Najeeb Khan v. Department of Revenue
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2005
NAJEEB KHAN,
Appellant,
v.
DEPARTMENT OF REVENUE,
Appellee.
No. 4D03-2607
[April 13, 2005]
FARMER, C.J.
In the underlying domestic relations case, a mother filed a motion for
unspecified sanctions against the father for failing to comply with an
outstanding order compelling discovery. At the end of a hearing on that
motion, at which the father was not present or represented, the trial
court entered what is in effect a default final judgment awarding child
support and arrearages to the mother. Appealing from a subsequent
order denying his motion for relief from the judgment, the father argues
that he had no notice that evidence on the merits of child support would
be taken at the hearing on the mother’s motion for sanctions in regard to
discovery violations, and that in any case child support is not an
appropriate sanction for failing to provide discovery. Although the
Department of Revenue (DOR) appeared on behalf of the former wife, it
has not filed an answer brief. We reverse.
DOR had filed a petition to modify a final judgment, seeking an award
of child support. In DOR’s motion for sanctions arising from the father’s
failure to comply with discovery requests and an existing order
compelling discovery, DOR requested only “that the Court grant its
Motion for Sanctions and impose sanctions upon the Respondent
pursuant to Rule of Civil Procedure 1.380(b).” Nowhere in the motion
itself, or its companion notice of hearing, was there any suggestion that
evidence would be taken on the merits of the underlying issue of child
support obligations and arrearages.
It is an essential part of the concept of due process that any relief
granted at a hearing be within the kind of relief sought by the notice
given for hearing. As the court said under very similar circumstances:
“A court cannot modify a child support award unless the
issue is presented . . . with sufficient notice and an
opportunity for the nonmoving party to be heard. Notice of a
contempt proceeding does not provide sufficient notice that a
court may modify a previously imposed child support
obligation.” [e.s.]
Dep’t of Revenue v. Leonardi, 696 So.2d 472, 472 (Fla. 2d DCA 1997); see
Dep’t of Revenue v. Kiedaisch, 670 So.2d 1058 (Fla. 2d DCA 1996) (child
support order could not be modified at hearing on mother’s motion for
contempt as father did not give notice to mother that modification would
be in issue at hearing); Hammond v. Hammond, 492 So.2d 837 (Fla. 5th
DCA 1986) (notice of hearing must advise parties of specific issue that
will be considered at hearing); see also Fla. Fam. L. R. P. 12.285(j) (“If the
case involves child support, the parties shall file with the court at or
prior to a hearing to establish or modify child support a Child Support
Guidelines Worksheet in substantial conformity with Florida Family Law
Rules of Procedure Form 12.902(e). This requirement cannot be waived
by the parties.” [e.s.]).
Nor could the trial court properly award child support as a sanction
for a discovery violation. See Edwards v. Edwards, 634 So.2d 284 (Fla.
4th DCA 1994) (“The trial court has discretion to sanction a party who
refuses to comply with a discovery order, but that discretion is limited by
the provisions of rule 1.380(b), Florida Rules of Civil Procedure.
Reduction of child support is not one of the authorized sanctions
enumerated under rule 1.380(b).”). The court has ample authorized tools
to deal with parents refusing to cooperate during discovery in child
support litigation.
Reversed.
STONE and MAY, JJ., concur.
*
*
*
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Lawrence L. Korda, Judge; L.T. Case
No. 97-012706 4193.
Theodore R. Dempster, Miami, for appellant.
2
Charles J. Crist, Jr, Attorney General, and William H. Branch,
Tallahassee, for appellee.
Not final until disposition of any timely filed motion for rehearing.
3
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