ROSEMITA JEAN

v.

JOSUE JEAN

SMITH, Judge. Rosemita Jean (Former Wife) appeals the trial court's order adopting the recommendations of the general magistrate as to Josue Jean's (Former Husband) second motion for contempt or enforcement of the parties' final judgment of dissolution and summarily denying her exceptions to the same. Because the trial court erroneously denied the Former Wife her right to a hearing on her timely exceptions to the

- 2 - magistrate's report, we reverse and remand for the trial court to hold a hearing on the Former Wife's exceptions.1

I. Our review begins with the parties' final judgment of dissolution of marriage rendered on March 13, 2007. The portion of the final judgment that concerns us deals with the equitable distribution of the marital home and provides that the Former Wife shall have exclusive possession of the marital home until the parties' last child is emancipated. Pursuant to the final judgment, while the Former Wife retains possession of the home, she is responsible for the mortgage, taxes, and insurance; she is also required to maintain the house. The final judgment sets forth that upon emancipation of the youngest child, the house is to be sold and the Former Wife is to be given credit for half of the mortgage payments, taxes, and insurance that she paid on the house while living in it. Finally, the final judgment includes a paragraph stating that the court "retains jurisdiction of the parties and subject matter of this cause to enter such other and further orders as may become necessary and appropriate."

The parties' youngest child turned eighteen on April 21, 2014. On December 16, 2014, the Former Husband filed his first motion for contempt and enforcement and/or motion for the forced sale of the marital property pursuant to the

1Because we remand for the trial court to hold a hearing on the Former Wife's exceptions, we do not address the Former Wife's substantive challenges to the magistrate's report and recommendation. See Weinhold v. Kabe Planungsgesellschaft Fur Schlusselfertiges Bauen MBH, 50 So. 3d 718, 721 (Fla. 2d DCA 2010); see also Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147, 148 (Fla. 4th DCA 1992) (reversing order granting final summary judgment where trial court failed to conduct a hearing and expressing no opinion on the merits of the motion for summary judgment because "[a]ppellate review of the merits would be premature given the trial court's failure to provide appellant an opportunity to be heard").

- 3 - final judgment. On January 9, 2016, the trial court entered an order granting the Former Husband's motion and ordering the parties to obtain an appraisal on the house.² The parties both testified as to the

2The reason for the delayed ruling on the Former Husband's first motion for contempt or enforcement is unknown.

- 4 - amounts they had paid toward the mortgage, insurance, and taxes. And while not pleaded in his third motion for contempt or enforcement, during the hearing it became clear that the Former Husband was seeking an award of one-half the fair rental value of the house for the period of time the Former Wife had been in possession of the house after the youngest child had been emancipated. The Former Husband testified that the fair rental value of the house was $1,300 per month. At the conclusion of the hearing, the magistrate found, among other things, that the Former Husband was entitled to one-half of the fair rental value of the house from May 1, 2014, until the sale of the house. The magistrate determined that the fair rental value was $1,300 per month based on the Former Husband's unrebutted testimony. The Former Wife timely filed, on July 25, 2019, exceptions to the magistrate's report and recommendations. Thereafter, the trial court entered its Procedural Order on Exceptions/Motion to Vacate Proceedings on August², 2019, which required the Former Wife, as the party who filed the exceptions, to file a transcript of the hearing before the magistrate within forty-five days of the order, failing which the exceptions would be summarily disposed of without further notice. No transcript was filed by the Former Wife within the forty-five days, and on October 23, 2019, the trial court rendered three orders. In the first order, because the trial court's review of the court file revealed that neither party filed a transcript and neither party set the matter for hearing, the trial court summarily denied the Former Wife's exceptions.³ The third order was a

3While the order summarily denying the Former Wife's exceptions states that neither party set the motion for hearing, there appears to have been a hearing set for October 29, 2019, which the trial court canceled in the third order rendered on October 23, 2019.

- 5 - notice of cancelation of hearing, which canceled the scheduled October 29, 2019, hearing on the Former Wife's exceptions and stated that the parties failed to abide by the August², 2019, order requiring the parties to file a copy of the transcript from the magistrate's hearing within forty-five days.

II. Pursuant to Florida Family Law Rules of Procedure, if exceptions to the magistrate's report are timely filed, "they must be heard on reasonable notice by either party or the court." Fla. Fam. L. R. P. 12.490(f) (emphasis added). And "[f]or the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, must be provided to the court by the party seeking review if necessary for the court's review." Fla. Fam. L. R. P. 12.490(g) (emphasis added). If a record is necessary for the court's review of the exceptions, rule 12.490(g) provides that the record must include "the court file, including the transcript of the relevant proceedings before the general magistrate and all depositions and evidence presented to the general magistrate" and that the transcripts "must be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions." Fla. Fam. L. R. P. 12.490(g)(1), (2).

First, we note that well-settled law in Florida requires a hearing to be held on timely filed exceptions to a magistrate's report. Yoxsimer v. Yoxsimer, 918 So. 2d 997, 998-99 (Fla. 2d DCA 2006) (holding that rule 12.490(f) requires a mandatory hearing on timely filed exceptions to a magistrate's report and explaining that the rule derives from Florida Rule of Civil Procedure 1.490, which also requires a mandatory hearing on timely filed exceptions to a magistrate's report); Betz v. Betz, 790 So. 2d 1128, 1130 (Fla. 2d DCA 2001) ("The trial court was obliged to hear the [h]usband's

- 6 - objections to the report and recommendation before issuing the final judgment."); Cazi v. Prophete, 130 So. 3d 723, 723 (Fla. 3d DCA 2014) ("[T]he trial court abused its discretion by adopting and ratifying the general magistrate's report and recommendations without conducting a hearing on the exceptions."); Gutierrez v. Gutierrez, 48 So. 3d 118, 119 (Fla. 5th DCA 2010) ("It is reversible error for a trial court to fail to conduct a hearing on timely filed exceptions.").4

The Fourth District has explicitly addressed the issue before us—whether a trial court can deny exceptions to a magistrate's report without a hearing on the grounds that the party seeking review of the magistrate's report failed to file a copy of the transcript as ordered. See Langsetmo v. Metza, 306 So. 3d 112, 114 (Fla. 4th DCA 2020); Murison v. Coral Park Prop., Inc., 64 So. 3d 1288, 1290 (Fla. 4th DCA 2011). And twice the Fourth District has held that the trial court is required to hold a hearing on timely filed exceptions and is precluded from simply denying those exceptions without a hearing because of a party's failure to provide a transcript in advance of their statutory requirement to do so. See Langsetmo, 306 So. 3d at 115; Murison, 64 So. 3d at 1289-90. We agree with our sister court and hold that the trial court here abused its discretion in denying the Former Wife's exceptions—and her right to a hearing—because she failed to file the transcript of the hearing before the magistrate within the forty-five days allotted and ordered by the court, where, statutorily, she may not have been required to file the transcript at all.

4We recognize that this case law developed at a time when rule 12 expressly relied on Florida's Rules of Civil Procedure in a way that is no longer required following amendments to rule 12 in 2017. See In re Amendments to Fla. Fam. L. R. of P., 214 So. 3d 400 (Fla. 2017). Nevertheless, the language of rule 12.490 expressly requires that a mandatory hearing occur in family law proceedings in the manner outlined by this body of cases irrespective of any additional discussion of rule 1.490.

- 7 - This brings us to our second point: rule 12.490(g) only requires the party seeking review of the magistrate's report and recommendations to file a record, including any transcripts, "if necessary for the court's review." (Emphasis added.) Where the exceptions raise pure issues of law, such as whether a magistrate's report and recommendations improperly modified the parties' property rights as previously determined by a final judgment of dissolution, a transcript would not be necessary. See Rittman v. Allstate Ins. Co., 727 So. 2d 391, 394 (Fla. 1st DCA 1999) (explaining that a transcript may not be necessary when reviewing pure issues of law).

III. Because the trial court erred in summarily denying the Former Wife's exceptions to the magistrate's report and recommendations based upon a failure to file the transcript, we reverse the order approving and adopting the magistrate's report and recommendations and the order summarily denying the Former Wife's exceptions to the magistrate's report and recommendations, and we remand for the trial court to hold a hearing and consider the exceptions on the merits.

Reversed and remanded.

VILLANTI and SLEET, JJ., Concur.