Can the Trial Court Order Relief That Was Not Pled in an Orlando, Florida Area Divorce?
- May 24, 2021
- ontarget
- Divorce
- Florida law
- 0 Comments
Whether the trial court can order relief that was not pled in an Orlando, Florida divorce has been asked and answered on many occasions. For example, the generic request included in a prayer for relief is insufficient to cure a failure to plead an issue. The generic, boilerplate language in the prayer for relief in a motion does not provide the necessary request for relief to cure the lack of notice. Requests for such other relief as the court deems just and proper under the circumstances in the wherefore clauses of counterclaims were insufficient to afford meaningful notice of issue not specifically pleaded.
Trial by Consent
The trial court cannot grant a party relief that was not pled. The only way that could happen is trial by consent. That means the other side does not object and allows the court to rule on the issue not properly pled before the court. However, if the attorney objects to the court trying an issue that was not pled before the court, then the trial court cannot rule on that issue. See Fla. Fam. L. R. P. 12.190 (a).
When issues not raised by the pleadings are tried by express or implied consent, they will be treated in all respects as if they had been raised in the pleadings. However, implied consent does not exist when the opposing party objects to the argument or the introduction of the evidence.
Related Florida Cases
See Fleming v Fleming, 742 So. 2d 843, 844 (Fla. 1st DCA 1999): the issue of rotating custody was not tried by implied consent because the Former Wife raised an appropriate objection. See Todaro v Todaro, 704 So. 2d 138, 139 (Fla. 4th DCA 1997): it cannot be said that the issue was tried by implied consent where the Former Wife objected to the trial court hearing evidence on matters that were not properly pled. Hemraj v. Hemraj, 620 So. 1300, 1301 (Fla. 4th DCA 1993).
If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation.
This article is for informational purposes only and does not form an attorney client privilege.