DIANE EDWARDS, PETITIONER,
v.
BRIAN EDWARDS, RESPONDENT

Fla. 4th DCA | 1994-03-30
No. 94-0366
GUNTHER, KLEIN and STEVENSON, JJ., concur.
634 So. 2d 284 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 4 cases

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Synopsis

The wife sought certiorari review of a trial court order requiring her and the minor child to undergo additional HLA blood testing and reducing her temporary child support as a sanction for failing to comply with the discovery order. The appellate court held that while the original HLA testing order was not timely reviewable, the reduction of child support as a sanction was an abuse of discretion and was reversed.


Holding

The court lacked jurisdiction to review the original November 5, 1993 HLA testing order because the petition was untimely filed three months after rendition. However, the trial court abused its discretion by reducing child support as a sanction for the discovery violation, as this sanction was not authorized under Florida Rules of Civil Procedure rule 1.380(b) and improperly punished the minor child who bore no responsibility for the violation.


Headnotes

[1] A party seeking certiorari review of an order must file the petition within the prescribed time limits; failure to do so deprives the appellate court of jurisdiction to r…

[2] A trial court abuses its discretion when it imposes a sanction not authorized by the rules of civil procedure for a discovery violation.

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Key Quotes

“The trial court has discretion to sanction a party who refuses to comply with a discovery order, but that discretion is limited by the provisions of rule 1.380(b), Florida Rules of Civil Procedure. Reduction of child support is not one of the authorized sanctions enumerated under rule 1.380(b).”

Establishes that while courts have discretion to impose discovery sanctions, the reduction of child support is not an authorized sanction under the rules.

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Facts & Procedural History

In a dissolution action, the husband moved for HLA testing of the wife and minor child. The trial court granted this motion on November 5, 1993. On Ja…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The petitioner (wife in the dissolution action below) seeks certiorari review of a January 31,1994 order of the trial court requiring the petitioner to produce herself and the couple’s minor child for a second blood draw in order to complete human leukocyte antigen (HLA) tests that had been previously ordered by the court. The petitioner also seeks review of that portion of the order reducing temporary child support as a sanction for her failure to comply with the discovery order requiring the second blood test.

We deny certiorari review of the January 31st order requiring additional HLA testing. The petition is not timely filed because petitioner in actuality, seeks to challenge, three months after rendition, the November 5, 1993 order which originally granted the husband’s motion for HLA testing. Therefore, this court lacks jurisdiction to review the trial court’s decision to order HLA testing in the first instance. Fla.App.P. 9.100(c)(1) (1993). In short, the HLA tests were ordered on November 5, 1993; the January 31st order merely rescheduled testing which was inconclusive.

Nevertheless, we find that the trial court abused its discretion in reducing the father’s child support obligations as a sanction for the mother’s discovery violation and reverse that portion of the order.1

The trial court has discretion to sanction a party who refuses to comply with a discovery order, but that discretion is limited by the provisions of rule 1.380(b), Florida Rules of Civil Procedure. Reduction of child support is not one of the authorized sanctions enumerated under rule 1.380(b). Further, it is reversible error to impose a sanction which punishes an individual or party who bears no responsibility for a discovery violation committed by another. See Mitchem v. Grubbs, 485 So. 2d 891 (Fla. 1st DCA 1986). That is especially true where the individual most injured by the sanction is a minor child whose rights and interests are the subject matter of the proceedings. Stoner v. Verkaden, 493 So. 2d 1126 (Fla. 4th DCA 1986).

Reversed in part and remanded.

GUNTHER, KLEIN and STEVENSON, JJ., concur. . We note that a challenge to the modification of a child support award should ordinarily be appealed pursuant to Rule 9.130 (a) (3) (C)(iii), Florida Rules of Appellate Procedure, as a non-final order determining monetary relief in a dissolution action. This court will treat the petition for writ of certiorari as a non-final appeal. Skinner v. Skinner, 561 So. 2d 260, 262 (Fla.1990); Fla.App.P. 9.040(a) (where a party seeks an improper remedy, the cause should be treated as if the proper remedy had been sought).


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Citator

Cited By

  • Ophelia Brown v. McKINNON, 964 So. 2d 173 (Fla. 3d DCA 2007)
    …elief. Fla. R.App. P. 9.040(c)(“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy, had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”); Edwards v. Edwards, 634 So. 2d 284, 285 n. 1 (Fla. 4th DCA 1994)(treating a petition of certiorari as an appeal from a non-final order); Harris v. Lewis State Bank, 482 So. 2d 1378, 1380-81 [*174] (Fla. 1st DCA 1986)(treating an appeal from a non-final order dismissing an action with…
  • Najeeb Khan v. Dep't OF Revenue, 901 So. 2d 992 (Fla. 4th DCA 2005)
    …onformity with Florida Family Law Rules of Procedure Form 12.902(e). This requirement cannot be waived by the parties.” [e.s.]). Nor could the trial court properly award child support as a sanction for a discovery violation. See Edwards v. Edwards, 634 So. 2d 284 (Fla. 4th DCA 1994) (“The trial court has discretion to sanction a party who refuses to comply with a discovery order, but that discretion is limited -by the provisions of rule 1.380(b), Florida Rules of Civil Procedure. Reduction of child support i…

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