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Preserving the Record for Appeal

Posted on Tue, Mar 22, 2011

1. MOTIONS FOR REHEARING

RULE 1.530(e)
- When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.
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Relocation, §61.13001, Florida Statutes

Posted on Tue, Mar 15, 2011

Abstract: A parent or any other person entitled to timesharing with a minor child cannot change their principal residence by fifty miles or more for a period of sixty consecutive days without either: 1. Seeking written agreement of persons entitled to timesharing of a minor child, or 2.  Filing and serving a petition to permit relocation with minor child. In either event, the person seeking to relocate must obtain prior court approval. A petition to permit relocation has specific statutory requirements, and if these are not contained in the pleading, then the relocation may be improper. Improper relocation with a minor child can be considered as a factor in modifying the parenting plan and an award of attorney’s fees. If the other person contests the relocation, they must file an answer objecting to relocation. The court will conduct a hearing on the matter and must make a determination based on the statutory factors in 61.13001(7)(a)-(k).  there is no presumption for or against relocation, but the person asking for relocation bears the burden of proving it is in the best interest of the child by a preponderance of the evidence. Florida case law states that the court must make a present-day determination and cannot approve a delayed relocation.

To whom does this statute apply?

The statute applies to legal parents, other persons entitled to timesharing, and even a parent appearing on the birth certificate of the child who is entitled to “access” or timesharing with the minor child. See definitions in § 61.13001(1).  This is broad applicability, and it goes beyond anyone who is the majority timesharing parent. So, even if the client is only getting every other weekend timesharing, he is still subject to the relocation restrictions contained in this section. The statute was broadened in 2009 to require anyone with timesharing to relocate pursuant to this statute. See, Fla. Fam. Law., § 32.30 Rights and Duties of Parents, ¶ 7.

Ø   "Other person" means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.

Ø  “Parent” – Any person who is entitled to access to or timesharing with the minor child subject to the Court’s jurisdiction.  Can qualify as a parent by: court order, written agreement of parties, or by appearing on birth certificate. 61.13001(1)(d).

In what situations would this statute limit a person’s right to relocate?

Relocation for this statute only occurs when someone entitled to timesharing has changed their principal residence over 50 miles from their prior address for over sixty consecutive days.

Ø  "Relocation" means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child. 61.13001(1)(e)

Arguably, a motion to compel return of the minor child before 60 consecutive days could be premature. This definition of relocation does not define relocation in terms of the child’s residence. Thus, a non-majority timesharing parent can be subject to 61.13001, but it is unlikely this parent will be forced to return, instead the court could craft other relief such as an upward modification of child support. See, e.g., Kuttas v. Ritter, 879 So.2d 3 (2nd DCA 2004) (Moving to another state when you have special needs children can constitute a substantial change for modification of child support).

What are the permissible ways to relocate with a minor child?

Method 1: Written Agreement of People entitled to timesharing, 61.13001(2)

-          Person wishing to relocate must enter into written agreement with the person entitled to timesharing.  The written agreement should evince the person entitled to timesharing consents to the relocation, provides a timesharing schedule, and if necessary, details transportation arrangements.

-          If there is any court order or pending action concerning timesharing, the parties must have the written agreement ratified by the court. This can be done without the necessity of an evidentiary hearing.

Method 2: Filing a Petition to Relocate with Minor Child

-          This is covered by Section 61.13001(3), and it contains many detailed specific requirements for this pleading. See  § 61.13001(3)(a)1. – 7.  Requirements. An interesting one is that if the relocation is based upon a written job offer, it must be attached to the petition as an exhibit.

-          The pleading should follow the statutory requirements very strictly, because: 61.13001(3)(e), provides that relocating without complying with this subsection subjects the person to contempt, proceedings to compel return of the minor child, and be used as a factor in determining whether to allow relocation, whether to modify the parenting plan, and as a basis to order attorney’s fees.

-           The petition should be served upon every person who is entitled to timesharing, and it should be sworn under penalty of perjury by the petitioner.

-          The responding party has twenty days to file and serve an answer objecting to the relocation; otherwise, the court shall presume that the relocation is in the best interest of the child. 61.13001(3)(a)7.  If no objection has been filed/ served, then you should probably request an exparte hearing to obtain a court order permitting relocation.

How does one object to a petition to relocate?

-          If the non-relocating person objects to the relocation, they must file an answer objecting to relocation stating the specific factual basis for the prohibition against relocation and a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child. 61.13001(5). The objection must be filed and served upon the petitioner within twenty days of service of the petition to relocate. 61.13001(3)(a)7.

What factors will the Court consider in making a relocation determination?

The statutory factors are contained in their entirety in §61.13001(7)(a)-(k).  The Court inquires how relocation will affect the child and parents’ lives and the reasons for relocation. The Court may also engage in a full-fledged best interests of the child analysis as provided in § 61.13, Florida Statutes.

Does one have to show a substantial change in circumstances to warrant a relocation?

There is no presumption for or against relocation even if it will materially affect the current timesharing arrangement. 61.13001(7). However, the Third DCA has reversed a relocation because of a party’s failure to prove a substantial change in circumstances, but this may have been heavily influenced by the fact that the parents shared ‘rotating custody’ and the court applied prior law. Paskiewicz v. Paskiewicz [967 So. 2d 277 (Fla. 3d DCA 2007). The court must make a determination considering the statutory factors contained in 61.13001(7)(a) – (k). The party seeking relocation must prove it is in the best interest of the child by a preponderance of the evidence standard.

How soon should hearings be scheduled?

Contested relocations should be given priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed. § 61.13001(10). So, if time is of the essence, it may be wise to do a motion to permit temporary relocation with minor child.

Case Law Survey

1.      It is error for a Court to make a determination that a future relocation to happen in three years will be in the best interest of the child. The statute only permits a present-based analysis of the best interest of the child, and Court cannot make future, speculative based decisions concerning a delayed relocation. Arthur v. Arthur, 2010 Fla. LEXIS 41 (Fla. 2010).

2.      Court cannot allow a relocation and then reserve on the issue of establishing a substitute parenting plan/ timesharing arrangement. All issues concerning the best interest of the child must be made at the final hearing. Coyle v. Coyle, 8 So.3d 1271 (2nd DCA 2009).

3.      Relocation from Key West to Atlanta was proper. Mother showed that she had been the primary caretaker, her new husband had a job in Atlanta, she was offered a job there, and she had little career opportunities in Key West. Apparently, the Father relied on his mother to watch child frequently because he was busy working low-paying waiter jobs.  Basically, this court weighed heavily the potential increase in quality of life for the minor child and showed no presumption at all against relocation notwithstanding the Father’s unlikely continued, regular contact with the child. Miller v. Miller, 992 So. 2d 346, 2008 Fla. App. LEXIS 15114 (Fla. 3rd DCA 2008).

4.      Relocation to Texas should be denied  when evidence supported finding that Mother failed to demonstrate that the proposed move would improve the children's school, family, or even home life. Fredman v. Fredman, 960 So. 2d 52  (Fla. 2nd DCA 2007).

5.      Court cannot rely on the speculative hopes and aspirations of a parent who believes they have better career opportunities in another state. There was no error to deny relocation request when Mother had no job opportunities, merely thought she may go back to school, and could not show that the Father would have a meaningful relationship given substitute timesharing. Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007).

6.      A Court need not necessarily make findings to each statutory factor in a contested relocation. If the parties fail to present evidence regarding all of the factors, the court can properly use its discretion to allow relocation if it would nevertheless be in the best interest of the child. Norris v. Heckerman [972 So. 2d 1098 (Fla. 1st DCA 2008).

7.      In Re B.T.G., 993 So.2d 1140, (2nd DCA 2004) the proper inquiry is not whether the same frequency of contact can be maintained between the child and the non-relocating parent, but whether substitute timesharing/visitation will be adequate to foster a meaningful relationship.

Contact our team of divorce attorneys in Jacksonville, Florida, learn more about relocation, child custody, and spousal support.

By Kenny Leigh

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Legal Lesson: Rule 12.407 Testimony of Minor Children

Posted on Tue, Mar 15, 2011

FLORIDA HAS ADOPTED SPECIFIC RULES THAT GOVERN THE TESTIMONY AND APPEARANCE OF MINORS FOR DEPOSITIONS AND HEARINGS IN FAMILY LAW CASES. A PARTY WHO WISHES TO PRESENT THE TESTIMONY OF A MINOR CHILD MUST FIRST OBTAIN A COURT ORDER PERMITTING THE TESTIMONY, BASED ON A SHOWING OF GOOD CAUSE. EXCEPT IN EMERGENCIES, A MINOR CHILD MAY NOT ATTEND A HEARING, BE SUBPOENAED TO APPEAR AT A HEARING, OR TESTIFY, ABSENT A PRIOR ORDER OF THE COURT.
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Alimony: "Need" & "Double Dipping"

Posted on Tue, Mar 15, 2011

Need vs. Ability

Even prior to the 2010 statutory amendments, the starting point for every alimony analysis has been determining the factual issue of “need” and “ability to pay”. In other words, the one element common to all types of alimony is the requirement that the recipient spouse must have a need, and the payor spouse must have the ability to pay. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Both elements must be present to meet the threshold of any alimony award.
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Hearsay Rules

Posted on Mon, Mar 07, 2011

90.801  Hearsay; definitions; exceptions.--


(1)  The following definitions apply under this chapter:


(a)  A "statement" is:


1.  An oral or written assertion; or


2.  Nonverbal conduct of a person if it is intended by the person as an assertion.


(b)  A "declarant" is a person who makes a statement.


(c)  "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.


(2)  A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:


(a)  Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;


(b)  Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or


(c)  One of identification of a person made after perceiving the person.


History.--s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 19, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 2, ch. 81-93; s. 497, ch. 95-147.


90.802  Hearsay rule.--Except as provided by statute, hearsay evidence is inadmissible.


History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379.


90.803  Hearsay exceptions; availability of declarant immaterial.--The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:


(1)  SPONTANEOUS STATEMENT.--A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.


(2)  EXCITED UTTERANCE.--A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.


(3)  THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.--


(a)  A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:


1.  Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.


2.  Prove or explain acts of subsequent conduct of the declarant.


(b)  However, this subsection does not make admissible:


1.  An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.


2.  A statement made under circumstances that indicate its lack of trustworthiness.


(4)  STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.--Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.


(5)  RECORDED RECOLLECTION.--A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.


(6)  RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.--


(a)  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.


(b)  Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.


(c)  A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party's failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.


(7)  ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY.--Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.


(8)  PUBLIC RECORDS AND REPORTS.--Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.


(9)  RECORDS OF VITAL STATISTICS.--Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if a report was made to a public office pursuant to requirements of law. However, nothing in this section shall be construed to make admissible any other marriage of any party to any cause of action except for the purpose of impeachment as set forth in s. 90.610.


(10)  ABSENCE OF PUBLIC RECORD OR ENTRY.--Evidence, in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made and preserved by a public office and agency.


(11)  RECORDS OF RELIGIOUS ORGANIZATIONS.--Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.


(12)  MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES.--Statements of facts contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, when such statement was certified by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and when such certificate purports to have been issued at the time of the act or within a reasonable time thereafter.


(13)  FAMILY RECORDS.--Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.


(14)  RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.--The record of a document purporting to establish or affect an interest in property, as proof of the contents of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording or filing of the document in the office.


(15)  STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.--A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.


(16)  STATEMENTS IN ANCIENT DOCUMENTS.--Statements in a document in existence 20 years or more, the authenticity of which is established.


(17)  MARKET REPORTS, COMMERCIAL PUBLICATIONS.--Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.


(18)  ADMISSIONS.--A statement that is offered against a party and is:


(a)  The party's own statement in either an individual or a representative capacity;


(b)  A statement of which the party has manifested an adoption or belief in its truth;


(c)  A statement by a person specifically authorized by the party to make a statement concerning the subject;


(d)  A statement by the party's agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or


(e)  A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member's participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.


(19)  REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY.--Evidence of reputation:


(a)  Among members of a person's family by blood, adoption, or marriage;


(b)  Among a person's associates; or


(c)  In the community,


concerning a person's birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.


(20)  REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY.--Evidence of reputation:


(a)  In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.


(b)  About events of general history which are important to the community, state, or nation where located.


(21)  REPUTATION AS TO CHARACTER.--Evidence of reputation of a person's character among associates or in the community.


(22)  FORMER TESTIMONY.--Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.


(23)  HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.--


(a)  Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:


1.  The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and


2.  The child either:


a.  Testifies; or


b.  Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).


(b)  In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.


(c)  The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.


(24)  HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT.--


(a)  Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:


1.  The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and


2.  The elderly person or disabled adult either:


a.  Testifies; or


b.  Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1).


(b)  In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the elderly person's or disabled adult's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.


(c)  The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.


History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 1, ch. 77-174; ss. 20, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 4, ch. 85-53; s. 11, ch. 87-224; s. 2, ch. 90-139; s. 3, ch. 90-174; s. 12, ch. 91-255; s. 498, ch. 95-147; s. 1, ch. 95-158; s. 2, ch. 96-330; s. 1, ch. 98-2; s. 2, ch. 2003-259.


90.804  Hearsay exceptions; declarant unavailable.--


(1)  DEFINITION OF UNAVAILABILITY.--"Unavailability as a witness" means that the declarant:


(a)  Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;


(b)  Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;


(c)  Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial;


(d)  Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or


(e)  Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.


However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.


(2)  HEARSAY EXCEPTIONS.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:


(a)  Former testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.


(b)  Statement under belief of impending death.--In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.


(c)  Statement against interest.--A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.


(d)  Statement of personal or family history.--A statement concerning the declarant's own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.


(e)  Statement by deceased or ill declarant similar to one previously admitted.--In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.


History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 3, ch. 90-139; s. 4, ch. 90-174; s. 499, ch. 95-147; s. 2, ch. 2005-46.


90.805  Hearsay within hearsay.--Hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.


History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379.

Divorce law in Florida gets more complicated every year. With so many laws and bi-laws, our divorce attorneys seek to help you understand. Contact us in Jacksonville, Florida, with any questions you may have about divorce law.

By Kenny Leigh

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Hearsay Legal Lesson

Posted on Mon, Mar 07, 2011

Christopher W. LoBianco Esquire, Kenny Leigh & Associates, 02/14/2011.

HEARSAY- FLORIDA RULES OF EVIDENCE- 90.801-805:

Abstract:

Hearsay is defined in Florida as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” [FL Stat 90.801(c)].  At its core, the rule against hearsay is aimed at prohibiting the use of a “declarant’s” statement, as equivalent to testimony to the fact asserted, unless that person is brought to testify in court where s/he may be placed under oath and cross-examined. The main theory behind this rule is the fear that “hearsay” lacks reliability and is such too prejudicial the trier of fact to use in making judgment.  For practical purposes, however, the Rules specifically designate certain items, that presumably because of their indicia of trustworthiness, and for their probative value, are not hearsay, along with a number of exceptions.

Rules:

The statute specifically enumerates certain types of out of court statements which are “not hearsay” as long as (1) the declarant testifies at the hearing and (2) is subject to cross examination on the statement AND it is one of (3) three (specifically designated) types of statements: (A) inconsistent with a statement given under oath subject to penalty of perjury… (think impeachment); (B) consistent with declarant’s testimony and offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication (reverse impeachment); or (C) one of identification of a person made after perceiving the person (reliability). [FL Stat 90.801(2)(a)-(c)].

Beyond these “non hearsay” out of court statements, any other type of hearsay evidence is inadmissible unless it falls into one of the myriad of exceptions.    [FL Stat 90.802]. The exceptions are broken down into two categories:  (1) those where the unavailability of the declarant is “immaterial”; (2) where the declarant is “unavailable” and there is some other specific circumstance  (i.e. statements against interest where the party whom is now unavailable made a statement which at the time of its making was so far contrary to the declarant’s pecuniary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless s/he believed it to be true).  The theory, again, is reliability.  The same can be said to be the idea behind those exceptions found in the 90.803 series.

Likely the most common of the exceptions used in family law is the “admission” made by a party opponent.  [FL Stat 90.803(18)].  However, this does not allow you to offer a statement made by your own client for the truth asserted (unless not hearsay or another exception), but many attorneys do not pick up on this fact, probably because they think of your client as their party opponent.

Likely the most commonly used invocation of “OBJECTION HEARSAY” is when the opponent tries to offer into evidence comments and statements allegedly made by minor children.  Some ways to get around this widely used objection  is to try to convince the Judge that the statement falls into one of the exceptions.  Most likely that it was a “spontaneous statement”, “excited utterance”, or “one of then existing mental, emotional, or physical condition” (be careful in injunction hearings).  These are all extremely fact based, but do leave open a lot of room for argument.  [90.803(1)-(3)].  There is also the unique exception for statements of a child victim in 90.803(23) which is extremely fact specific and regimented, requiring that the court find that the source and circumstances is trustworthy AND the child either testifies or is “unavailable” but there corroborating evidence. Luszczyk v. Department of Health and Human Services, 576 So.2d 431 (FL 5th DCA, 1991).

Often overlooked are the exceptions in the Florida rules is 90.803(19) and 90.803(21) which both make it admissible to provide certain evidence of a person’s reputation of family or personal history, and of their reputation as to character by using hearsay statements (still need to check the 90.400 and 90.600 series which are for another day).  Provisions that make exceptions for certain public and business records, and market reports often allow us attorneys to convince the Judge to let in evidence of all sorts of written and printed documents (again, authenticating them is a lesson for another day).  [FL Stat 90.803(6),(9),(10)].  In Family Law, all though we do not have the restrictions a criminal case would, many items of “records” are probably more loosely admitted than they should.  (See Bereos v. DOR, 958 So.2d 489 (FL 3rd 2007)). Remember though, a business record, does not have to be that of an incorporated business.  Clients, who keep things like tax returns , or check registers, can be business records as well.

Also worth mentioning is that when your client keeps a journal of all the transpiring events, as long as they testify that they recorded the event while fresh in their mind, but no longer have the ability to fully recollect, they may read their journal statements into evidence, but may not enter the journal itself as an exhibit.  [FL Stat 90.803(5)].

Hearsay within hearsay is admissible as long as there is an exception to rectify all of the hearsay problems.  [FL Stat 90.805].

FL Stat 61.20 removes hearsay restrictions from Social Investigations?!. (Kern v. Kern, 333. So. 2d 17 (FLA 1976).


333 So.2d 17 (1976)



Joan T. KERN, Appellant,

v.

Jack D. KERN, Appellee.



No. 47771.



Supreme Court of Florida.



May 26, 1976.



18*18 Charles R. Holley, Naples, for appellant.



J. Blan Taylor of Taylor & Locker, Naples, for appellee.



PER CURIAM.



This is an appeal from a judgment rendered by the Circuit Court in and for Collier County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.



Appellant Joan and Appellee Jack Kern were married on June 5, 1954, in Oak Park, Illinois. They are the parents of six children, four of whom are minors. After moving many times since 1954, the Kerns, both ordained Unity ministers, came to Naples, Florida, where they organized a church of that denomination.



Jack Kern filed a petition for dissolution of marriage in the Palm Beach County Circuit Court on May 11, 1972. The court entered a default and final judgment granting the dissolution and awarding him custody of the minor children. This order was reversed on appeal. Kern v. Kern,291 So.2d 210 (Fla.App. 4th 1974), cert. denied, 294 So.2d 657 (Fla. 1974). However, the minor children have continued to live with their father. On remand the trial court held a contested hearing, and thereafter Mrs. Kern moved for a change of venue to the Collier County Circuit Court; such transfer was ordered on August 26, 1974.[1]



The circuit court in Collier County held a motions hearing on June 9, 1975, and had trial the following day. The trial was continued until June 17, 1975, when the court rendered its decision. The marriage was found to be irretrievably broken, and Mr. Kern was awarded custody of the minor children and given exclusive possession of the marital home in which to reside until the youngest child reaches majority. The trial court set aside the previous conveyance of this property from Joan Kern to her husband, rendering it a tenancy in common. When the youngest child reaches majority, the property is to be sold, with the net proceeds divided equally. The court also denied Joan any monetary relief such as alimony, special equity or child support.



On this appeal Mrs. Kern seeks relief from all aspects of the trial court's ruling save for the dissolution order itself. She raises some fifteen points on appeal. We find that of these issues only the constitutional question which vests this Court with jurisdiction merits discussion.



19*19 Section 61.20, Florida Statutes, reads as follows:



"Social investigation and recommendations when child custody is in issue. — In any action where the custody of a minor child is in issue, the court may request the [Department of Health and Rehabilitative Services] to make an investigation and social study concerning all pertinent details relating to the child and each parent. The [Department of Health and Rehabilitative Services] shall furnish the court with a written report with its recommendation with a written statement of facts found in its social investigations on which its recommendations are based. The court may consider the information contained in the report in making a decision on the child's custody and the technical rules of evidence do not exclude such report from consideration."



(Note: Prior to the abolition of the Division of Family Services, Chapter 75-48, Laws of Florida, the name of that agency appeared where that of H.R.S. now appears in the above statute, and the briefs discuss the role of D.F.S. in this connection.)



Appellant contends that the trial judge's consideration of such reports, which by their very nature contain hearsay and opinion statements otherwise inadmissible in a court of law, constitutes a denial of due process of law. She alleges further that the statute is an unconstitutional infringement of her right to confrontation of witnesses. In support of her position she cites a dissenting opinion in Green v. Green, 307 So.2d 246, 247 (Fla.App. 4th 1975), in which Judge Owen suggests that Section 61.20 authorizes a practice which "is so shockingly violative of fundamental due process safeguards that I feel the statute should be abolished forthwith."



The issue of the constitutionality of Section 61.20, Florida Statutes, has not been the subject of a reported appellate opinion. (The majority in Green, supra, a per curiam affirmance without opinion, did not discuss the statute's constitutionality.[2]) In the absence of such authority, we look to out-of-state cases on this subject and to a United States Supreme Court decision whose reasoning is applicable to the instant controversy. Such cases persuade us to take a view which differs from that expressed in the dissenting opinion in Green, supra.



At the outset we note the wide discretion reposed in the trial court where, as in the instant case, the future of young children is at stake. Because the credibility of witnesses and the weight of their testimony is best determined by the trial court, fact findings made by trial judges in child custody hearings should be accorded great weight. Grant v. Corbitt, 95 So.2d 25, 28 (Fla. 1956). The late Judge Kenneth Keating of the New York Court of Appeals recognized further that the unusual nature of this responsibility necessitates certain modifications in traditional trial proceedings:



"The burden on a Judge when he acts as parens patriae is perhaps the most demanding which he must confront in the course of his judicial duties. Upon his wisdom, insight and fairness rest the future happiness of his wards. The procedures of the custody proceeding must, therefore, be molded to serve its primary purpose and limited modifications of the traditional requirements of the adversary system must be made, if necessary. The test is whether the deviation will on the whole benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision." Lincoln v. Lincoln, 24 20*20 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 843-44, 247 N.E.2d 659, 660-61 (1969) (citations omitted).



By providing the trial court with potentially valuable information compiled by professional social workers, the instant statute constitutes a legislative cognition of the suitability of modified proceedings in this special area.



It has been held that, so long as such reports or a description of the contents thereof are made available to the parties, there is no violation of due process guarantees.[3] Trial courts have consistently been reversed, however, for considering such reports without notice to, or knowledge of, the parties. See, e.g., Dees v. Dees, 41 Wis.2d 435, 164 N.W.2d 282 (1969);McGuire v. McGuire, 140 So.2d 354 (Fla.App.2d 1962)Herb v. Herb, 8 A.D.2d 419, 188 N.Y.S.2d 41 (1959). Implicit in Section 61.20, Florida Statutes, of course, is a procedural due process requirement that when the trial court relies on such investigative reports, counsel for the parties should be given an opportunity to review the reports for purposes of introducing any evidence that might rebut the conclusions or recommendations which the reports contained. In the instant case, nothing prevented Mrs. Kern from calling as witnesses the case workers who prepared the reports as well as the persons whom they interviewed nor from attempting to discredit the methods used to reach conclusions adverse to her cause. There is no showing that such witnesses would have been unavailable at trial had they been subpoenaed. Yet their presence would not be necessary to make such evidence admissible:



"... [I]n general, it may be argued that the report itself is admissible under well-recognized exceptions to the hearsay rule. In fact, it may be doubted whether the report is within the hearsay ban at all. The dangers of faulty perception and narration seem alleviated by the social workers' special skills and training; falsification seems unlikely; and memory is unimportant if the report is more or less contemporaneous. A similar approach is suggested by numerous statutes providing that such reports shall be `competent' or `admissible' as evidence." (footnotes omitted)



Comment, Use of Extra-Record Information in Custody Cases, 24 U.Chi.L.Rev. 349, 357 (1957).



We note further that the United States Supreme Court has upheld a death sentence based partially on information not made available to counsel. While "open court testimony with cross-examination" is required when the issue is guilt or innocence of a particular offense, limiting a judge's consideration to such evidence in the determination of an appropriate sentence would be "totally impractical if not impossible," since such a deliberation should include the "fullest information possible concerning the defendant's life and characteristics." Williams v. New York,337 U.S. 241, 247, 250, 69 S.Ct. 1079, 1083, 1084-5, 93 L.Ed. 1337, 1342, 1343-4 (1949). TheWilliams reasoning has been applied to permit consideration of secret reports and hearsay in proceedings to determine the future status of juveniles already found to be delinquent. E.g., In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954)In re Halamuda, 85 Cal. App.2d 219, 192 P.2d 781 (1948). As 21*21 in such proceedings, the overriding concern in custody litigation between parents is again the child's welfare, and thus cases such as that before us today would also seem to call for the Williams result.



For the foregoing reasons we hold Section 61.20, Florida Statutes, to be a constitutional legislative recognition of the necessity for professional social workers' investigative skills and personal counseling as a means of furthering the trial court's search for just and humane results in this sensitive area.



We have carefully considered and analyzed the record, briefs, and arguments of counsel with respect to the remaining points on appeal and conclude that the trial court did not commit reversible error nor did he abuse his discretion in the conduct of the proceedings.



Accordingly, the judgment is affirmed.



OVERTON, C.J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.



[1] Decisions in other appeals taken by Mrs. Kern are reported at 309 So.2d 563 (Fla. App.2d 1975) and 311 So.2d 130 (Fla.App.2d 1975).



[2] We note that Green is distinguishable factually from the case sub judice because in Green "[t]he report, prepared and filed at the request of the court, was considered by the court in reaching its determination on the custody issue, although neither party had access to the report or its content." 307 So.2d at 247 (dissenting opinion).



[3] Jenkins v. Jenkins, 304 Mass. 248, 23 N.E.2d 405 (1939)Swain v. Swain, 250 Cal. App.2d 1, 58 Cal. Rptr. 83 (1967)Forslund v. Forslund, 225 Cal. App.2d 476, 37 Cal. Rptr. 489 (1964); Neb. Rev. Stat. § 42-307. In the instant case the reports were filed and made available to counsel for both parties, although apparently one was missing from the court file when sought by counsel at the June 9 motion hearing. The fact that this report was apparently viewed by the court in connection with an earlier hearing on temporary matters, but thereafter mislaid through inadvertence is not sufficient to convince us that the trial court's judgment should be reversed. See Burns v. Carricarte, 336 So.2d 1171 (Fla. 1976) (concurring opinion expressing views of four members of this Court).



576 So.2d 431 (1991)

Edith Anderson LUSZCZYK, Appellant,

v.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.



No. 90-849.



District Court of Appeal of Florida, Fifth District.



March 21, 1991.



432*432 Gregory L. Hammel, Melbourne, for appellant.



No appearance for appellee.



PETERSON, Judge.



This is an appeal by the mother of an order of dependency issued pursuant to chapter 39, Florida Statutes (1989). We reverse and remand for a new hearing upon determining that:



I. No written findings of fact were included in the adjudication order as required by section 39.409(3), Florida Statutes (1989).



II. Hearsay testimony of statements made by the child were admitted into evidence without a hearing to determine "that the time, content, and circumstances of the statement provide sufficient safeguards of reliability" as required by section 90.803(23), Florida Statutes (1989).



III. Witnesses testified that they believed the alleged child victim was telling the truth.

I.



The trial court removed the child from the mother's home and gave temporary custody to the paternal grandparents without written findings of fact. Section 39.409(3), Florida Statutes (1989), requires that the court briefly state the facts upon which the finding of dependency is made if the court does not choose to allow the child to remain in the home under supervision. Failure to state the findings is reversible error. Williams v. Department of Health and Rehabilitative Services, 568 So.2d 995 (Fla. 5th DCA 1990)Sigafoos v. Department of Health and Rehabilitative Services, 567 So.2d 1053 (Fla. 5th DCA 1990).

II.



Testimony of the child's out-of-court statements by two psychologists, a pediatrician,[1] the guardian ad litem, and two H.R.S. caseworkers was admitted over the objection that the court had not held a hearing to determine the trustworthiness of the hearsay. The hearing is required by section 90.803(23), Florida Statutes (1989). Failure to conduct the hearing is error. Fuller v. State, 540 So.2d 182 (Fla. 5th DCA 1989). It was especially important to conduct the hearing in this case since the child's testimony was contradicted by the mother and the stepfather; the boy was the subject of a child custody battle in the parents' dissolution proceedings; testimony was offered supporting the mother's and stepfather's versions; and some of the child's testimony was inconsistent with the hearsay testimony. The requirement that the court specifically find reliability is not eliminated because the child testifies.[2] Id.

III.



The trial court allowed a psychologist, H.R.S. caseworkers, and the guardian ad litem to testify over objection that in their opinions the child was telling the truth. It is error to allow witnesses to give 433*433 their opinions as to the truthfulness of a child. Tingle v. State, 536 So.2d 202 (Fla. 1988) (error to allow counselor and social worker to testify that they believed the alleged child victim was telling the truth); Fuller v. State, 540 So.2d 182 (Fla. 5th DCA 1989) (error to allow member of child protection team to testify that he believed the alleged child victim was telling the truth); Davis v. State, 527 So.2d 962 (Fla. 5th DCA 1988) (error to allow psychologist to testify that an alleged child victim was telling the truth).



We reverse the order of dependency and remand for a new hearing.



REVERSED and REMANDED.



GRIFFIN and DIAMANTIS, JJ., concur.



[1] After the objection, the court apparently admitted the pediatrician's testimony pursuant to section 90.803(4), Florida Statutes, and the mother did not argue that this exception to the hearsay rule did not apply.



[2] Once the reliability determination is made, the trial court may find relevant this court's recent decision in Kopko v. State, 16 F.L.W. D508, ___ So.2d ___ (Fla. 5th DCA February 14, 1991).



711 So.2d 204 (1998)

Michael J. SCARINGE, Appellant,

v.

Penni Scaringe HERRICK, Appellee.



No. 96-03804.



District Court of Appeal of Florida, Second District.



May 20, 1998.



Elizabeth G. Mansfield of Carnal & Mansfield, P.A., St. Petersburg, for Appellant.



Penni Scaringe Herrick, Cocoa, pro se.



WHATLEY, Judge.



Michael J. Scaringe, the father, appeals a final order on a petition for modification of custody filed by Penni Scaringe Herrick, the mother. The mother was awarded sole parental responsibility of the parties' minor daughter. We affirm.



The mother had an extraordinary burden to effectuate a change of custody. See Blosser v. Blosser, 707 So.2d 778 (Fla. 2d DCA 1998). The trial court found the father to have denied or unilaterally reduced the mother's visitation when the father had custody. The trial court coupled this finding with an additional finding of "alienation by the father-primary residential parent to the extent that the child `hated' the mother." Such a finding is a valid basis for a change in custody. See Berlin v. Berlin, 386 So.2d 577 (Fla. 3d DCA 1980). This case turned on credibility determinations, and we cannot say the trial court abused its discretion in granting the petition to modify custody.



What did cause us concern was the role the guardian ad litem played. The guardian's report contained hearsay; the guardian testified to matters that were hearsay; and the guardian became an advocate. We have carefully reviewed the record related to these actions of the guardian, and we conclude that they were not so fundamentally unfair as to warrant a remand for a new hearing.



The statute controlling the powers and authority of guardians ad litem is section 61.403, Florida Statutes (1995). Subsection (5) of that statute mandates that the guardian file a written report. By necessity, the report will usually contain hearsay. The act of filing the report does not place the report 205*205 in evidence. Hearsay rules contained in the Florida Evidence Code apply to section 61.403. Accordingly, when a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained.



The statute further mandates that the guardian shall act as the friend of the child and in thechild's best interest. See § 61.403. However, the statute also states that the guardian shall not act as an advocate. See § 61.403. The art of advocacy is solely within the domain of counsel or the pro se litigant.



We recognize that section 61.20, Florida Statutes (1995), allows the trial court to consider social investigations and studies in child custody matters without regard to the rules of evidence. However, this statute applies to social investigations and studies conducted by qualified staff of the court or other specified professionals or agencies as set forth in section 61.20(2). A typical guardian ad litem, such as the one in this case, does not meet the criteria of section 61.20(2). Further, we note that there is no similar exception to the rules of evidence in the statute pertaining to guardians ad litem. See § 61.403.



We do not minimize the importance of the role of guardians ad litem in custody cases. Rather, we reiterate the statutory constraints and evidentiary rules which apply.



Affirmed.



PARKER, C.J., concurs.



BLUE, J., concurs specially.



BLUE, Judge, specially concurring.



I concur because I agree the record contains competent, substantial evidence without the testimony of the guardian ad litem to support the decision of the trial court. I write to add another observation regarding guardians ad litem to the concerns expressed by the majority. Guardians ad litem render an invaluable service to the children and courts of this state; however, it is the trial judge who is responsible for the final decision in custody and visitation disputes. Trial judges must remain vigilant that they not abdicate their fact-finding and decisional responsibilities to a guardian ad litem assigned to report on the best interest of achild or children



958 So.2d 489 (2007)

Alex BEROES, Appellant,

v.

FLORIDA DEPARTMENT OF REVENUE, on behalf of Mercedes PALACIOS, Appellee.



No. 3D05-2150.



District Court of Appeal of Florida, Third District.



May 30, 2007.



490*490 Bofill & Vilar and Jose C. Bofill, Miami, for appellant.



Bill McCollum, Attorney General, Orlando, and William H. Branch, Assistant Attorney General, Tallahassee, for appellee.



Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.



ROTHENBERG, Judge.



The former husband, Alex Beroes, appeals from a post-dissolution order awarding ongoing and retroactive child support to the former wife, Mercedes Palacios. We reverse and remand for an evidentiary hearing.



The former husband and the former wife, Mercedes Palacios, married in 1992 in Venezuela, and are the parents of a 491*491 minor child born in 1992. In 2000, the parties, who were living in Miami at the time, separated and the former wife returned to Venezuela with their child.



In May 2000, the former husband, who had been living in Miami-Dade County for at least six months, filed a petition for dissolution of marriage alleging, in part, that the former wife should be designated the primary residential parent of the minor child, the former wife was in need ofchild support, and he had the ability to pay child support. The former wife was served by publication and, after the former husband filed an affidavit of diligent search, a default was entered against the former wife. In August 2000, a final judgment of dissolution of marriage ("Final Judgment") was entered, which provides, in part, as follows:



2. The Court shall retain jurisdiction of the parties hereto and the subject matter hereof.



3. The parties shall be awarded shared parental responsibility of the minor childwith the primary residence being with the Respondent.



4. The Court shall retain jurisdiction over the issue of child support, custody and visitation since the present whereabouts of the Respondent are unknown at this time.



Paragraphs three and four of the Final Judgment were crossed out and initialed by Judge Philip Cook.



In early 2002, the Department of Revenue ("the Department"), on behalf of the former wife, filed a Supplemental Petition for Modification of Final Judgment ("Supplemental Petition") in thedivorce action, alleging that "[a]lthough no child support was ordered in said Final Judgment, the Court retains jurisdiction of this cause for the entry of such future orders concerning childsupport as circumstances might require," and requesting that the trial court impose ongoing and retroactive child support.



Thereafter, the former husband moved to dismiss the former wife's Supplemental Petition, arguing that the trial court lacked subject matter jurisdiction to determine or establish childsupport because this matter was not determined in the Final Judgment, and that Judge Cook, by crossing out paragraph four of the Final Judgment, did not retain jurisdiction over the issue ofchild support.



In January 2003, the former husband's motion to dismiss was heard by a hearing officer. The hearing officer's recommended order provides that Judge Cook "did not permit the reservation of jurisdiction on issues of visitation, shared parental responsibility, custody and child support," and therefore, the motion to dismiss should be granted "without prejudice should the Department of Revenue wish to file an initial Petition for Support." Thereafter, Judge Arthur H. Taylor ratified the hearing officer's recommended order.



The Department, however, filed a Motion to Vacate Judge Taylor's order, and on June 2, 2003, Judge Taylor entered an order granting the Department's motion to vacate, finding that based upon paragraph two of the Final Judgment, the trial court had jurisdiction to address the issue of child support.



The former wife's Supplemental Petition was heard by a hearing officer in October 2004. The former husband and former wife did not attend the hearing, and no testimony was heard. The hearing officer, however, accepted from the Department a document from the Department of Labor regarding the former husband's current earnings.



The hearing officer entered a recommended order on the former wife's Supplemental 492*492Petition, finding, in part, that the former husband "failed to comply with Florida's discovery rule 12.285, therefore, as a sanction, income is imputed to the [former husband] based on information from the Department of Labor." The hearing officer recommended that the former wife be awarded ongoing and retroactive child support. Judge Taylor entered an order ratifying the hearing officer's recommended order, and he denied the former husband's motion for rehearing.



The first issue raised in this appeal is whether the trial court possessed subject matter jurisdiction to award child support to the former wife. While the former husband asserts that the trial court lacked subject matter jurisdiction, and the former wife takes the contrary position, both parties, while recognizing our holdings in Cruz v. Domenech[1] and Birnbaum v. Birnbaum,[2] agree that our standard of review in this case is de novo. We agree. The trial court's ruling regarding subject matter jurisdiction did not involve the resolution of any question of fact. The issue was decided as a matter of law. We, therefore, conclude that the trial court's ruling regarding subject matter jurisdiction in this instance must be reviewed by this court de novo. See Aravena v. Miami-Dade County, 928 So.2d 1163, 1166 (Fla.2006)(holding that where the trial court decides an "issue as a matter of law based on the undisputed facts," the standard of review is de novo).



It is undisputed that when the trial court dissolved the marriage in 2000, it had subject matter jurisdiction over the action: the former husband satisfied the residency requirements and constructive service was made upon the former wife by publication. See Montano v. Montano,520 So.2d 52, 53 (Fla. 3d DCA 1988)(holding that "[w]here the former wife resided in Florida for six months prior to filing the petition for dissolution, and the Guatemalan husband was properly served by constructive notice, the trial court properly exercised in rem jurisdiction to dissolve the valid Guatemalan marriage").



While constructive notice was sufficient to dissolve the parties' marriage, personal jurisdiction is generally required before a court may lawfully order payment of alimony, child support, or costs. Montano, 520 So.2d at 53see also Davis v. Dieujuste, 496 So.2d 806, 808 (Fla.1986)(recognizing the "divisible divorce" concept, with one aspect relating to marital status and the other aspect to the property rights and obligations of the parties). As explained in Davis,



The concept of "divisible divorce" as adopted in Pawley[3] recognizes that a dissolution proceeding has two separable aspects, that which relates to the marital res and that which relates to the property rights and obligations of the parties. While constructive service is sufficient for an adjudication of the former, personal jurisdiction is generally required for a determination of the latter.



Davis, 496 So.2d at 808.



Thus, the trial court in 2000 properly recognized that, while it had subject 493*493 matter jurisdiction over the marriage and could properly dissolve the marital relationship, it lacked personal jurisdiction over the former wife and, therefore, it could not resolve the property rights nor the obligations of the parties, such as child support and alimony. See Orbe v. Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995)(holding that in such cases, the court can grant the dissolution of the marriage without addressing the property rights and obligations of the parties).



The issues before this court are (1) whether under the circumstances in this case, where a "divisible divorce" was granted without addressing the issue of child support, must the trial court retain jurisdiction over this matter in order to subsequently address it; and (2) whether the trial court divested itself of subject matter jurisdiction over the issue of child support based on its striking of paragraphs three and four of the Final Judgment.



Our review of the case law leads us to the conclusion that providing for the support of the minor children of the parties in a dissolution proceeding, where there is need therefor, is an essential component of the proceeding. Therefore, reservation of jurisdiction to address and adjudicatechild support is not required. See Kirk v. Kirk, 230 So.2d 694 (Fla. 3d DCA 1970).



In Kirk, the parties' divorce decree was entered in October 1960, but the decree did not contain a provision regarding child support for the parties' two minor children. Approximately nine years later, the former wife filed a petition in the divorce action requesting that the former husband be ordered to pay child support. The trial court granted the wife's petition. In affirming the child support award, this court stated:



Providing for support of minor children of the parties to a divorce suit, where there is a need therefor, is an essential part of the suit or proceeding. This was not done in the present case at the time of the final hearing and decree. While the reservation of jurisdiction in the decree was not essential in order for the court to have jurisdiction thereafter to make orders necessary for the care and support of the children, in this case jurisdiction was expressly reserved in the decree in a form sufficient to authorize the court to so proceed later.



Id. at 696 (emphasis added).



We, however, need not determine whether reservation of jurisdiction was required, because in the instant case, the trial court expressly reserved jurisdiction by inserting paragraph two into its Final Judgment, which provides, "The Court shall retain jurisdiction of the parties hereto and the subject matter hereof." As the trial court expressly reserved jurisdiction over the parties and the subject matter of the dissolution proceedings, we find that the trial court did not divest itself of subject matter jurisdiction to determine issues relating to child support, custody, or visitation by striking through paragraphs three and four of the Final Judgment.



Although we conclude that the trial court does possess jurisdiction to award child support to the former wife, we reverse the child support award imposed by the trial court and remand for an evidentiary hearing because (1) the trial court's award was levied as a sanction against the former husband without affording the former husband due process; (2) the sole evidence relied upon in awarding and setting the amount of child support was unsworn hearsay; and (3) it was improper to grant retroactive child support to May 24, 2000, which is two years prior to the filing of the former wife's Supplemental 494*494 Petition seeking child support. Our conclusion that the child support award must be reversed and remanded for an evidentiary hearing is supported by the Department's proper confession of error regarding this issue.



Affirmed in part, reversed in part, and remanded.



[1] Cruz v. Domenech, 905 So.2d 938 (Fla. 3d DCA 2005)(holding that the trial court's determination regarding whether the pleadings properly invoke the trial court's subject matter jurisdiction, is reviewed using the abuse of discretion standard).



[2] Birnbaum v. Birnbaum, 615 So.2d 241, 242 (Fla. 3d DCA 1993)("[T]he trial court did not abuse its discretion or authority in concluding it was vested with subject matter jurisdiction to proceed on the issue of custody.").



[3] Pawley v. Pawley, 46 So.2d 464 (Fla.), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950).



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