CIVIL PROCEDURE: Final Hearing
The parties were divorced in 2009. The father was awarded custody of the parties’ minor child and the mother was awarded visitation.
On January 10, 2012, the mother filed a complaint seeking a modification of custody. The trial court scheduled the matter for hearing on February 2, 2012. After the hearing date was set, the mother requested that the trial court consider her request for pendente lite custody of the child at the February 2, 2012, hearing.
The father filed a response in opposition to the mother’s custody request. The trial court received evidence at the February 2, 2012, hearing. On March 5, 2012, the trial court entered a “final modification judgment” ordering that the parties share joint legal and joint physical custody of the child. The father filed a motion seeking to clarify whether that order was a final judgment or a pendente lite order.
The court responded by entering an order stating that the matter had been adjudicated on the merits and that the March 2012 order was a final order.
The father appealed. Reversed.
The father contended that his due process rights were violated by the entry of the order after the case was set for pendente lite hearing. In this case, the parties had notice of the claims that the other asserted. However, the trial court scheduled the hearing to occur less than one month after the petition for modification was filed. The order gave no indication that the hearing would be a final one on the merits. This case does not involve a violation of due process rights. “However, there was no indication in the record that the trial court intended to consider the parties’ claims seeking a final custody determination at the February 2, 2012.