851, 116 So. 865
(1928)).

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842 So. 2d 168, 169 (Fla. 1st DCA 2003) (citations omitted); see Turnier v.

Stockman, 139 So. 3d 397, 400 (Fla. 3d DCA 2014) (“We review the trial court’s

final judgment establishing a parenting plan for an abuse of discretion.” (citations

omitted)); Smith v. Smith, 872 So. 2d 397, 398 (Fla. 1st DCA 2004) (stating a

“trial court’s imputation of income,” for purposes of determining a parent’s child

support obligation, is reviewed “for abuse of discretion” (citation omitted)). “An

abuse of discretion appears when the record reveals a lack of competent,

substantial evidence to sustain the findings of the trial court.” Richardson v.

Richardson, 442 So. 2d 1005, 1005 (Fla. 3d DCA 1983) (citation omitted); see

Schwieterman v. Schwieterman, 114 So. 3d 984, 987 (Fla. 5th DCA 2012). We

review a claim of deprivation of procedural due process de novo. A.B. v. Fla.

Dep’t of Children & Family Servs., 901 So. 2d 324, 326 (Fla. 3d DCA 2005); see

also Beroes v. Fla. Dep’t of Revenue ex rel. Palacios, 958 So. 2d 489, 492 (Fla. 3d

DCA 2007) (discussing that where the issue was decided as a matter of law, and

did not involve the resolution of any question of fact, review was de novo).

                               LEGAL ANALYSIS
      “No State shall . . . deprive any person of life, liberty, or property, without

due process of law . . .” Amend. XIV, § 1, U.S. Const.; see Art. I, § 9, Fla. Const.

“The constitutional guarantee of due process requires that judicial decisions be

reached by a means that ‘preserves both the appearance and reality of fairness.’”



                                         4
Verizon Bus. Network Servs., Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1151 (Fla.

1st DCA 2008) (citation omitted). Basic due process requires a party be provided

notice and a meaningful opportunity to be heard, the denial of which constitutes

fundamental error. See Nationstar Mortg., LLC v. Weiler, 227 So. 3d 181, 184-85

(Fla. 2d DCA 2017); Slotnick v. Slotnick, 891 So. 2d 1086, 1089 (Fla. 4th DCA

2004) (citation omitted).      The guarantee of due process is implicated in

determinations involving paternity and child support. See Little v. Streater, 452

U.S. 1, 5, 101 S. Ct. 2202, 2205, 68 L. Ed. 2d 627 (1981) (noting the federal due

process clause ordinarily guarantees an evidentiary hearing to a defendant in a

paternity action); Walters v. Petgrave, 248 So. 3d 1202 (Fla. 4th DCA 2018)

(reversing a final judgment establishing paternity, timesharing, and child support

where the mother was denied her due process rights by being precluded from

presenting her case-in-chief at the final hearing).

      “One of the basic elements of due process is the right of each party to be

apprised of all the evidence upon which an issue is to be decided, with the right to

examine, explain or rebut such evidence.” Matter of SAJ, 942 P.2d 407, 410

(Wyo. 1997) (citation omitted). Of particular significance is the right to cross-

examine, as “[t]he partiality of a witness is subject to exploration at trial, and is

‘always relevant as discrediting the witness and affecting the weight of his

testimony’ . . . the exposure of a witness' motivation in testifying is a proper and



                                           5
important function of the constitutionally protected right of cross-examination.”

Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347

(1974) (internal citation omitted); see Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.

Ct. 1011, 1021, 25 L. Ed. 2d 287 (1970) (“In almost every setting where important

decisions turn on questions of fact, due process requires an opportunity to confront

and cross-examine adverse witnesses.” (citations omitted)).

      In recognition of our binary, common law system of adversarialism, the

argument or proffer of counsel, not rendered under oath, absent a clear stipulation,

does not constitute admissible evidence.     See Matrix Sys., Inc. v. Odebrecht

Contractors of Fla., Inc., 753 So. 2d 652 (Fla. 3d DCA 2000) (“In the absence of a

clear stipulation of counsel, argument of counsel alone does not constitute

evidence from which the trial court can determine the propriety, vel non, of

granting injunctive relief.” (quoting Brand v. Elliott, 610 So. 2d 37, 38 (Fla. 5th

DCA 1992))); State v. T.A., 528 So. 2d 974, 975 (Fla. 2d DCA 1988)

(“[R]epresentations by counsel not made under oath and not subject to cross-

examination, absent a stipulation, are not evidence.” (citation omitted)).

Accordingly, the reliance upon the representations of counsel, in an evidentiary

context, undermines procedural due process guarantees by divesting the opposing

party of a full, fair, and meaningful opportunity to be heard. See Haywood v.

Bacon, 248 So. 3d 1254, 1256 (Fla. 5th DCA 2018) (reversing a final judgment of



                                         6
modification as to a parenting plan, holding it was a denial of due process to enter

a final order without allowing the mother to complete a cross-examination and

present rebuttal evidence at an evidentiary hearing to determine the best interest of

the children); Bielling v. Bielling, 188 So. 3d 980, 981 (Fla. 1st DCA 2016)

(reversing an order establishing a new parenting plan and suspending the father’s

child support obligation, finding the trial court’s “entry of an order without

allowing the parties to complete presenting evidence and argument constituted a

denial of due process.” (citations omitted)).

      Here, the mother concedes that her presentation at the final hearing was

restricted to the representations of counsel. Nonetheless, she contends the father

waived an objection to the deficiency of the proceeding, as the court effectively

negotiated an informal settlement between the parties. Although we are cognizant

of the efforts expended by the trial court in seeking an efficient and conciliatory

resolution of the matter, we are unpersuaded by this argument, as the record

reflects the father repeatedly expressed his vehement disagreement with the

characterization of the proffered evidence and the informal procedure employed by

the trial court at the final hearing. In any event, “[a] denial of [procedural] due

process constitutes fundamental error that may be raised for the first time on

appeal.” Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 (Fla. 3d DCA

2018) (citations omitted).



                                          7
                                  CONCLUSION
      We conclude the trial court deprived the father of procedural due process in

relying solely upon the representations of counsel in support of its determinations

of parental responsibility, timesharing, and child support. See Julia v. Julia, 146

So. 3d 516, 520-21 (Fla. 4th DCA 2014) (holding that the wife was “denied a full,

fair, and meaningful opportunity to be heard” at a final hearing, where the wife

was not allowed to fully present her case); see also Minakan v. Husted, 27 So. 3d

695, 699 (Fla. 4th DCA 2010) (“Even if [a party’s] evidence would not have

impressed the court, a party has the right to present evidence and to argue the case

at the conclusion of all the testimony.” (citation omitted)).       Accordingly, we

reverse final judgment of paternity and remand for a new adjudicatory hearing.3

      Reversed and remanded.




3  In recognition of tenets of judicial restraint, we do not reach the remaining
assignments of error. See PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d 786, 799
(D.C. Cir. 2004) (Roberts, J. concurring) (“[I]f it is not necessary to decide more, it
is necessary not to decide more.”).

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