Campana v. Trabold

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

MARIA CAMPANA,

Appellant,

v.

MICHAEL TRABOLD,

Appellee.

No. 2D2024-0216

December 18, 2024

Appeal from the Circuit Court for Hillsborough County; Nancy L. Jacobs,

Judge.

Mark G. Rodriguez of Mark G. Rodriguez, P.A., Tampa, for Appellant.

Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellee.

SLEET, Chief Judge.

Maria Campana (the Mother) challenges the trial court's nonfinal

order entering a no contact order between the Mother and Michael

Trabold (the Father). On appeal, the Mother argues that the trial court

erred by entering the no contact order and effectively awarding exclusive

use and possession of the parties' jointly owned home to the Father when

there was no pleading or motion that requested such relief. Because the

trial court improperly awarded relief that neither party pled, we reverse.

I. BACKGROUND

The Mother and Father, though unmarried, jointly own a home in

Hillsborough County where they lived with their two minor children. On

September 3, 2023, following a domestic violence incident, 1 the Mother

unilaterally moved with the children to Ohio.

On October 3, 2024, the Father filed a verified petition to establish

paternity, timesharing, and other relief as well as another motion for

timesharing and a pickup order to return the children to Florida. The

Mother filed a counterpetition to determine paternity, timesharing, and

child support. None of the pleadings mentioned a no contact order or a

request for exclusive use and possession of the parties' jointly owned

home.

During opening statements at the hearing, the Father for the first

time indicated that he would stipulate to a no contact order, even though

such relief was not included in any of his pleadings. Then during the

Mother's testimony, she was asked if she had a "desire" to live in the joint

home again, and she indicated "no." After the parties' testimony, the

Father stated that he was seeking to remain in the home and repeated

that he would agree to a no contact order. Without discussing the terms

of the potential no contact order, the trial court asked the Mother if she

had any objections and stated, "I can't imagine that there would be any

objection to a no contact order; is that correct?" The Mother responded

1 The Mother testified extensively as to her allegations of domestic

violence against the Father that left her "afraid for [her] life and [the]

safety of [her] and [her] children."

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with a qualified agreement stating, "[W]ithout any limitation to other

remedies correct."

The trial court then heard closing arguments from both sides

during which the Father made clear that he sought the return of the

children to Florida and fifty-fifty week-on, week-off timesharing. He also

sought to remain in the joint home, citing the Mother's prior testimony

that she had no desire to live there, and repeated that he agreed to a no

contact order. The Mother on the other hand argued that the court was

without jurisdiction to enter a return order because the parties were

never married and paternity was not established under the relevant

statute. She further argued that as the natural mother, she had primary

care, custody, and control of the children. However, the trial court

determined that paternity had been established, ordered that the

children be returned, and then began to discuss timesharing.

When the Mother expressed concerns over her living situation

without employment in Florida, the trial court explained that it was

ordering that the children be returned to Florida but that it was not

forcing her to return and that because she previously said that she did

not want to live in the jointly owned house, she did not have to. She

immediately responded:

If my children are being forced to move back to Florida, I am

going to live with my children. I am not going to leave them.

I will not live separately from them. I would like to live in my

home with my children if my children are going to have to

move back to Florida.

Thus, despite her initial testimony to the contrary, once she heard that

the children were required to return to Florida, she unequivocally

expressed her desire to live in her home with her children. She explained

that she did not have anyone in Hillsborough County with whom she

could temporarily stay and asked if the court was awarding the Father

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sole use and possession of the home without it being sought in the

pleadings. The trial court explained that it was not awarding the home

to either party but then pointed to the Mother's initial testimony that she

did not desire to live in the house—ignoring her most recent statement to

the contrary—to then say that the Father could live there if he so chose.

Thereafter, while discussing the exchange of the children, the trial

court pointed out that the parties agreed to a no contact order so they

could not directly exchange the children. The Mother expressed that

such would be unworkable because there would be an issue if she

wanted to go into the home while the Father was there. The trial court

again pointed to the Mother's testimony that she did not wish to live

there and stated that "she can get her own place set up." The parties

continued to discuss the timesharing logistics, and toward the end of the

hearing, the trial court again expressed that it was not awarding the

house, again pointed to the Mother's testimony, and again said that the

Father could live there. When the Mother asked for clarification on

whether she could go into the home if she wanted to, the trial court

responded:

No. She said she doesn't want to live there. Why would she

want to go in the home? I mean, I'm saying there's a no

contact order. So why would she -- let's not stir the pot. Why

does she want to go into the home if potentially he's living in

the home and she's accusing him of domestic violence against

her? Why even cause -- why even do that?

The court continued to question why she would want to enter the home

and concluded by stating: "I'm not making an award of [the home], and

she shouldn't just be going in there just for the heck of it, no. Because

she's indifferent and doesn't want to go live there, then there's no reason

for her to go there."

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A few weeks later, the trial court entered the order on appeal which

required shared parental responsibility with the parents exercising week-

on, week-off timesharing. The order also included a "Joint Stipulated No

Contact Order" provision requiring among other things that neither party

"[g]o to or within 500 feet of where the other [p]arty lives." And regarding

the joint home, the trial court determined that it was in the best interests

of the children to stay at the home. It once again noted the Mother's

testimony that she did not want to stay in the home and stated that it

was "not entering an order as to what parent can stay in the house but

caution[ed] the Mother on returning to the home that she said she didn't

want to live in."

The Mother filed a motion for reconsideration, arguing that the

Father's motion did not seek exclusive use and possession of the home or

a no contact order. Cf. Hayes v. Norman Harris Servs., Inc., 198 So. 3d

716, 718 (Fla. 2d DCA 2016) ("While counsel for the Hayes could have

done a better job of informing the court that a separate homestead

objection remained, counsel clearly did so in a timely motion for

rehearing."). The trial court did not rule on the motion.

II. ANALYSIS

On appeal, the Mother argues that the trial court erred by entering

the no contact order and effectively awarding exclusive use and

possession of the parties' jointly owned home to the Father when there

was no pleading or motion that requested such relief. We agree.

As an initial matter, we note that even though the trial court's

order stated that it was not entering an order as to which parent could

stay in the house, the order nonetheless has the effect of awarding

exclusive use and sole possession to the Father. In particular, the order

"caution[ed] the Mother on returning to the home that she said she didn't

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want to live in." This was despite the fact that the Mother unequivocally

stated that she wanted to live in the home with the children.

Additionally, the no contact order requires that neither party "[g]o to or

within 500 feet of where the other [p]arty lives." And as the Father

testified, he lives in the joint home. Thus, without a provision allowing

the Mother to enter, the no contact order prevents her from doing so.

Furthermore, during the hearing, when the Mother sought clarification

as to whether she could go into the home with the no contact order in

place, the trial court explicitly answered "no." Therefore, we conclude

that despite the court's statement to the contrary, it effectively awarded

the Father exclusive use and possession of the home by entering the no

contact order.

"It is well settled that an order adjudicating issues not presented by

the pleadings, noticed to the parties, or litigated below denies

fundamental due process." Neumann v. Neumann, 857 So. 2d 372, 373

(Fla. 1st DCA 2003). Consequently, courts are without authority to

award relief not requested by the pleadings and motions of the parties.

Daniels v. Sorriso Dental Studio, LLC, 164 So. 3d 778, 782 (Fla. 2d DCA

2015) (citing Worthington v. Worthington, 123 So. 3d 1189, 1190-91 (Fla.

2d DCA 2013)); see also Eadie v. Gillis, 363 So. 3d 1115, 1117 (Fla. 5th

DCA 2023) ("[A] court violates due process when it awards a remedy that

a party did not seek."). Here, the record is clear and the Father does not

dispute that neither his petition nor his motion requested the no contact

order or exclusive use and possession of the jointly owned home.

Instead, the Father argues that the issue was tried by consent.

"An issue is tried by consent where the parties fail to object to the

introduction of evidence on the issue." Eadie, 363 So. 3d at 1118

(quoting Dep't of Revenue v. Vanjaria Enters., Inc., 675 So. 2d 252, 254

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(Fla. 5th DCA 1996)). In determining whether an issue was tried by

consent, we consider (1) "whether there was 'a fair opportunity to defend'

the issue" and (2) "whether the defending party 'could have offered

additional evidence' if the issue had been included in the operative

pleading or motion." Id. (quoting Anchor Prop. & Cas. Ins. v. Trif, 322 So.

3d 663, 670 (Fla. 4th DCA 2021)).

The Father specifically argues that after he announced during

opening statements that he would agree to the entry of a no contact

order, the Mother had the entire proceeding to argue against such an

order and yet when the court asked if she objected to a no contact order,

she did not do so. His argument here fails for two reasons. First,

although the Father may have mentioned the no contact order during

opening statements, there was no issue to defend at that point. The

purpose of the hearing was to determine whether the children were to be

returned and to set up a timesharing schedule if so. The Mother's stance

from the beginning of the hearing was that the children should remain

with her in Ohio. Thus, the Father's mention at the beginning of the

hearing that he would agree to a no contact order did not present an

issue where the Mother was proceeding as if she would remain in Ohio

with the children. This is especially so because the terms of such an

order were never raised or discussed. Notably, at the same time the

Father first mentioned the no contact order, he also noted that he would

be agreeable to the Mother returning to Florida with the children and

staying in the jointly owned home. Thus, at the beginning of the hearing,

there was no reason for the Mother to believe that a no contact order,

which ostensibly would be put in place to protect her as the domestic

violence victim, would ultimately have the effect of keeping her out of her

own home. Therefore, at that point, there was no issue to defend. In

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fact, for purposes of trial by consent, the issue did not arise until the end

of the hearing when it became clear that the no contact order would have

the effect of awarding the Father exclusive use and possession of the

parties' jointly owned home. And at that point, it is clear that the Mother

did not have a fair opportunity to defend the issue.

Second, the Father's argument fails because, despite his claim that

the Mother failed to object to the no contact order, the record is clear

that once she became aware of the effect of the no contact order, and

therefore the issue, she did in fact object. To be clear, despite the trial

court's repeated reliance on the Mother's initial testimony to conclude

that she did not wish to live in the jointly owned home, when the trial

court ruled that the children were to be returned, the Mother responded:

If my children are being forced to move back to Florida, I am

going to live with my children. I am not going to leave them.

I will not live separately from them. I would like to live in my

home with my children if my children are to have to move

back to Florida.

Thereafter, when the trial court pointed out that the parties agreed to a

no contact order and that they could not directly exchange the children,

the Mother expressed that such would be unworkable because there

would be an issue if she wanted to go into the home and the Father was

there. Thus, the Mother did not consent to the no contact order.

We conclude that the trial court erred in entering the no contact

order where it was not included in the pleadings, was not noticed prior to

the hearing, and was not tried by consent. Accordingly, we reverse and

remand for further proceedings. See Martin v. Lee, 219 So. 3d 1024,

1025 (Fla. 1st DCA 2017) (reversing an order that granted the husband's

ore tenus request for a no contact order during the hearing where he did

not request the no contact order in the pleadings).

Reversed and remanded.

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SMITH, J., Concurs.

ATKINSON, J., Dissents.

Opinion subject to revision prior to official publication.

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