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 final judgment on a supplemental petition for modification of a parenting plan in the Circuit Court for Osceola County.
Summary
The Sixth District Court of Appeal reversed part of a trial court order in a parenting-plan relocation case because the trial court granted permanent relocation relief after a hearing that had been noticed only for temporary relief. The appellant had requested both temporary and permanent relief, but the notice for the July 17, 2024 hearing specified only temporary relief. The appellate court held that granting permanent relief without proper notice violated due process. The court affirmed the temporary relief, reversed the permanent-relief portion, and remanded for a proper final hearing on permanent relocation.
Issues Decided
- Whether a trial court may enter a permanent relocation order following a hearing that was noticed only for temporary relief.
- Whether granting relief beyond the scope of the hearing notice violates due process.
Court's Reasoning
The court relied on the principle that a court cannot decide matters not noticed for hearing or not pleaded by the parties, and that failure to provide adequate notice of the relief to be granted is a due process violation. Because the July 17, 2024 hearing was clearly noticed for temporary relief only, the trial court exceeded the scope of the notice by issuing permanent relief. That procedural defect required reversal of the permanent portion while leaving temporary relief intact and remanding for a final hearing on permanency.
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
- Appellate decision date
- 2026-04-16
- Hearing date noticed
- 2024-07-17
What You Should Do Next
- 1
Notice a final hearing on permanent relief
The trial court should schedule and properly notice a final hearing that explicitly includes consideration of permanent relocation so both parties have an opportunity to prepare and be heard.
- 2
Prepare evidence and arguments for permanency
Each party should compile and submit any evidence and witnesses relevant to the permanent relocation factors to present at the final hearing.
- 3
Consider appellate preservation
If a party disagrees with the forthcoming final order, they should preserve objections on the record and consult appellate counsel about potential review after the remand decision.
Frequently Asked Questions
- What did the appeals court decide?
- The court affirmed the trial court's temporary relief, reversed the part granting permanent relocation, and sent the case back for a proper final hearing on permanent relocation.
- Who is affected by this decision?
- The parties in this case—Ellen-Rose Fitzgerald and James Dostie Jr.—are directly affected; the decision also reinforces procedural protections for other parents in relocation disputes.
- Why was the permanent relief reversed?
- Because the trial court granted permanent relief at a hearing that had been noticed only for temporary relief, which deprived the appellant of proper notice and thus violated due process.
- What happens next?
- The trial court must hold a new final hearing specifically noticed for permanent relief on Fitzgerald's relocation request and then enter an order addressing permanency.
- Can this decision be appealed further?
- Yes; after the new final order is entered following the remand hearing, the aggrieved party may appeal that order in accordance with Florida appellate rules.
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 and WOZNIAK, 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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