ELLEN ROSE FITZGERALD F/K/A ELLEN ROSE DOSTIE v. JAMES JOSEPH DOSTIE, JR.
Docket 6D2024-1990
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- Florida
- Court
- District Court of Appeal of Florida
- Type
- Opinion
- Case type
- Family
- Disposition
- Affirmed in Part, Reversed in Part
- Docket
- 6D2024-1990
Appeal from a circuit court final judgment on a supplemental petition to modify a parenting plan regarding relocation
Summary
The Sixth District Court of Appeal reversed part of a trial court order in a parenting-plan modification case. Ellen-Rose Fitzgerald sought temporary and permanent relief to relocate with her children; the hearing was noticed only for temporary relief. The trial court nonetheless entered an order granting permanent relief. The appellate court held that granting relief beyond the noticed subject violated due process, affirmed the portion granting temporary relief, reversed the portion granting permanent relief, and remanded for a properly noticed final hearing on permanency.
Issues Decided
- Whether a trial court may grant permanent relief at a hearing that was noticed only for temporary relief
- Whether granting relief beyond the scope of the noticed hearing violated the appellant's due process rights
Court's Reasoning
The court applied the principle that a court generally cannot decide matters that were not properly noticed for hearing and not pleaded by the parties. Because the July 17, 2024 hearing notice specified only temporary relief, entering a permanent order exceeded the scope of notice and deprived Fitzgerald of adequate notice and opportunity to be heard. Therefore the appellate court affirmed the temporary relief portion but reversed the permanent relief and remanded for a final hearing on permanence.
Authorities Cited
- Cano v. Cano140 So. 3d 651 (Fla. 3d DCA 2014)
- Hart v. Hart458 So. 2d 815 (Fla. 4th DCA 1984)
- Lentz v. Lentz414 So. 2d 292 (Fla. 2d DCA 1982)
Parties
- Appellant
- Ellen-Rose Fitzgerald f/k/a Ellen-Rose Dostie
- Appellee
- James Joseph Dostie, Jr.
- Judge
- Hal C. Epperson, Jr.
- Attorney
- Allison M. Perry
- Attorney
- Stacy J. Ford
Key Dates
- Appeal decision date
- 2026-04-16
- Noticed hearing date
- 2024-07-17
What You Should Do Next
- 1
Prepare for final hearing
The party seeking permanent relief should request and comply with a new hearing notice specifically stating the request for permanent relocation and prepare evidence addressing permanency factors.
- 2
Consult counsel about appeal options
Either party should consult their attorney promptly about whether to file a motion for rehearing in the district court or seek further appellate review, observing all deadlines.
- 3
Monitor and respond to notice
The opposing party should ensure they receive proper notice of the remanded final hearing and prepare to object if any relief beyond the noticed scope is attempted.
Frequently Asked Questions
- What did the appeals court decide?
- The court affirmed the trial court's temporary relief but reversed the permanent relocation order because the hearing was only noticed for temporary relief, and remanded for a proper final hearing.
- Who is affected by this decision?
- The parties to the case—Ellen-Rose Fitzgerald and James Dostie—are affected, and any court that attempts to grant relief beyond the scope of a noticed hearing may be constrained by this ruling.
- What happens next?
- The trial court must hold a new, properly noticed final hearing on Fitzgerald's request for permanent relocation and may not enter permanent relief without giving proper notice and opportunity to be heard.
- On what legal grounds was the order reversed?
- The reversal was based on the rule that courts cannot decide matters not noticed for hearing, and that granting relief beyond the scope of notice violates due process.
- Can this decision be appealed further?
- A party could seek further review, such as filing a motion for rehearing in the district court or seeking discretionary review by the Florida Supreme Court, subject to applicable deadlines and standards.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 6D2024-1990
Lower Tribunal No. 2022-DR-000920
_____________________________
ELLEN-ROSE FITZGERALD f/k/a ELLEN-ROSE DOSTIE,
Appellant,
v.
JAMES JOSEPH DOSTIE, JR.,
Appellee.
_____________________________
Appeal from the Circuit Court for Osceola County.
Hal C. Epperson, Jr., Judge.
April 16, 2026
SMITH, J.
Ellen-Rose Fitzgerald (“Fitzgerald”) appeals a final judgment on a
supplemental petition for modification of a parenting plan, arguing that the trial court
erred in ordering permanent relief following a hearing noticed for temporary relief.
We agree and reverse.
Fitzgerald’s supplemental petition requested both temporary and permanent
relief as to relocation with her children following an out-of-state job offer. Prior to
the hearing, Fitzgerald received a hearing notice clearly stating the following:
“MATTERS: RESPONDENT’S SUPPLEMENTAL PETITION TO PERMIT
RELOCATION WITH MINOR CHILD – TEMPORARY RELIEF. Date: July 17,
2024.” However, from this temporary relief hearing, the trial court issued an order
granting permanent relief. Fitzgerald filed a motion for rehearing, pointing out that
among other issues, there was a discrepancy between the hearing notice and relief
granted. The trial court’s order on rehearing addressed some of Fitzgerald’s bases
for rehearing, but did not address the issue of the permanency of the order.
“[T]he general rule is that a court cannot determine ‘matters not noticed for
hearing and not the subject of appropriate pleadings.’” Cano v. Cano, 140 So. 3d
651, 652 (Fla. 3d DCA 2014) (quoting Hart v. Hart, 458 So. 2d 815, 816 (Fla. 4th
DCA 1984)); see also Lentz v. Lentz, 414 So. 2d 292, 292 (Fla. 2d DCA 1982).
Failure to provide adequate notice of the relief to be granted is a clear due process
violation. Hart, 458 So. 2d at 816.
The July 17, 2024 hearing was noticed only for temporary relief, yet the final
order produced a permanent result. The relief granted was beyond the scope of the
notice of hearing. Accordingly, we affirm the trial court’s order to the extent it grants
temporary relief, we reverse the order to the extent it grants permanent relief, and
we remand with directions for the trial court to conduct a final hearing on the matter
of permanent relief relative to Fitzgerald’s relocation request.
AFFIRMED in part, REVERSED in part, and REMANDED.
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STARGEL, WOZNIAK and SMITH, JJ., concur.
Allison M. Perry, of Florida Appeals, P.A., Tampa, for Appellant.
Stacy J. Ford, of Litigation & Appeals Advocacy, PLLC, St. Cloud, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF FILED
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