REYNOLDS v. REYNOLDS (2021)

Appellant seeks review of the trial court's order requiring Appellant to engage in custody time-sharing with Appellee. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iii)(b). After determining that Appellant's abscondence with the parties’ shared child was egregious, the trial court denied Appellant the opportunity to present legal argument or evidence before it made an initial custody determination. Appellant claims she was denied due process. We agree.

The parties and their child lived together for eight years before Appellant, in August 2019, without notice to Appellee, moved from Florida to Washington with the couple's then-eight-year-old daughter. Appellee petitioned for dissolution of the marriage in November 2019. From August 2019 until August 2020, Appellee did not know the whereabouts of his child. At the time of the hearing, Appellee had not seen his daughter in almost two years and had been denied any parental communication. The trial court's strong reaction to these facts is understandable. On its face, Appellant's conduct indeed appears egregious. See Ayyash v. Ayyash, 700 So. 2d 752 (Fla. 5th DCA 1997); § 787.03(2), Fla. Stat. (2021).

The trial court could have granted Appellee emergency custody without taking evidence or argument. See Loudermilk v. Loudermilk, 693 So. 2d 666, 667–68 (Fla. 2d DCA 1997) (“Under extraordinary circumstances, a trial court may enter an order granting a motion for temporary custody of a child without affording notice to the opposing party.”). However, an emergency order must be followed by an opportunity to be heard as soon as possible. Id. at 668; see also Wilson v. Roseberry, 669 So. 2d 1152, 1154 (Fla. 5th DCA 1996) (“[T]he trial court should make every reasonable effort to allow both parties to be heard prior to issuing an emergency modification order. If this is not possible, however, an opportunity to be heard should be provided as soon thereafter as possible.”). But the trial court's judgment purports to determine the custody arrangement indefinitely and did not contemplate a follow-up hearing. Instead of an emergency order followed by a prompt hearing, the trial court conducted a partial hearing, did not accept evidence or argument on the required time-sharing factors, and entered a temporary time-sharing order.

The trial court quite reasonably required the child's immediate return to Florida, but it must conduct a hearing and make the requisite findings before making the temporary custody determination. While “a hearing on temporary custody may be more abbreviated than a hearing on permanent custody,” the trial court “must receive evidence sufficient to assure the best interests of the child on a temporary basis.” Williams v. Williams, 845 So. 2d 246 n.1 (Fla. 2d DCA 2003). Appellant was denied the opportunity to present such evidence, and the trial court did not consider any. Both errors require reversal. See Owens v. Owens, 315 So. 3d 163, 164 (Fla. 1st DCA 2021) (“[T]he court cannot deprive Appellant of a full hearing, no matter how compelling it considers portions of the evidence.”); Foster v. Pearson, 925 So. 2d 1136, 1137 (Fla. 5th DCA 2006) (“[E]ven temporary changes of custody must be supported by findings as to both substantial change in circumstances and the best interests of the child.”).

We reverse the trial court's order and remand for a new hearing.

Reversed and Remanded.

Per Curiam.

Rowe, C.J., and B.L. Thomas and Long, JJ., concur.