Amendments to the Florida Family Law Rules of Procedure (723 So. 2d 208, 1998)

Citations

723 So. 2d 208

Full opinion text

OVERTON, Justice.

In February 1998, this Court issued an opinion in which we amended a number of the Florida Family Law Rules and completely amended the Florida Family Law Forms. See Amendments to the Family Law Rules of Procedure, 713 So.2d 1 (Fla.1998) (Family Law Opinion). In that opinion, we also rejected a number of rule amendment proposals. In doing so, however, we stated that:

[W]e believe that many of the proposed changes that we have declined to approve in this opinion may have merit. As such, we will allow revisions to the proposed changes and/or additional comments to the matters discussed in this opinion to be submitted to this Court no later than May 1, 1998. This Court may set any of those issues on which comment is received for oral argument during the Court’s June 1998 oral argument calendar.

Id. at 9-10. Both the Family Law Rules Committee (rules committee) and the Family Court Steering Committee (steering committee) filed petitions prior to the May 1 deadline asking that we readdress a number of issues. The committees also asked that we change some of the rules and forms for clarification purposes or to correct errors or omissions in the forms. After hearing oral argument and reviewing other comments received we address below each of the issues raised by the committees.

Rule Regulating the Florida Bar 10-2.1

Under Rule Regulating the Florida Bar 10-2.1, certain information must be disclosed any time a nonlawyer assists a person in the completion of a form. In our Family Law Opinion, this Court concluded that this information need not be disclosed on domestic and repeat violence petition forms because such disclosure might place the preparer at risk. Although we amended the family law forms accordingly, we did not amend rule 10-2.1 to reflect this exception to the disclosure requirement. In its petition, the steering committee has requested that we modify the rule to reflect this exception. We approve this request and modify rule 10-2.1 as set forth in appendix A to this opinion.

Florida Family Law Rule 12.170— Counterclaims and Crossclaims

The steering committee also asks that we amend Florida Family Law Rule 12.170 to clarify that the rule governs both counterclaims and crossclaims. Although this Court’s opinion in In re Family Law Rules of Procedure, 663 So.2d 1049 (Fla.1995), provided that the rule governed both counterclaims and crossclaims, apparently, when West Group published the opinion, it erroneously omitted counterclaims from the rule. See In re Family Law Rules of Procedure, 663 So.2d 1049, 1063 (Fla.1995). To eliminate any confusion regarding this issue, we restate in this opinion that rule 12.170 governs both crossclaims and counterclaims. In appendix A we restate the rule in full to ensure that counterclaims are included in the rule.

Rule 12.280 — General Provisions Governing Discovery and

Rule 12400 — Confidentiality of Records and Proceedings

Both committees ask that we find, as a matter of public policy, that any financial information filed in a family law case may be sealed by the court at the request of one or both of the parties. Currently, the sealing of court records in family law cases is governed by article I, section 24, of the Florida Constitution; Rule of Judicial Administration 2.051; and Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988). See Fla. Fam. L.R. 12.280, 12.400. According to the committees, the application of the principles set forth in those provisions and in Barron are too restrictive. Because financial affidavits must be filed with the court, the committees assert that parties will be reluctant to reveal information knowing that the information will be contained in a document open to the public. Additionally, they contend that, with the advent of new technology and the consequent ability to access court records via computer, third parties will be likely to abuse the system by using the financial information to their advantage.

In Barron, we reiterated that a strong presumption of openness in judicial proceedings exists and we specifically found that such a presumption applies to both civil and criminal proceedings. We noted that public access to court proceedings and records was important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy. In other words, as particularly pertinent here, public access to court proceedings and records is essential to ensure that judicial remedies are consistent, that family law files are open for independent review, and that confidence in family law proceedings is not undermined. Were we to allow for the sealing of financial affidavits upon request, we would be eliminating an important factor of government accountability that is necessary to ensure similar treatment for similarly situated litigants.

As we stated in Barron, closure of court proceedings or records should occur only under limited circumstances and in this regard family law proceedings should not be given special consideration. Moreover, we also noted in Barron that the legislature was free to enact legislation limiting public access to family law proceedings, but because it had not done so, family law proceedings must be cloaked with a presumption of openness. Barron was issued in 1988 and the legislature has not provided any additional provisions for closure in family law proceedings since the issuance of that opinion. Moreover, since our decision in Barron, the legislature proposed and the public subsequently enacted article I, section 24, of the Florida Constitution, which provides in pertinent part:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

Art. I, § 24(a). Under this provision, any person has the right to inspect court files unless those files are specifically exempted from public inspection. As indicated above, neither the legislature nor this Court has specifically exempted financial information in family law proceedings from public inspection. In fact, just prior to the adoption of section 24(a), we adopted rule 2.051 to clarify when court records could be deemed to be confidential. See In re Amendments to the Florida Rules of Judicial Administration-Public Access To Judicial Records, 608 So.2d 472 (Fla.1992). In doing so, we expressly approved the principles of Barron by including them in the body of the rule. See Rule 2.051(c)(9). That fact is specifically noted in the 1995 commentary to rule 2.051. We conclude that the committees’ request to allow the routine sealing of such records must be denied.

While we understand and are sympathetic to the committees’ concerns regarding the loss of privacy inherent in the filing of financial affidavits, we simply cannot find that public policy dictates the regular sealing of this type of information. In fact, as the discussion above illustrates, public policy dictates just the opposite conclusion, that is, that such records are presumed to be public.

We emphasize that, although we have previously stated in other opinions our conclusion that a presumption of openness applies to family law proceedings, this does not mean that financial records in those proceedings can never be sealed. Under the Family Law Rules, the sealing of records is governed by rule 2.051. Under that rule, a court is permitted to seal any court record where, among other things, confidentiality is required to protect trade secrets, to avoid substantial injury to innocent third parties, or to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Under the rule, it is within the discretion of the trial judge to seal financial records in family law proceedings if the trial judge finds it necessary to do so because it has been shown that third parties are likely to use this information in an abusive manner.

For instance, if it is likely that access to the financial information would subject a party to abuse such as the use of the information by third parties for purposes unrelated to government or judicial accountability or to first amendment rights, then a trial judge has the authority to seal the financial information. In. doing so, however, the order sealing the records should be conditional in that the financial information should be disclosed to any person who establishes that disclosure of the information is necessary for government or judicial accountability or has a proper first amendment right to the information. This clarification should alleviate some of the committees’ concerns because it explains that trial judges have the ability to protect the privacy interests of parties that could be adversely affected by new technology-

Rule 12.285 — Mandatory Disclosure

Both committees have requested that we amend rule 12.285 to reflect that a Child Support Guidelines Worksheet must be filed with the court rather than just served on the other party. Currently, the instructions to the forms require the worksheet to be filed with the court but the rule allows it simply to be served on the other party. This creates a conflict between the rule and instructions. We agree that the worksheet should be filed with the court so that the court has the benefit of this information when making its decision regarding the appropriate amount of child support to be awarded. As such, we have amended the rule to require the filing of the worksheet with the court. This amendment also necessitates a change to Family Law Form 12.932, Certificate of Compliance with Mandatory Disclosure.

The committees have also requested another minor change to this rule to reflect that all insurance policies, whether individual or group policies, must be disclosed. We approve this change.

New Rule 12.865 — Expert Witnesses

In our Family Law Opinion) we rejected the adoption of new rule 12.365, which would govern the appointment of experts by the court. We were concerned that the adoption of the rule would increase costs in family law cases. According to the committees, the rule is necessary to establish procedures to follow if experts are used. Further, to address the concerns of this Court, the committees have modified portions of the rule which implied that the appointment of experts was required by the court in certain circumstances. The committees contend that the proposed rule, as revised, may actually reduce costs to the litigants in many cases because it will clarify confusion regarding deposing experts, ex parte communications with the court, when and how a report is to be provided to the court, and the weight to be given to the report.

After having considered the committees’ reasons for requesting the rule, we adopt the rule as proposed.

Rule 12491 — Child Support Enforcement

The committees request this Court to allow child support hearing officers to issue recommended orders establishing paternity in contested paternity cases and determining support issues for a parent with whom a child is living. This request does not apply to contested paternity cases in which a jury trial has been demanded. All parties acknowledge that a litigant can demand a jury trial in paternity cases and that hearing officers cannot conduct such proceedings. Currently, the rule limits the powers and duties of hearing officers to issues regarding child support. According to the committees, the authority of a hearing officer to hear these issues is necessary to ensure compliance with federal statutes and regulations, which require a state to have an expedited procedure for the determination of paternity and support to receive certain federal funding. See, e.g., 42 U.S.C. § 666(a)(2)(1994); 45 C.F.R. § 303.101(b)(l)(1997). We agree that the support issues to be considered by a hearing officer may be extended to include alimony enforcement issues related to an ongoing child support matter, but, for the reasons expressed below, we decline to allow hearing officers to adjudicate contested paternity cases.

As conceded by the committees, the fact that the federal law requires an expedited process does not mean that a hearing officer is required to hear paternity determinations. To the contrary, the legislation simply requires that an expedited process be provided. Clearly, an expedited process can be implemented under which an Article V judicial officer presides over paternity proceedings.

The committees, however, argue that, because a paternity proceeding is so intricately tied to support and because hearing officers can hear support issues, the hearing officers should be allowed to hear paternity issues. The committees contend that the same procedures in effect for protecting the due process rights of a litigant in child support would be in effect for paternity determinations. Consequently, the committees see no need for an initial determination regarding paternity to be conducted by an article V judicial officer. The committees also assert that a contrary holding will overload the judiciary. We disagree.

First, hearing officers are only prohibited from presiding over contested paternity eases. Hearing officers are authorized to accept “voluntary acknowledgment of paternity and support liability and stipulated agreements setting the amount of support to be paid.” Fla. Fam. L.R. 12.491(e)(3).

Second, chapter 742, Florida Statutes (1997), is the exclusive remedy for establishing paternity, P.N.V. v. Washington, 654 So.2d 1274 (Fla. 2d DCA 1995), and provides that any determination of paternity also involves a determination of custody. Section 742.031, Florida Statutes (1997), governs hearings in paternity proceedings. That section, in pertinent part, provides:

(1) Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to persons, in addition to the parties involved and their counsel, as the judge in his or her discretion may direct. The court shall determine the issues of paternity of the child and the ability of the parents to support the child.... The court may also make a determination as to the parental responsibility and residential care and custody of the minor children in accordance with chapter 61.

(2) If a judgment of paternity contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting primary residential care and custody to the other parent without prejudice. If a paternity judgment contains no such provisions, custody shall be presumed to be with the mother.

(Emphasis added.) In essence, in making a determination of paternity, a court, of necessity, is making a custody determination; that is, even when custody is not an issue, a paternity judgment containing no explicit award of custody is granting custody to the mother. We find that hearing officers have no constitutional or statutory authorization to make recommendations regarding custody and visitation, and we accordingly conclude that they are not authorized to hear contested paternity proceedings.

Rule 12.610 — Injunctions for Domestic and Repeat Violence

The rules committee requests that we modify several rules to clarify the procedure for serving a motion to modify a domestic or repeat violence injunction. Currently, rule 12.610(e)(6) states that such motions are governed .by the rules of civil procedure; however, the civil rules do not directly address modification of such injunctions. Additionally, rule 12.610(b)(2)(C) provides that service of pleadings in cases of domestic or repeat violence other than the petition and orders granting injunctions are governed by rules 12.070 and 12.080. However, those rules specifically exclude domestic and repeat violence. We agree that clarification is needed.

Under the committee’s proposal, three rules would be modified: rule 12.610(c)(6) would be amended to delete any reference to the rules of civil procedure; rule 12.610(b)(2)(C) would be amended to delete reference to rule 12.070, which governs initial service of process; and rule 12.080(a)(2) would be amended to provide that service of pleadings and papers in domestic and repeat violence cases would be governed by rule 12.610 where rule 12.080 is in conflict with rule 12.610. Under this proposal, service of a motion to modify an injunction could be by mail rather than personal service. See rule 12.080 (service of pleadings and papers after commencement of all family law actions is governed by rule 1.080, which allows service by mail). In our Family Law Opinion, we disapproved service by mail for injunction petitions due to concerns about enforcement of the injunctions and prosecution of injunction violations when service of those injunctions were by mail. Notably, a motion to modify or vacate an injunction is actually in the nature of a supplemental petition rather than a motion. See, e.g., Fla. Fam. L. Form 12.980(k) (supplemental petition for modification of injunction for protection against domestic violence or repeat violence). Under rule 12.610(a)(2), personal service by a law enforcement agency is required for all domestic and repeat violence petitions. Accordingly, we have modified the committee’s proposal as set forth in appendix A to clarify that motions to modify domestic or repeat violence injunctions are supplemental petitions and that such supplemental petitions must be served in the same manner as initial petitions under rule 12.610; service of pleadings other than petitions and orders granting injunctions shall be governed by rule 12.080. Given that we are modifying the committee’s proposal, we direct that this rule change be published in The Florida Bar News and we will allow comments to be filed within thirty days from the date of publication, which we will consider prior to the effective date of the change.

Rule 12.615 — Civil Contempt

Both of the committees ask that we adopt a rule governing civil contempt in family law proceedings given the considerable confusion that exists in this area of the law. The proposals of the two committees, however, are quite different. For example, the steering committee’s proposal is limited to support, whereas the rules committee’s proposal governs other matters as well. Other distinctions also are apparent, which we do not list here. We agree that a rule governing civil contempt should be adopted, but we conclude that neither of the committees’ proposals is completely acceptable. As such, we have drafted a modified version that we believe addresses much of the confusion concerning contempt proceedings and is consistent with constitutional principles. To properly understand the procedures set forth in the rule as adopted, it is necessary to examine the law of contempt generally and the problems inherent in contempt proceedings in family law eases.

We have noted on numerous occasions that there are two distinct types of contempt proceedings: (1) criminal contempt proceedings, and (2) civil contempt proceedings. Bowen v. Bowen, 471 So.2d 1274 (Fla.1985); Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

Criminal contempt is used to punish intentional violations of court orders or to vindicate the authority of the court, and “potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings.” Bowen, 471 So.2d at 1277 (emphasis added). See also Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988).

On the other hand, the primary purpose of a civil contempt proceeding is to compel future compliance with a court order. International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). A civil contempt sanction is coercive in nature and is avoidable through obedience. Id. at 827, 114 S.Ct. 2552.

In Bowen, we noted that a present ability to purge the contempt sanction is an essential prerequisite to incarceration for civil contempt. In Johnson v. Bednar, 573 So.2d 822 (Fla.1991), we further concluded that the necessity of a purge provision in imposing a civil contempt sanction is only required where incarceration is ordered. However, after we issued Bednar, the United States Supreme Court concluded that any coercive sanction ordered in' a civil contempt proceeding must afford the contemnor an opportunity to purge; otherwise, the contempt is criminal in nature and requires that all of the constitutional due process requirements inherent in criminal cases be provided to the contemnor, including, in some cases, the right to counsel and to a jury trial. See Bagwell, 512 U.S. at 829, 114 S.Ct. 2552. Only if the fine is compensatory is it appropriate to dispense with a purge provision. Id. Thus, Bagwell effectively overruled our conclusion in Bednar that a purge provision is required only when incarceration is ordered.

In addition to discussing the distinct types of contempt, in Bowen we also set forth the procedures to be followed in civil contempt proceedings involving support in family law matters. First, an initial order directing that support or alimony be paid is entered. Because such an order is based on a finding that the alleged contemnor has the ability to pay, the initial order creates a presumption in subsequent proceedings that there is an ability to pay. Second, in a subsequent proceeding, the movant has the obligation to show that a prior order of support has been entered and that the alleged contemnor has failed to pay all or part of that support. The burden then shifts to the alleged contemnor, who must establish that he or she no longer has the ability to pay the support. The court must then evaluate the evidence and determine whether the alleged contemnor has the present ability to pay the support and has willfully refused to do so. If the court finds in the affirmative, then the court must determine the appropriate sanctions to obtain compliance. Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver’s license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted.

If the court finds that the contemnor’s conduct is serious enough to warrant punishment, then the appropriate remedy is a criminal contempt proceeding under which the contemnor is entitled to the appropriate due process protections available in criminal cases.

While these principles appear to be fairly straightforward, cases reflect that courts often fail to apply the principles properly. Additionally, several problems frequently arise that create confusion in the application of these principles. The first is the situation in which the alleged contemnor fails to attend the hearing on the movant’s motion for contempt. In this situation, problems arise as to the proper procedure for determining whether the alleged contemnor has ability to pay. This situation was addressed in detail by the Fourth District Court of Appeal’s well-reasoned opinion in Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997).

In Pompey, the alleged contemnor, Pompey, failed to attend the hearing on why he should not be held in contempt for failing to pay support. After the hearing, the hearing officer recommended, and the trial court approved, an order finding that Pompey was in willful contempt of court; that he had the present ability to comply; and that he was to be incarcerated for a period of 179 days unless he paid the support arrearage in the amount of $22,100 within a set period of time. Pompey failed to pay the purge amount and an order of arrest and commitment was issued. Pompey appealed, contending that there was no evidence in the record to support a finding that he had the present ability to pay the purge amount set by the court.

The district court first noted that “[t]he ability to comply is the linchpin of civil contempt.” Pompey, 685 So.2d at 1013. The district court then applied our decision in Bowen, concluding that Pompey’s failure to appear and failure to rebut the presumption of his ability to pay was sufficient to find that he willfully failed to pay support; however, the court concluded that some affirmative evidence of Pompey’s present ability to pay was required before he could be incarcerated. Because there was no evidence of his present ability to pay, the district court found that Pompey had been wrongfully incarcerated. The court noted its lack of sympathy for recalcitrant parents who fail to pay support, but concluded that the constitutional rights of individuals required its conclusion.

In analyzing this issue, the district court suggested a procedure to ensure that the constitutional rights of alleged contemnors are protected. Under the suggested procedure, a court is allowed to issue a writ of bodily attachment for a non-appearing con-temnor at a support enforcement hearing; then, when the contemnor is brought before the court, a hearing is held immediately on whether the contemnor has the present ability to pay the purge amount. Because a hearing on the contemnor’s ability to pay is held immediately after the writ of bodily attachment is executed, we agree that such a procedure is constitutional and would permit the subsequent incarceration of the contem-nor if a finding is made that the contemnor does have the present ability to pay the purge. Accordingly, we have provided for such a procedure in the rule.

The second situation in which problems arise is when the alleged contemnor appears and is found to be in contempt and incarceration is imposed, but the incarceration is deferred for a period of time to provide the contemnor with the opportunity to comply. Under this situation, a dilemma arises as to whether, when the contemnor fails to comply within the deferment period, a second hearing is required to reexamine whether the contemnor still has the present ability to comply.

The district courts of appeal are divided on this issue. For instance, in Haymon v. Haymon, 640 So.2d 1204 (Fla. 2d DCA 1994), the Second District Court of Appeal concluded that, even when a finding of present ability to pay already has been made, if incarceration is deferred for a period of time, the contem-nor must again be brought before the court prior to incarceration to determine whether the contemnor still has the present ability to pay. Yet, in Hipschman v. Cochran, 683 So.2d 209, 212 (Fla. 4th DCA 1996), the Fourth District Court of Appeal concluded that, so long as a trial court has already determined that a contemnor has the ability to purge within a short time frame, “due process does not automatically require a second hearing before arrest on the question of whether the contemnor has the ability to pay the purge amount.” In so holding, however, the court recognized that under certain circumstances a hearing would still be required. For example, when the payments are to be made directly to the spouse, a court should hold a hearing to determine whether the contemnor has actually complied. Additionally, the court found that other circumstances may warrant a preincarceration hearing, “which we leave to future cases and to the trial courts’ discretion to address,” id. at 213, and that nothing said by the court was “designed to prevent a contemnor from seeking an additional, preincarceration hearing.” Id. at 212 n. 2.

Based on the confusion and risk of unwarranted incarceration that have occurred in similar situations, we conclude that a second hearing must always be conducted when incarceration is deferred. Simply too many contingencies may occur between the time a purge is ordered and incarceration is to begin to find to the contrary. As the Fourth District recognized, questions frequently arise as to whether the purge has in fact been satisfied. Moreover, if an asset such as stock is to be sold to pay the purge amount and the market drops, the contemnor may no longer have the present ability to pay. Further, while the contemnor may ask for such a hearing even if not routinely scheduled, many contemnors are unrepresented and are unaware that they may request a hearing. We conclude, however, that such a hearing need not be held before incarceration. As when an alleged contemnor fails to appear at the contempt hearing, immediately upon incarceration, the alleged contemnor must be brought before the court for a determination of whether the alleged contemnor continues to have the present ability to pay. In other words, when incarceration is deferred to afford an alleged contemnor the opportunity to comply and the alleged contemnor fails to comply, the court may issue a writ of bodily attachment directing that the alleged con-temnor is to be brought before the court immediately upon execution of the writ.

We acknowledge and are sympathetic to the importance of ensuring that individuals who are entitled to support receive that support. We must be equally diligent, however, in protecting the rights of those obligated to pay support. As the court noted in Pompey:

The consequences of a civil contempt in the area of child support enforcement are potentially greater than those of a criminal contempt. Yet there are few procedural safeguards. Many individuals are unrepresented and may be unaware of their rights — such as the right to periodic review of the contempt order and the right to request a hearing to demonstrate that they no longer possess the ability to pay. The consequences are even more dire for an indigent individual caught in a “Catch-22” situation: he cannot afford to hire an attorney, yet he has no right to an attorney because the court indulges in the assumption that no incarceration can take place unless the contemnor possesses the present ability to pay. See Bowen, 471 So.2d at 1278. Contempt jurisprudence must attempt to balance the need of a court to enforce its orders with the doctrine that a court’s power to obtain compliance should be tempered by safeguards that ensure fundamental fairness.

Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997). We recognize that our decision today will impose the requirement of additional hearings on an already heavily burdened judicial system. However, inconvenience cannot be cited as a reason to deny an individual the due process to which the individual is entitled. Incarceration to obtain compliance with a court order may indeed be warranted when a contemnor has the ability to comply with the order and willfully refuses to do so, but incarceration for the simple failure to pay a debt is clearly prohibited. We will not allow our rules to be modified to serve as the basis for creating a debtor’s prison.

The new contempt rule, which is set forth in appendix A of this opinion, modifies the committees’ proposals to reflect the procedures to be followed in contempt proceedings based on the above analysis. Because of the significant changes to the proposal, we direct that this rule change be published in The Florida Bar News and we will allow comments to be filed within thirty days from the date of publication, which we will consider prior to the effective date of the change.

FORMS

Both committees have requested that we amend a number of forms. Some of the suggested changes are to correct errors in the current forms; others are simply technical or are for clarification or stylistic purposes. Some of these changes were implemented in our recent opinion, which changed certain rules and forms to reflect statutory changes enacted during the last legislative session. See Amendments to the Florida Family Law Rules of Procedure, 717 So.2d 914, 23 Fla. L. Weekly S367 (Fla.1998). Additionally, pursuant to our request, the committees have submitted proposals for alternative methods of making routine amendments to the forms, which we are considering separately from this opinion. At this time, we implement only those proposed changes necessary to correct errors in the forms. The remaining proposed changes should be resubmitted during the quadrennial review process or, if an alternative method of changing the Family Law Forms is adopted by this Court, resubmitted using that alternative amendment method. The following forms and related instructions are amended by this opinion:

Form 12.901(d), Financial Affidavit

Form 12.901(e), Financial Affidavit

Form 12.903(c), Supplemental Petition for Modification of Alimony

Form 12.932, Certificate of Compliance with Mandatory Disclosure

Form 12.941(d), Motion to Modify or Dissolve Temporary Injunction

Form 12.980(b), Petition for Injunction for Protection Against Domestic Violence

Accordingly, we adopt the amendments to the rules and forms as set forth above and as set forth in appendices A and B of this opinion, effective 12:01 a.m., February 1, 1999.

We direct that these changes be published in The Florida Bar News, and we will allow comments from interested parties to be filed within thirty days from the date of publication, which we will consider prior to the effective date of the amendments. We specifically encourage comments to be filed regarding our changes to rules 12.610 regarding service in domestic violence cases and rule 12.615 regarding contempt.

It is so ordered.

HARDING, C.J., and SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

APPENDIX A

RULES REGULATING THE FLORIDA BAR

Rule 10-2.1. Generally

Whenever used in these rules the following words or terms shall have the meaning herein set forth unless the use thereof shall clearly indicate a different meaning:

(a) Unlicensed Practice of Law. The unlicensed practice of law shall mean the practice of law, as prohibited by statute, court rule, and case law of the State of Florida. For purposes of this chapter, it shall not constitute the unlicensed practice of law for a nonlawyer to engage in limited oral communications to assist a person in the completion of blanks on a legal form approved by the Supreme Court of Florida. Oral communications by nonlawyers are restricted to those communications reasonably necessary to elicit factual information to complete the blanks on the form and inform the person how to file the form.

Except for forms filed by the petitioner in an action for an injunction for protection against domestic or repeat violence, Tthe following language shall appear on any form completed pursuant to this rule and any individuals assisting in the completion of the form shall provide their name, business name, address, and telephone number on the form:

This form was completed with the assistance of:

Name of Individual

Name of Business

Address

Telephone Number

Before a nonlawyer assists a person in the completion of a form in the manner set forth in this rule, the nonlawyer shall provide the person with a copy of a disclosure. A copy of the disclosure, signed by both the nonlawyer and the person, shall be given to the person to retain and the nonlawyer shall keep a copy in the person’s file. The disclosure does not act as or constitute a waiver, disclaimer, or limitation of liability. The disclosure shall contain the following provisions:

(Name) told me that he/she is not a lawyer and may not give legal advice or represent me in court.

(Name) told me that he/she may only help me fill out a form approved by the Supreme Court of Florida. (Name) may only help me by asking me factual questions to fill in the blanks on the form. (Name) may also tell me how to file the form.

(Name) told me that he/she is not a lawyer and cannot tell me what my rights or remedies are or how to testify in court.

_I can read English

_I cannot read English but this notice was read to me by (Name) in (Language) which I understand.

(b) Nonlawyer or Nonattorney. For purposes of this chapter, a nonlawyer or nonat-torney is an individual who is not a member of The Florida Bar. This includes, but is not limited to, lawyers admitted in other jurisdictions, law students, law graduates, applicants to The Florida Bar, disbarred lawyers, and suspended lawyers during the period of suspension.

(d) Bar Counsel. Bar counsel is a member of The Florida Bar representing The Florida Bar in any proceeding under these rules. Any unlicensed practice of law staff counsel of The Florida Bar may serve as bar counsel or assistant bar counsel in a particular ease.

(e) Respondent. A respondent is a nonlaw-yer who is accused of engaging in the unlicensed practice of law or whose conduct is under investigation.

(f) Referee. A referee is the judge or retired judge appointed to conduct proceedings as provided under these rules.

(g) Standing Committee. The standing committee is the committee constituted according to the directives contained in these rules.

(h) Circuit Committee. A circuit committee is a local unlicensed practice of law circuit committee.

(i) UPL Staff Counsel. UPL staff counsel is an employee of The Florida Bar employed to perform such duties, as may be assigned, under the direction of the executive director. When used in this rule, the term may include assistant UPL staff counsel.

(j) UPL. UPL is the unlicensed practice of law.

(k) The Board or Board of Governors. The board or board of governors is the board of governors of The Florida Bar.

(l) Designated Reviewer. The designated reviewer is a member of the board of governors responsible for review and other specific duties as assigned by the board of governors with respect to a particular circuit committee or matter. If a designated reviewer recuses or is unavailable, any other board member may serve as designated reviewer in that matter. The designated reviewer will be selected, from time to time, by the board members from the circuit of such circuit committee. If circuits have an unequal number of circuit committees and board members, review responsibility will be reassigned, from time to time, to equalize workloads. On such reassignments responsibility for all pending cases from a particular committee passes to the new designated reviewer. UPL staff counsel will be given written notice of changes in the designated reviewing members for a particular committee.

(m) Executive Committee. The executive committee is the executive committee of the board of governors of The Florida Bar. All acts and discretion required by the board under these rules may be exercised by its executive committee between meetings of the board as may from time to time be authorized by standing policies of the board of governors.

FLORIDA FAMILY LAW RULES OF PROCEDURE

RULE 12.080. SERVICE OF PLEADINGS AND PAPERS

(a) Service.

(1) Family Law Actions Generally. Service of pleadings and papers after commencement of all family law actions except domestic and repeat violence shall be as set forth in Florida Rule of Civil Procedure 1.080, except that rule 1.080 shall be expanded as set forth in subdivisions (b) and (c) to include additional requirements for service of recommended orders and for service on defaulted parties.

(2) Domestic and Repeat Violence Actions. Service of pleadings and papers regarding domestic and repeat violence actions shall be governed by Florida Family Law Rule of Procedure 12.610, where it is in conflict with this rule.

(b) Service and Preparation of Orders and Judgments. A copy of all orders or judgments involving family law matters except domestic and repeat violence shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. The court may require that recommended orders, orders, or judgments be prepared by a party. If the court requires that a party prepare the recommended order, order, or judgment, the party shall furnish the court with stamped, addressed envelopes to all parties for service of the recommended order, order, or judgment. The court also may require that any proposed recommended order, order, or judgment that is prepared by a party be furnished to all parties no less than 24 hours before submission to the court of the recommended order, order, or judgment.

(1) Pleadings asserting new or additional claims against defaulted parties shall be served in the manner provided for service of summons contained in Florida Rule of Civil Procedure 1.070.

(2) Notice of final hearings or trials and court orders shall be served on defaulted parties in the manner provided for service of pleadings and papers contained in Florida Rule of Civil Procedure 1.080.

(3) Final judgments shall be served on defaulted parties as set forth in Florida Rule of Civil Procedure 1.080(h)(2).

Commentary

1995 Adoption. This rule provides that the procedure for service shall be as set forth in Florida Rule of Civil Procedure 1.080 with the following exceptions or additions to that rule. First, subdivision (b) corresponds to and replaces subdivision (h)(1) of rule 1.080 and expands the rule to include recommended orders. Second, this rule expands items that must be served on defaulted parties to ensure that defaulted parties are at least minimally advised of the progress of the proceedings. This rule is not intended to require the furnishing of a proposed recommended order, proposed order, or proposed final judgment to a defaulted party.

Rule 12.170. Counterclaims and Cross-claims

Counterclaims and crossclaims shall be governed by Florida Rule of Civil Procedure 1.170.

RULE 12.285. MANDATORY DISCLOSURE

(a) Application.

(1) Scope. This rule shall apply to all proceedings within the scope of these rules except proceedings involving adoption, simplified dissolution, enforcement, contempt, injunctions for domestic or repeat violence, and uncontested dissolutions when the respondent is served by publication and does not file an answer. Additionally, no financial affidavit or other documents shall be required under this rule from a party seeking attorneys’ fees, suit money, or costs, if the basis for the request is solely under section 57.105, Florida Statutes, or any successor statute. Except for the provisions as to financial affidavits and child support guidelines worksheets, any portion of this rule may be modified by order of the court or agreement of the parties.

(2) Original and Duplicate Copies. Unless otherwise agreed by the parties or ordered by the court, copies of documents required under this rule may be produced in lieu of originals. Originals, when available, shall be produced for inspection upon request. Parties shall not be required to serve duplicates of documents previously served.

(b) Time for Production of Documents.

(1) Temporary Financial Hearings. Any document required under this rule in any temporary financial relief proceeding shall be served on the other party for inspection and copying as follows.

(A) The party seeking relief shall serve the required documents on the other party with the notice of temporary financial hearing, unless the documents have been served under subdivision (b)(2) of this rule.

(B) The responding party shall serve the required documents on the party seeking relief on or before 5:00 p.m., 2 business days before the day of the temporary financial hearing if served by delivery or 7 days before the day of the temporary financial hearing if served by mail, unless the documents have been received previously by the party seeking relief under subdivision (b)(2) of this rule. A responding party shall be given no less than 12 days to serve the documents required under this rule, unless otherwise ordered by the court. If the 45-day period for exchange of documents provided for in subdivision (b)(2) of this rule will occur before the expiration of the 12 days, the provisions of subdivision (b)(2) control.

(2) Initial and Supplemental Proceedings. Any document required under this rule for any initial or supplemental proceeding shall be served on the other party for inspection and copying within 45 days of service of the initial pleading on the respondent.

(c) Disclosure Requirements for Temporary Financial Relief. In any proceeding for temporary financial relief heard within 45 days of the service of the initial pleading or within any extension of the time for complying with mandatory disclosure granted by the court or agreed to by the parties, the following documents shall be served on the other party:

(2) A Child Support" -Guidelines Worksheet in-substantial-conformity-with Family ■Law Form 12.90Kg),--if -the-case involves child support.

(32) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past year. A party may file a transcript of the tax return as provided by Internal Revenue Service Form 4506 in lieu of his or her individual federal income tax return for purposes of a temporary hearing.

(43) IRS forms W-2, 1099, and K-l for the past year, if the income tax return for that year has not been prepared.

(54) Pay stubs or other evidence of earned income for the 3 months prior to service of the financial affidavit.

(d)Parties’ Disclosure Requirements for Initial or Supplement Proceedings. A party shall serve the following documents in any proceeding for an initial or supplemental request for permanent financial relief, including, but not limited to, a request for child support, alimony, equitable distribution of assets or debts, or attorneys’ fees, suit money, or costs:

(1) A financial affidavit in substantial conformity with Family Law Form 12.901(d) if the party’s gross annual income is less than $50,000, or Family Law Form 12.901(e) if the party’s gross annual income is equal to or more than $50,000, which requirement cannot be waived by the parties. The financial affidavits also must be filed with the court. A party may request, by using the Standard Family Law Interrogatories, or the court on its own motion may order, a party whose gross annual income is less than $50,-000 to complete Family Law Form 12.901(e).

(2) A Child.Suppor-t-Guidelines Worksheet in substantial conformity with-Family Law Form 12.901(g)) if the case involves child support

(32) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on. the party’s behalf for the past 3 years.

(43) IRS forms W-2, 1099, and K-l for the past year, if the income tax return for that year has not been prepared.

(54) Pay stubs or other evidence of earned income for the 3 months prior to service of the financial affidavit.

(65) A statement by the producing party identifying the amount and source of all income received from any source during the 3 months preceding the service of the financial affidavit required by this rule if not reflected on the pay stubs produced.

(76) All loan applications and financial statements prepared or used within the 12 months preceding service of that party’s financial affidavit required by this rule, whether for the purpose of obtaining or attempting to obtain credit or for any other purpose.

(87) All deeds within the last 3 years, all promissory notes within the last 12 months, and all present leases, in which the party owns or owned an interest, whether held in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.

(98) All periodic statements from the last 3 months for all checking accounts, and from the last 12 months for all other accounts (for example, savings accounts, money market funds, certificates of deposit, etc.), regardless of whether or not the account has been closed, including those held in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.

(409) All brokerage account statements in which either party to this action held within the last 12 months or holds an interest including those held in the party’s name individually, in the party’s name jointly with any person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.

(44-10) The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account) in which the party is a participant or alternate payee and the summary plan description for any retirement, profit sharing, or pension plan in which the party is a participant or an alternate payee. (The summary plan description must be furnished to the party on request by the plan administrator as required by 29 U.S.C. § 1024(b)(4).)

(4211) The declarations page, the last periodic statement, and the certificate for any — ggoup insurance for all life insurance policies insuring the party’s life or the life of the party’s spouse, whether group insurance or otherwise, and all current health and dental insurance cards covering either of the parties and/or their dependent children.

(4312) Corporate, partnership, and trust tax returns for the last 3 tax years if the party has an ownership or interest in a corporation, partnership, or trust greater than or equal to 30%.

(4413) All promissory notes for the last 12 months, all credit card and charge account statements and other records showing the party’s indebtedness as of the date of the filing of this action and for the last 3 months, and all present lease agreements, whether owed in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.

(4514) All written premarital or marital agreements entered into at any time between the parties to this marriage, whether before or during the marriage. Additionally, in any modification proceeding, each party shall serve on the opposing party all written agreements entered into between them at any time since the order to be modified was entered.

(4615) All documents and tangible evidence supporting the producing party’s claim of special equity or nonmarital status of an asset or debt for the time period from the date of acquisition of the asset or debt to the date of production or from the date of marriage, if based on premarital acquisition.

(4?16) Any court orders directing a party to pay or receive spousal or child support.

(e) Duty to Supplement Disclosure; Amended Financial Affidavit.

(1) Parties have a continuing duty to supplement documents described in this rule, including financial affidavits, whenever a material change in their financial status occurs.

(2) If an amended financial affidavit or an amendment to a financial affidavit is filed, the amending party also shall serve any subsequently discovered or acquired documents supporting the amendments to the financial affidavit.

(f) Sanctions. Any document to be produced under this rule that is served on the opposing party fewer than 24 hours before a nonfinal hearing or in violation of the court’s pretrial order shall not be admissible in evidence at that hearing unless the court finds good cause for the delay. In addition, the court may impose other sanctions authorized by rule 12.380 as may be equitable under the circumstances. The court may also impose sanctions upon the offending lawyer in lieu of imposing sanctions on a party.

(g) Extensions of Time for Complying with Mandatory Disclosure. By agreement of the parties, the time for complying with mandatory disclosure may be extended. Either party also may file, at least 5 days before the due date, a motion to enlarge the time for complying with mandatory disclosure. The court shall grant the request for good cause shown.

(h) Objections to Mandatory Automatic Disclosure. Objections to the mandatory automatic disclosure required by this rule shall be served in writing at least 5 days prior to the due date for the disclosure or the objections shall be deemed waived. The filing of a timely objection, with a notice of hearing on the objection, automatically stays mandatory disclosure for those matters within the scope of the objection. For good cause shown, the court may extend the time for the filing of an objection or permit the filing of an otherwise untimely objection. The court shall impose sanctions for the filing of meritless or frivolous objections.

(i) Certificate of Compliance. All parties subject to automatic mandatory disclosure shall file with the court a certificate of compliance, Florida Family Law Form 12.932, identifying with particularity the documents which have been delivered and certifying the date of service of the financial affidavit and documents by that party.

(j) Child Support Guidelines Worksheet. If the case involves child support, the parties shall file with the court at or prior to a hearing to establish or modify child support a Child Support Guidelines Worksheet in substantial conformity with Florida Family Law Form 12.901(g). This requirement cannot be waived by the parties.

(jk) Place of Production.

(1) Unless otherwise agreed by the parties or ordered by the court, all production required by this rule shall take place in the county where the action is pending and in the office of the attorney for the party receiving production. Unless otherwise agreed by the parties or ordered by the court, if a party does not have an attorney or if the attorney does not have an office in the county where the action is pending, production shall take place in the county where the action is pending at a place designated in writing by the party receiving production, served at least 5 days before the due date for production.

(2) If venue is contested, on motion by a party the court shall designate the place where production will occur pending determination of the venue issue.

(kl) Failure of Defaulted Party to Comply. Nothing in this rule shall be deemed to preclude the entry of a final judgment when a party in default has failed to comply with this rule.

Commentary

1995 Adoption. This rule creates a procedure for automatic financial disclosure in family law cases. By requiring production at an early stage in the proceedings, it is hoped that the expense of litigation will be minimized. See Dralus v. Dralus, 627 So.2d 505 (Fla. 2d DCA 1993); Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991); and Katz v. Katz, 505 So.2d 25 (Fla. 4th DCA 1987). A limited number of requirements have been placed upon parties making and spending less than $50,000 annually unless otherwise ordered by the court. In cases where the income or expenses of a party are equal to or exceed $50,000 annually, the requirements are much greater. Except for the provisions as to financial affidavits, other than as set forth in subdivision (k), any portion of this rule may be modified by agreement of the parties or by order of the court. For instance, upon the request of any party or on the court’s own motion, the court may order that the parties to the proceeding comply with some or all of the automatic mandatory disclosure provisions of this rule even though the parties do not meet the income requirements set forth in subdivision (d). Additionally, the court may, on the motion of a party or on its own motion, limit the disclosure requirements in this rule should it find good cause for doing So.

Committee Notes

1998 Amendment. If one party has not provided necessary financial information for the other party to complete a child support guidelines worksheet, a good faith estimate should be made.

1997 Amendment. Except for the form of financial affidavit used, mandatory disclosure is made the same for all parties subject to the rule, regardless of income. The amount of information required to be disclosed is increased for parties in the under-$50,000 category and decreased for parties in the $50,000-or-over category. The standard family law interrogatories are no longer mandatory, and their answers are designed to be supplemental and not duplicative of information contained in the financial affidavits.

RULE 12.365. EXPERT WITNESSES

(a) Application. The procedural requirements in this rule shall apply whenever an expert is appointed by the court or retained by a party. This rule applies to all experts including, but not limited to, medical, psychological, social, financial, vocational, and economic experts. Where in conflict, this rule shall supersede Florida Rule of Civil Procedure 1.360.

(b) Communication with Court by Expert. No expert may communicate with the court without prior notice to the parties and their attorneys, who shall be afforded the opportunity to be present and heard during the communication between the expert and the court. A request for communication with the court may be conveyed informally by letter or telephone. Further communication with the court, which may be conducted informally, shall be done only with notice to all parties.

(1) Service. Any opinion of an expert appointed by the court shall be served in writing on the parties within 10 days of the formation of the opinion, but not less than 30 days before trial.

(2) Discovery. The parties shall be permitted a reasonable opportunity to conduct discovery after service of the expert’s opinion including, but not limited to, the right to take the deposition of the expert.

(3) Submission to Court. No expert opinion shall be filed with or otherwise submitted to the court until the opinion is introduced as evidence at á hearing with notice to all parties.

(d) Opinion of Expert Not Appointed by Court.

(1) Service. Any opinion of an expert retained by a party who is expected to testify at trial shall be served in writing on all other parties within 10 days of formation of the opinion, but not less than 30 days before trial.

(3) Submission to Court. No expert opinion shall be filed with or otherwise submitted to the court until the opinion is introduced as evidence at a hearing with notice to all parties.

(e) Use of Evidence. The court shall not entertain any