Amendments to the Florida Family Law Rules of Procedure (853 So. 2d 303, 2003)

Citations

853 So. 2d 303

Full opinion text

PER CURIAM.

We have for consideration the biennial report of proposed rule changes filed by The Florida Bar’s Family Law Rules Committee (Rules Committee), in accordance with Florida Rule of Judicial Administration 2.130(c)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to Florida Family Law Rules of Procedure 12.200, Case Management and Pretrial Conferences; 12.280, General Provisions Governing Discovery; 12.285, Mandatory Disclosure; 12.340, Interrogatories to Parties; 12.380, Failure to Make Discovery; Sanctions; 12.400, Confidentiality of Records and Proceedings; 12.490, General Masters; 12.491, Child Support Enforcement; 12.610, Injunctions for Domestic and Repeat Violence; 12.615, Civil Contempt in Support Matters; and 12.750, Family Self-Help Programs. Further, the Rules Committee proposes amendments to forms 12.902(b), Family Law Financial Affidavit (Short Form); 12.902(c), Family Law Financial Affidavit; 12.930(a), Notice of Service of Standard Family Law Interrogatories; 12.930(b), Standard Family Law Interrogatories for Original or Enforcement Proceedings; 12.930(c), Standard Family Law Interrogatories for Modification Proceedings; and 12.932, Certificate of Compliance with Mandatory Disclosure. In accordance with Florida Rule of Judicial Administration 2.130(c)(2), the Rules Committee submitted its proposals to the Board of Governors of The Florida Bar and published the proposals for comment. The Board of Governors unanimously approved the proposed changes. This Court published the proposals for comment. No comments were received.

ANALYSIS

After considering the proposed amendments and hearing oral argument, we adopt the Rules Committee’s amendments as proposed, with the exception of rule 12.400, Confidentiality of Records and Proceedings, for which we adopt a modified version. Rather than describing each amendment, we focus on the more significant amendments.

We adopt the Rules Committee’s proposal to amend rule 12.610, Injunctions for Domestic and Repeat Violence, to add references to the newly created cause of action for “dating violence,” in conformity with the 2002 amendments to sections 784.046-784.048, Florida Statutes. See ch. 2002-55, §§ 21-23, Laws of Fla. We further amend subdivisions (b)(1)(A) and (b)(1)(B) of rule 12.610 to remove the specific requirements for issuance of an injunction, replacing them with the phrase “as provided by law.” This amendment will obviate the need to amend the rule each time the statute is amended. Finally, we create subdivision (b)(1)(C), which references injunctions for protection against dating violence. We also amend the following rules to add references to dating violence: 12.200, Case Management and Pretrial Conferences; 12.285, Mandatory Disclosure; 12.490, General Masters; and 12.750, Family Self-Help Programs.

We amend subdivision (i) of rule 12.285, Mandatory Disclosure, to add a sentence stating that only the financial affidavit and the child support guidelines worksheet shall be filed with the court without a court order. Rule 12.285 as currently written makes clear what information must be exchanged between the parties in order to promote the orderly resolution of domestic relations cases and also provides for mandatory disclosure of specified documents. Specifically, rule 12.285(b)(1) provides that these documents “shall be served on the other party for inspection and copying.” In prior amendments to this rule we attempted to “eliminate as much complexity as possible” and “altered the mandatory disclosure requirements by requiring less mandatory disclosure in cases involving smaller amounts of income.” In re Family Law Rules of Procedure, 663 So.2d 1047, 1048 (Fla.1995). However, despite our attempt to eliminate complexity, and in particular because of the large number of unrepresented litigants, confusion has arisen as to whether the documents required to be produced for the other party should also be filed with the court.

Rule 12.285® currently explains that a certificate of compliance shall be filed with the court, “identifying with particularity the documents which have been delivered.” The amendment to rale 12.285 will make it clear that only financial affidavits and the child support guidelines worksheet shall be filed with the court. This amendment serves several purposes. First, it clarifies for all litigants that most of the mandatory disclosure documents, liké other discovery specified in the Florida Rules of Civil Procedure, are to be exchanged between the parties but not filed with the court without a court order. See, e.g., Fla. R. Civ. P. 1.310(f)(3) (limiting filing of depositions); 1.340(e) (limiting filing of interrogatories); 1.350(d) (limiting filing of documents). In this way, the amendment limits the volume of documents in the court file.

Second, and importantly, the amendment prevents a party from filing certain documents with the court that are unnecessary to the judicial resolution of the case, but that may contain sensitive information. Third, by excluding documents such as income tax returns and wage statements that contain social security numbers from the court file, it limits the possibility of identity theft, a crime that is on the rise. Thus, we agree with the Rules Committee that amending the rule to expressly state that only the financial affidavit and the child support guidelines worksheet shall be filed with the court without a court order will serve multiple important goals.

We also note that this recommendation is in accordance with the Legislature’s Study Committee on Public Records, which issued a report on February 15, 2003. The Study Committee’s report, titled “Examination of the Effects of Advanced Technologies on Privacy and Public Access to Court Records and Official Records,” contained several recommendations. Its first recommendation requested that this Court

reexamine Fam. L.R.P. 12.285 to minimize the collection and filing of unnecessary personal and identifying information, but to allow for exchange of meaningful substantive information between the parties and, if necessary, access to the court.

The proposed amendment to rule 12.285 fully complies with this recommendation as well as our prior opinion in which we eliminated the use of social security numbers in many forms filed with the court. Accordingly, we adopt the Rules Committee’s proposed amendment to rule 12.285.

The Rules Committee also proposes amending rule 12.400, Confidentiality of Records and Proceedings, to permit the sealing of the financial information in a family law case file. The Rules Committee states that on several occasions it has unsuccessfully asked this Court to approve rales regarding the sealing of financial information. However, in Amendments to Florida Family Law Rules of Procedure, 723 So.2d 208, 210 (Fla.1998) (“Amendments ”), this Court offered a procedure called “conditional sealing” that would meet the requirement for public access to judicial records as set forth in Florida Rule of Judicial Administration 2.051. The Court stated;

Under the Family Law Rules, the sealing of records is governed by rule 2.051. Under that rale, 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.

Id. In light of this Court’s statement, the Rules Committee proposes amending rule 12.400 to add subdivision (c) to provide for conditional sealing of the financial information. Because the Court in Amendments did not address the type of notice required by Florida Rule of Judicial Administration 2.051(c)(9)(D) for a conditional sealing, the Rules Committee proposes that notice be afforded by filing the order conditionally sealing the financial information in the court file, and posting the order sealing the financial information on the bulletin board or front door of the courthouse for a period of fifteen days following rendition of the order. Under the proposed amendment, the procedure for handling a request to reopen a file that has been conditionally sealed would involve filing a motion to reopen the records, providing notice to the parties, and conducting a hearing to determine if the motion should be granted.

We agree with the Rules Committee that a rule permitting the conditional sealing of the financial information in a family law court file is desirable to protect family law litigants from abuse, such as the use of the financial information by individuals for purposes unrelated to government or judicial accountability, or first amendment rights. Therefore, we adopt the Rules Committee’s proposal to create new subdivision (c) permitting conditional sealing. However, we amend the Rules Committee’s proposal in three ways.

First, we divide new subdivision (c) into three sections. The first section describes when conditional sealing is appropriate. The second section describes how notice of the conditional sealing should be given. The third section explains how an individual may move to reopen conditionally sealed information.

With respect to the notice requirement, rather than having the order sealing the financial information posted on the bulletin board or front door of the courthouse for a period of fifteen days, we amend the rule to state that notice of the sealing shall be as required by Florida Rule of Judicial Administration 2.051(c)(9)(D). Rule 2.051(c)(9)(D) provides that “except as provided by law or rule of court, reasonable notice shall be given to the public of any order closing any court record.”

Finally, we add further commentary to rule 12.400 to state that the adoption of a procedure for the conditional sealing of financial information does not change the burden of proof established by this Court in Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988), wherein we stated “[t]he burden of proof ... shall always be on the party seeking closure.” Our reasons for placing the burden on the party seeking closure and maintaining closure remains the same today as it did when we issued Barron in 1988; that is, the strong presumption of openness of court proceedings, and the fact that those challenging the closure order will generally have little or no knowledge of the specific grounds requiring closure. See id. at 118-19. We believe that this modified conditional sealing procedure strikes the proper balance between safeguarding the public’s right to view filed records of court proceedings and protecting the personal and financial information of family law litigants.

Accordingly, we amend the Florida Family Law Rules of Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The commentary is offered for explanation only and is not adopted as an official part of the rules. The forms are adopted as set forth in.the appendix to this opinion, fully engrossed, effective for immediate use. Further, the amendments to the following rules shall become effective immediately because they reference the cause of action for dating violence: 12.200, Case Management and Pretrial Conferences; 12.285, Mandatory Disclosure; 12.490, General Masters; 12.610, Injunctions for Domestic and Repeat Violence; and 12.750, Family Self Help Programs. The remainder of the amendments shall become effective January 1, 2004, at 12:01 a.m.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

Appendix

RULE 12.200. CASE MANAGEMENT AND PRETRIAL CONFERENCES

(a) Case Management Conference.

(1)Family Law Proceedings, Generally. A case management conference may be ordered by the court at any time on the court’s initiative. A party may request a case management conference 30 days after service of a petition or complaint. At such a conference the court may:

(A) schedule or reschedule the service of motions, pleadings, and other papers;

(B) set or reset the time of trials, subject to.rule 12.440;

(D) limit, schedule, order, or expedite discovery;

(E) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;

(F) schedule or hear motions related to admission or exclusion of evidence;

(G) pursue the possibilities of settlement;

(H) require filing of preliminary stipulations if issues can be narrowed;

(I) refer issues to a master for findings of fact, if consent is obtained as provided in rules 12.490 and 12.492 and if no significant history of domestic, or repeat, or dating violence that would compromise the process is involved in the case;

(J) refer the parties to mediation if no significant history of domestic, or repeat, or dating violence that would compromise the mediation process is involved in the case and consider allocation of expenses related to the referral; or refer the parties to counseling if no significant history of domestic, or repeat, or dating violence that would compromise the process is involved in the case and consider allocation of expenses related to the referral;

(K) coordinate voluntary binding arbitration consistent with Florida law if no significant history of domestic, or repeat, or dating violence that would compromise the process is involved in the case;

(L) appoint court experts and allocate the expenses for the appointments;

(M) refer the cause for a home study or psychological evaluation and allocate the initial expense for that study;

(N) appoint an attorney or guardian ad litem for a minor child or children if required and allocate the expense of the appointment; and

(O) schedule other conferences or determine other matters that may aid in the disposition of the action.

(2) Adoption Proceedings. A case management conference shall be ordered by the court within 60 days of the filing of a petition when

(A) there is a request for a waiver of consent to a termination of parental rights of any person required to consent by section 63.062, Florida Statutes;

(B) notice of the hearing on the petition to terminate parental rights pending adoption is not being afforded a person whose consent is required but who has not consented;

(D) an intermediary, attorney, or agency is seeking fees, costs, or other expenses in excess of those provided under sections 63.097 or 63.212(5), Florida Statutes;

(E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or

(F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending adoption.

(b) Pretrial Conference. After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:

(1) proposed stipulations and the simplification of the issues;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;

(4) the limitation of the number of expert witnesses; and

(5)any matters permitted under subdivision (a) of this rule.

(c) Notice. Reasonable notice shall be given for a ease management conference, and 20 days’ notice shall be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference shall be specified in the order. Orders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court.

(d) Case Management and Pretrial Order. The court shall make an order reciting the action taken at a conference and any stipulations made. The order shall control the subsequent course of the action unless modified to prevent injustice.

Commentary

1995 Adoption. This rule addresses issues raised by decisions such as 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), regarding the cost of marital litigation. This rule provides an orderly method for the just, speedy, and inexpensive determination of issues and promotes amicable resolution of disputes.

This rule replaces and substantially expands Florida Rule of Civil Procedure 1.200 as it pertained to family law matters. Under this rule, a court may convene a case management conference at any time and a party may request a case management conference 30 days after service of a petition or complaint. The court may consider the following additional items at the conference: motions related to admission or exclusion of evidence, referral of issues to a master if consent is obtained pursuant to the rules, referral of the parties to mediation, referral of the parties to counseling, coordination of voluntary binding arbitration, appointment of court experts, referral of the cause for a home study psychological evaluation, and appointment of an attorney or guardian ad litem for a minor child.

Committee Note

1997 Amendment. In In re Adoption of Baby E.A.W., 658 So.2d 961 (Fla.1995), and other cases involving protracted adoption litigation, it becomes clear that the earlier the issue of notice is decided by the court, the earlier the balance of the issues can be litigated. Because both parents’ constitutional standing and guarantees of due process require notice and an opportunity to be heard, this rule amendment will help solve the problems of adoption litigation lasting until a child’s third, fourth, or even fifth birthday. Furthermore, this rule will encourage both parents to be more candid with intermediaries and attorneys involved in the adoption process.

In E.A.W., 658 So.2d at 979, Justice Kogan, concurring in part and dissenting in part, stated: “I personally urge the Family Law Rules Committee ... to study possible methods of expediting review of disputes between biological and adoptive parents.” This rule expedites resolution of preliminary matters concerning due process in difficult adoption disputes. This rule also mandates early consideration of the child’s rights to due process at early stages of adoption litigation.

Noncompliance with subdivision (a)(2) of this rule shall not invalidate an otherwise valid adoption.

RULE 12.280. GENERAL PROVISIONS GOVERNING DISCOVERY

Florida Rule of Civil Procedure 1.280 shall govern general provisions concerning discovery in family law matters with the following exceptions:

(a) Supplementing of Responses. A party is under a duty to amend a prior response or disclosure if the party:

(1) obtains information or otherwise determines that the prior response or disclosure was incorrect when made; or

(2) obtains information or otherwise determines that the prior response or disclosure, although correct when made, is no longer materially true or complete.

(b) Time for Serving Supplemental Responses. Any supplemental response served pursuant to this rule shall be served as soon as possible after discovery of the incorrect information or change, but in no case shall the supplemental response be served later than 24 hours before any applicable hearing absent a showing of good cause.

(c) Documents Considered Confidential. A determination as to the confidentiality of a court record shall be made in accordance with Florida Rule of Judicial Administration 2.051.

(d) Sealing of Records. Records found to be confidential under Florida Rule of Judicial Administration 2.051 shall be sealed on request of a party.

Commentary

1995 Adoption. Florida Rule of Civil Procedure 1.280 is to govern the general discovery provisions in family law matters with the exceptions set forth above. Subdivision (a) of this rule alters rule 1.280(e) by placing a duty on parties in family law matters to supplement responses. Under rule 1.280(e), no supplemental response is required. Subdivisions (b), (c), and (d) of this rule are in addition to the general requirements of rale 1.280 and have no counterparts in the Rules of Civil Procedure. Subdivisions (c) and (d) have been implemented in recognition of the fact that family law cases often involve sensitive information that should be deemed confidential under Florida Rule of Judicial Administration 2.051. For instance, financial records filed may contain information regarding a family business, which, if public, could provide competitors with an advantage and adversely affect the family business.

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, or dating violence, and uncontested disso-lutions 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) 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.

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

(4) 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 Florida Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) 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 Florida Family Law Rules of Procedure Form 12.902(c).

(2) 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.

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

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

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(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).)

(11) The declarations page, the last periodic statement, and the certificate 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.

(12) 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%.

(13) 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.

(14) 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.

(15) 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.

(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 sane-tions 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 Rules of Procedure 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. Except for the financial affidavit and child support guidelines worksheet, no documents produced under this rule shall be filed in the court file without a court order.

(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 Rules of Procedure Form 12.902(e). This requirement cannot be waived by the parties.

(k) 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.

(l) 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

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.

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.

RULE 12.340. INTERROGATORIES TO PARTIES

Interrogatories to parties shall be governed generally by Florida Rule of Civil Procedure 1.340, with the following exceptions.

(a) Service of Interrogatories.

(1) Initial Interrogatories. Initial interrogatories to parties in original and enforcement actions shall be those set forth in Florida Family Law Rules of Procedure Form 12.930(b). Parties governed by the mandatory disclosure requirements of rule 12.285 may serve the interrogatories set forth in Florida Family Law Rules of Procedure Form 12.930(b) as set forth in rule 1.340.

(2) Modification Interrogatories. Interrogatories to parties in cases involving modification of a final judgment shall be those set forth in Florida Family Law Rules of Procedure Form 12.930(c). Parties governed by the mandatory disclosure requirements of rule 12.285 may serve the interrogatories set forth in Florida Family Law Rules of Procedure Form 12.930(c) as set forth in rule 1.340.

(b) Additional Interrogatories. Ten interrogatories, including subparts, may be sent to a party, in addition to the standard interrogatories contained in Florida Family Law Rules of Procedure Form 12.930(b) or Florida Family Law Rules of Procedure Form 12.930(c). A party must obtain permission of the court to send more than teelO additional interrogatories.

Commentary

1995 Adoption. For parties governed under the disclosure requirements of rule 12.285(d) (income or expenses of $50,000 or more), the answers to the interrogatories contained in Form 12.930(b) must be automatically served on the other party. For parties governed under the disclosure requirements of rule 12.285(c) (income and expenses under $50,000), the service of the interrogatories contained in Form 12.930(b) is optional as provided in Florida Rule of Civil Procedure 1.340. Additionally, under this rule, 10 additional interrogatories, including subparts, may be submitted beyond those contained in Florida Family Law Rules of Procedure Form 12.930(b). Leave of court is required to exceed 10 additional interrogatories. The provisions of Florida Rule of Civil Procedure 1.340 are to govern the procedures and scope of the additional interrogatories.

Committee Note

1997 Amendment. The rule was amended to conform to the changes made to rule 12.285, Mandatory Disclosure.

RULE 12.380. FAILURE TO MAKE DISCOVERY; SANCTIONS

Florida Rule of Civil Procedure 1.380 shall govern the failure to make discovery in family law matters and related sanctions, with the following additions.

(a) A party may apply for an order compelling discovery in the manner set forth in rule 1.380 for the failure of any person to comply with any discovery request or requirement under the family law rules, including, but not limited to, the failure to comply with Florida Family Law Rule-ef Procedurerule 12.285.

(b) In the case of rule 1.380(c), the court may defer ruling on the party’s motion for sanctions until the conclusion of the matter in controversy.

RULE 12.400. CONFIDENTIALITY OF RECORDS AND PROCEEDINGS

(a) Closure of Proceedings or Records. Closure of court proceedings or sealing of records may be ordered by the court only as provided by Rule of Judicial Administration 2.051.

(b) In Camera Inspections. The court shall conduct an in camera inspection of any records sought to be sealed and consider the contents of the records in determining whether they should be sealed.

(1)The court has the authority to conditionally seal the financial information required by rule 12,285 if it is likely that access to the 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. Any such order sealing the financial information is conditional in that the information shall 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.

(2) Notice of conditional sealing shall be as required by Rule of Judicial Administration 2.051(c)(9)(D).

(3) Upon receipt of a motion to reopen conditionally sealed financial information, the court shall schedule a hearing on the motion with notice provided to the movant and parties.

Commentary

1995 Adoption. Judicial proceedings and records should be public except when substantial compelling circumstances, especially the protection of children or of business trade secrets, require otherwise. Family law matters frequently present such circumstances. It is intended that this rule be applied to protect the interests of minor children from offensive testimony and to protect children in a divorce proceeding.

2003 Amendment. The adoption of a procedure for conditional sealing of the financial information does not change the burden of proof for closure of filed records of court proceedings set forth in Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988).

RULE 12.490. GENERAL MASTERS

(a) General Masters. Judges of the circuit court may appoint as many general masters from among the members of The Florida Bar in the circuit as the judges find necessary, and the general masters shall continue in office until removed by the court. The order making an appointment shall be recorded. Every person appointed as a general master shall take the oath required of officers by the ^constitution and the oath shall be recorded before the master discharges any duties of that office.

(b) Reference.

(1) No matter shall be heard by a general master without an appropriate order of reference and the consent to the referral of all parties. Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.

(A) A written objection to the referral to a general master must be filed within 10 days of the service of the order of referral.

(B) If the time set for the hearing is less than 10 days after service of the order of referral, the objection must be filed before commencement of the hearing.

(C) If the order of referral is served within the first 20 days after the service of the initial process, the time to file an objection is extended to the time within which to file a responsive pleading.

(D) Failure to file a written objection within the applicable time period is deemed to be consent to the order of referral.

(2) The order of referral shall be in substantial conformity with Florida Family Law Rules of Procedure Form 12.920(b), and shall contain the following language in bold type:

A REFERRAL TO A GENERAL MASTER REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BEFORE THE GENERAL MASTER, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE OF THIS ORDER. IF THE TIME SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE BEFORE THE HEARING. IF THIS ORDER IS SERVED WITHIN THE FIRST 20 DAYS AFTER SERVICE OF PROCESS, THE TIME TO FILE AN OBJECTION IS EXTENDED TO THE TIME WITHIN WHICH A RESPONSIVE PLEADING IS DUE. FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE A CONSENT TO THE REFERRAL.

REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE GENERAL MASTER SHALL BE BY EXCEPTIONS AS PROVIDED IN RULE 12.490(f), FLA. FAM. L.R.P. A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, MAY BE REQUIRED TO SUPPORT THE EXCEPTIONS.

(3)The order of referral shall state with specificity the matter or matters being referred and the name of the general master to whom the matter is referred. The order of referral also shall state whether electronic recording or a court reporter is provided by the court, or whether a court reporter, if desired, must be provided by the litigants.

(4) When a reference is made to a general master, any party or the general master may set the action for hearing.

(c) General Powers and Duties. Every general master shall perform all of the duties that pertain to the office according to the practice in chancery and rules of court and under the direction of the court except those duties related to domestic, or repeat, and dating violence. A general master shall be empowered to administer oaths and conduct hearings, which may include the taking of evidence. All grounds for disqualification of a judge shall apply to general masters.

(d) Hearings.

(1) The general master shall assign a time and place for proceedings as soon as reasonably possible after the reference is made and give notice to each of the parties either directly or by directing counsel to file and serve a notice of hearing. If any party fails to appear, the general master may proceed ex parte or may adjourn the proceeding to a future day, giving notice to the absent party of the adjournment. The general master shall proceed with reasonable diligence in every reference and with the least delay practicable. Any party may apply to the court for an order to the general master to speed the proceedings and to make the report and to certify to the court the reason for any delay.

(2) The general master shall take testimony and-* establish a record which may be by electronic means as provided by Florida Rule of Judicial Administration 2.070(d)(gXS) or by a court reporter. The parties may not waive this requirement.

(3) The general master shall have authority to examine under oath the parties and all witnesses upon all matters contained in the reference, to require production of all books, papers, writings, vouchers, and other documents applicable to it, and to examine on oath orally all witnesses produced by the parties. The general master may take all actions concerning evidence that can be taken by the circuit court and in the same manner. The general master shall have the same powers as a circuit judge to utilize communications equipment as defined and regulated by Florida Rule of Judicial Administration 2.071.

(4) The notice or order setting the cause for hearing shall be in substantial conformity with Florida Family Law Rules of Procedure Form 12.920(c) and shall contain the following language in bold type:

SHOULD YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATION MADE BY THE GENERAL MASTER, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH RULE 12.490(f), FLA. FAM. L.R.P. YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’S REVIEW.

(5) The notice or order setting a matter for hearing shall state whether electronic recording or a court reporter is provided by the court. If the court provides electronic recording, the notice also shall state that any party may provide a court reporter at that party’s expense.

(e)General Master’s Report. The general master shall file a report that includes findings of fact and conclusions of law, together with recommendations. If a court reporter was present, the report shall contain the name and address of the reporter.

(f) Filing Report; Notice; Exceptions. The general master shall file the report and recommendations and serve copies on all parties. The parties may serve exceptions to the report within 10 days from the time it is served on them. Any party may file cross-exceptions within 5 days from the service of the exceptions, provided, however, that the filing of cross-exceptions shall not delay the hearing on the exceptions unless good cause is shown. If no exceptions are filed within that period, the court shall take appropriate action on the report. If exceptions are filed, they shall be heard on reasonable notice by either party or the court.

(g) Record. For the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, shall be provided to the court by the party seeking review if necessary for the court’s review.

(1) The record shall consist of the court file, including the transcript of the relevant proceedings before the general master and all depositions and evidence presented to the general master.

(2) The transcript of all relevant proceedings, if any, shall be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions. If less than a full transcript of the proceedings taken before the general master is ordered prepared by the excepting party, that party shall promptly file a notice setting forth the portions of the transcript that have been ordered. The responding parties shall be permitted to designate any additional portions of the transcript necessary to the adjudication of the issues raised in the exceptions or cross-exceptions.

(3) The cost of the original and all copies of the transcript of the proceedings shall be borne initially by the party seeking review, subject to appropriate assessment of suit monies. Should any portion of the transcript be required as a result of a designation filed by the responding party, the party making the designation shall bear the initial cost of the additional transcript.

Commentary

1995 Adoption. This rule is a modification of Florida Rule of Civil Procedure 1.490. That rule governed the appointment of both general and special masters. The appointment of special masters is now governed by Florida Family Law Rule of Procedure 12.492. This rule is intended to clarify procedures that were required under rule 1.490, and it creates additional procedures. The use of general masters should be implemented only when such use will reduce costs and expedite eases in accordance with 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).

RULE 12.491. CHILD SUPPORT ENFORCEMENT

(a) Limited Application. This rule shall be effective only when specifically invoked by administrative order of the chief justice for use in a particular county or circuit.

(b) Scope. This rule shall apply to proceedings for „

(1) the establishment, enforcement, or modification of child support, or

(2) the enforcement of any support order for the custodial parent in conjunction with an ongoing child support or child support arrearage order,

when a party seeking support is receiving services pursuant to Title IV-D of the Social Security Act (42 U.S.C. §§ 651 et seq.) and to non-Title IV-D proceedings upon administrative order of the chief justice.

(c) Support Enforcement Hearing Officers. The chief judge of each judicial circuit shall appoint such number of support enforcement hearing officers for the circuit or any county within the circuit as are necessary to expeditiously perform the duties prescribed by this rule. A hearing officer shall be a member of The Florida Bar unless waived by the chief justice and shall serve at the pleasure of the chief judge and a majority of the circuit judges in the circuit.

(d) Referral. Upon the filing of a cause of action or other proceeding for the establishment, enforcement, or modification of support to which this rule applies, the court or clerk of the circuit court shall refer such proceedings to a support enforcement hearing officer, pursuant to procedures to be established by administrative order of the chief judge.

(e) General Powers and Duties. The support enforcement hearing officer shall be empowered to issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence. A support enforcement hearing officer does not have the authority to hear contested paternity cases. Upon the receipt of a support proceeding, the support enforcement hearing officer shall:

(1) assign a time and place for an appropriate hearing and give notice to each of the parties as may be required by law;

(2) take testimony and establish a record, which record may be by electronic means as provided by Florida Rule of Judicial Administration 2.070(dj(g)(3);

(3) accept voluntary acknowledgment of paternity and support liability and stipulated agreements setting the amount of support to be paid; and

(4)evaluate the evidence and promptly make a recommended order to the court. Such order shall set forth findings of fact.

(f) Entry of Order and Relief from Order. Upon receipt of a recommended order, the court shall review the recommended order and shall enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings. Any party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry. Any party may file a cross-motion to vacate within 5 days of service of a motion to vacate, provided, however, that the filing of a cross-motion to vacate shall not delay the hearing on the motion to vacate unless good cause is shown. A motion to vacate the order shall be heard within 10 days after the movant applies for hearing on the motion.

(g) Modification of Order. Any party affected by the order may move to modify the order at any time.

(h) Record. For the purpose of hearing on a motion to vacate, a record, substantially in conformity with this rale, shall be provided to the court by the party seeking review.

(1) The record shall consist of the court file, including the transcript of the proceedings before the hearing officer, if filed, and all depositions and evidence presented to the hearing officer.

(2) The transcript of all relevant proceedings shall be delivered to the judge and provided to opposing counsel not less than 48 hours before the hearing on the motion to vacate. If less than a full transcript of the proceedings taken before the hearing officer is ordered prepared by the moving party, that party shall promptly file a notice setting forth the portions of the transcript that have been ordered. The responding party shall be permitted to designate any additional portions of the transcript necessary to the adjudication of the issues raised in the motion to vacate or cross-motion to vacate.

Commentary

1995 Adoption. Previously, this rule was contained in Florida Rule of Civil Procedure 1.491. The new rule is substantially the same as previous rule 1.491, with the following additions.

It is intended that any administrative order issued by the chief justice of the Florida Supreme Court under rule 1.491(a) shall remain in full force and effect as though such order was rendered under this rule until changed by order of that same court.

Subdivision (e) now makes clear that contested paternity cases are not to be heard by support enforcement hearing officers.

Subdivision (h) has been added to provide requirements for a record.

The following notes and commentary have been carried forward from rule 1.491.

1988 Adoption. Title: The terminology “hearing officer” is used rather than “master” to avoid confusion or conflict with rule 1.490.

Subdivision (a): The rule is intended as a fall back mechanism to be used by the chief justice as the need may arise.

Subdivision (b): The expedited process provisions of the applicable federal regulations apply only to matters which fall within the purview of Title IV-D. The committee recognizes, however, that the use of hearing officers could provide a useful case flow management tool in non-Title IV-D support proceedings.

It is contemplated that a circuit could make application to the chief justice for expansion of the scope of the rule upon a showing of necessity and good cause. It is the position of the representative of the Family Law Section of The Florida Bar that reference of non-Title IV-D proceedings should require the consent of the parties as is required by rule 1.490(c).

Subdivision (c): It is the position of the committee that hearing officers should be members of the Bar in that jurisdictional and other legal issues are likely to arise in proceedings of this nature. The waiver provision is directed to small counties in which it may be difficult or impossible to find a lawyer willing to serve and to such other special circumstances as may be determined by the chief justice.

Subdivision (d): This paragraph recognizes that the mechanics of reference and operation of a program are best determined at the local level.

Subdivision (e): This paragraph is intended to empower the hearing officer to fully carry out his or her responsibilities without becoming overly complicated. The authority to enter defaults which is referred to in the federal regulations is omitted, the committee feeling that the subject matter is fully and adequately covered by rule 1.500.

The authority to accept voluntary acknowledgments of paternity is included at the request of the Department of Health and Rehabilitative Services. Findings of fact are included in the recommended order to provide the judge to whom the order is referred basic information relating to the subject matter.

Subdivision (f): Expedited process is intended to eliminate or minimize delays which are perceived to exist in the normal processing of cases. This paragraph is intended to require the prompt entry of an order and to guarantee due process to the obligee.

General Note: This proposed rule, in substantially the same form, was circulated to each of the chief judges for comment. Five responses were received. Two responding endorsed the procedure, and 3 responding felt that any rule of this kind would be inappropriate. The committee did not address the question of funding, which included not only salaries of hearing officers and support personnel, but also capital outlay for furniture, fixtures, equipment and space, and normal operating costs. The committee recognizes that the operational costs of such programs may be substantial and recommends that this matter be addressed by an appropriate body.

Committee Note

1998 Amendment. This rule shall not apply to proceedings to establish or modify alimony.

RULE 12.610. INJUNCTIONS FOR DOMESTIC, AND REPEAT, AND DATING VIOLENCE

(a) Application. This rule shall apply only to temporary and permanent injunctions for protection against domestic violence and temporary and permanent injunct