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Denial of Due Process

A denial of due process can come in many different forms.  When an incarcerated spouse filed a timely motion to appear at his final hearing by telephone, and his motion was denied, he was effectively denied due process of law. The trial court committed reversible error in Rodriquez v. Rodriquez when this specific request to appear by telephone was denied.

The importance of clearly setting forth the nature of a specific hearing, in either a court order setting a matter for a hearing or in a notice of hearing cannot be understated.  If a trial court conducts a proceeding that expands beyond what was noticed for that particular hearing, over a litigant’s objection, a denial of due process will occur.

In Shah v. Shah, the trial court conducted a final hearing for dissolution of marriage, in spite of the fact that the case was noticed for a status conference, and not a final hearing.  The court’s notice to the litigants clearly stated that either a final hearing or a status conference would be conducted, however, if the pro se wife filed an answer than the court would only conduct a status conference.  In spite of the fact that the pro se wife did file an answer, the court went ahead anyways and granted a dissolution of marriage.  The appellate court stated that under the circumstances of the facts presented in this case, a denial of due process had occurred.  A fundamental prerequisite to due process requires proper notice and an opportunity to be heard.

If you feel that your rights have been violated, contact Alan R. Burton, an experienced Boca Raton divorce attorney, at 954-295-9222 who can assist you in defending your due process rights.

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