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). The
Williams 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 53;
see 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).
As the Florida divorce law gets more complicated, we're here to help. Our team of divorce attorneys help to provide you with updated research and findings in regards to divorce for men.
By Kenny Leigh
