# Third District Court of Appeal

State of Florida

Opinion filed December 28, 2016

. Not final until disposition of timely filed motion for rehearing.

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No. 3D15-1042

Lower Tribunal No. 14-20975

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### Xernona Pinnock

, Appellant,

vs.



### Warren Whyte

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller

, Judge.

Scanziani Law Group, LLC and Denise Martinez-Scanziani and John

Scanziani, for appellant.

Warren Whyte, in proper person.

Before ROTHENBERG, LAGOA, and EMAS, JJ.

LAGOA, J.Xernona Pinnock (“Pinnock”) appeals from a final judgment of paternity,

paternal responsibility, parenting plan, timesharing schedule and child support

(“Final Judgment”). 1

Because Pinnock’s due process rights were violated by the trial court

expanding the scope of the scheduled hearing without notice, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Warren Whyte (“Whyte”), filed a Petition for the Determination

of Paternity. Pinnock filed an answer to the petition. The trial court referred the

parties to mediation, and the parties reached a partial mediated settlement

agreement. The following remaining contested issues were not part of the

mediated settlement agreement: Winter Break, Spring Break, and Summer time

timesharing; child support; and allocation of the child tax exemption.

On February 3, 2015, the trial court entered an Order Scheduling

Uncontested Final Hearing or in the Alternative Setting Status Conference. The

order specifically stated that “ [i]f an answer has been filed, this hearing will

serve as a STATUS CONFERENCE

. ” (emphasis in original).

Both Whyte and Pinnock attended the scheduled hearing. A review of the

hearing transcript shows that the trial court

— notwithstanding Pinnock’s filed

1 After failing to file his answer brief, this Court entered an order directing Whyte

to file an answer brief or be subject to sanctions. No answer brief was filed and

this Court, therefore, entered an Order precluding Whyte from filing an answer

brief.

2answer to the petition

— proceeded to conduct a final hearing and entered the Final

Judgment. Following the entry of the Final Judgment, Pinnock filed a motion for

rehearing, which the trial court denied in a written order. In its order, the trial

court found that: (1) the motion was untimely 2 ; (2) a mediated agreement had been

reached by the parties; and (3) “[t]he few areas of disagreement were resolved at

the UCD/Status Conference.” This appeal ensued.

II. ANALYSIS

The facts of this case are identical to those in Shah v. Shah

, 178 So. 3d 70

(Fla. 3d DCA 2015), where this Court reversed the trial court’s entry of a final

judgment of dissolution of marriage. In Shah

, as in the case before us, the trial

court issued a scheduling order that specifically stated that “[i]f an answer has been

filed, this hearing will serve as a STATUS CONFERENCE.” 178 So. 3d at 71.

Notwithstanding the wife’s pro se reply to the petition for dissolution of marriage,

which the trial court correctly treated as an answer, the trial court conducted a final

hearing and orally granted the petition over the wife’s objections. The wife moved

for rehearing, which the trial court denied.

In reversing the trial court, this Court held that:

2 Pinnock’s motion for rehearing was timely as it was both filed and served on the

fifteenth day from the date of the filing of the Final Judgment. Rule 1.530(b), Fla.

R. Civ. P., requires that “[a] motion for new trial or for rehearing shall be served

not later than 15 days after the return of the verdict in a jury action or the date of

filing of the judgment in a non-jury action.”

3Due process requires proper notice and an opportunity to

be heard. The trial court’s July 30, 2014 notice of hearing

notified the parties that if an answer to the petition had

been filed, the hearing would serve as a status conference

rather than a final hearing. The trial court, however,

changed the nature and expanded the scope of the

scheduled hearing without proper notice. In doing so, the

court violated the wife’s due process rights.

Id.

Here, as in Shah

, the trial court’s order notified the parties that if an answer

to the petition had been filed, the hearing would serve as a status conference rather

than a final hearing. Notwithstanding Pinnock’s answer, the trial court proceeded

to final hearing and entry of final judgment. Because Pinnock’s due process rights

were violated by the trial court’s expansion of the scope of the scheduled hearing

without notice, we reverse the Final Judgment of Paternity and remand for further

proceedings consistent with this opinion. 3

3 Although we need not address the merits of the remaining issues raised by

Pinnock as we are vacating the Final Judgment, to assist the trial court on remand

we note that the trial court does not have the power to allocate the Federal Tax

Dependency Exemption directly. See Pullis v. Pullis

, 118 So. 3d 937 (Fla. 3d

DCA 2013). “The trial court can only ‘require the custodial parent to transfer the

exemption to the non-parent through the execution of a waiver. However, the

transfer of the dependency exemption to the non-custodial parent is conditioned on

that parent being current with support payments.’” Id. at 941 (quoting Robertson

v. Bretthaue r, 712 So. 2d 1140, 1141 (Fla. 3d DCA 1998)).

Additionally, we note that a court’s imputation of income must be supported

by competent, substantial evidence. See Harbus v. Harbus

, 874 So. 2d 1230 (Fla.

4th DCA 2004). The trial court “is required to set forth the amount and source of

the imputed income. If the court fails to do so, the case must be reversed and

remanded for specific findings of fact.” Id. at 1231.

4Reversed and remanded.

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