DONNA HAND, APPELLANT,
v.
JOHN KUSHMER, APPELLEE
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Donna Hand appealed the trial court's denial of her exceptions to a general master's report in a post-dissolution matter. The appeals court reversed because the trial court failed to issue a formal order of referral as required by Florida Family Law Rules of Procedure 12.490, which prevented Hand from receiving proper notice of her right to object to the general master's jurisdiction.
A trial court cannot hear a matter through a general master without an appropriate written order of referral. Without such an order, parties do not receive the required notice of their right to object to the referral, and therefore cannot be deemed to have waived their objections by failing to timely object.
[1] A general master cannot hear a matter without an appropriate order of reference and the consent of all parties.
[2] A party does not waive the right to object to a referral to a general master when no order of referral is entered.
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Join FLexlaw to unlock all legal intelligence“No matter shall be heard by a general master without an appropriate order of reference and the consent to the referral of all parties.”
This establishes the mandatory requirement under Florida Family Law Rule of Procedure 12.490 for a formal referral order before any matter may be heard by a general master.
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Join FLexlaw to unlock all legal intelligenceHand filed four post-dissolution motions against John Kushmer that were heard by a general master without a formal written order of referral. Hand did…
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PARKER, Judge.
Donna Hand (the wife) appeals the trial court’s nonfinal order denying her exceptions to the report and recommendations of the general master. We reverse because the trial court failed to enter a proper order of referral. Because of this reversal, the wife’s second issue is moot.
The wife argues, and John Kushmer (the husband) agrees, that the trial court did not refer this matter to the general master pursuant to Florida Family Law Rules of Procedure 12.490. The record does not contain a referral order. The wife filed four postdisso-lution motions asking the court for relief. These matters were set for hearing before a general master. The wife did not file an objection to the motions being heard by a general master. After the hearing, the wife filed an objection to the hearing, along with her exceptions to the general master’s report and recommendations. After the hearing regarding the exceptions, the trial court affirmed the general master’s report and recommendations.
Because the wife’s motions pertained to issues other than child support enforcement, Family Law Rule of Procedure 12.490 is applicable. This rule provides that:
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 may be express or may be implied in accordance with the requirements of this rule.
Fla. Fam. L.R.P. 12.490(b)(1). This rule also provides that the parties can object to referral within ten days of the service of the order of referral. If the parties fail to object and they participate in the proceedings, they waive their right to object to the order of referral. See Cox v. Cox, 490 So. 2d 1051 (Fla. 4th DCA 1986) (failure to timely object waives complaint of orders of referral as to matters already completed).
In this case, there is no order of referral; therefore, the wife did not have the notice language that a proper referral order would contain advising her of the right to object to the referral order. Accordingly, it cannot be said that she waived her right to be heard by the court.
The order denying the wife’s exceptions is reversed and remanded for proceedings consistent with this opinion.
CAMPBELL, A.C.J., and NORTHCUTT, J., concur.
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Citator
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Humphrey v. Humphrey, 296 So. 3d 536 (Fla. 1st DCA 2020)…These facts demonstrate consent to the jurisdiction that the magistrate exercised. The majority errs in purporting to hold that an objection to a magistrate referral cannot subsequently be waived. The law is to the contrary. See Hand v. Kushmer, 695 So. 2d 858, 859 (Fla. 2d DCA 1997) (explaining failure to timely object to magistrate’s appointment constituted waiver); Goldfarb v. Agran, 546 So. 2d 24, 25 n.1 (Fla. 3d DCA 1989) (recognizing a litigant can waive objection by “voluntarily participating in th…
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Cuartas v. Norevely Cuartas, 951 So. 2d 980 (Fla. 3d DCA 2007)…ot seek to raise or include the procedural deficiency in the referral. See Florida Family Law Rule of Procedure 12.490(b)(3)(requiring the order of referral to “state with specificity the matter or matters being referred”). See also Hand v. Kushmer, 695 So. 2d 858 (Fla. 2d DCA 1997)(reiterating Florida Family Law Rule of Procedure 12.490(l)(b) that general master shall not hear any matter without an appropriate order of reference). Second, it is well settled in this District that upon the issuance of a recom…
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Champion v. Champion, 98 So. 3d 1289 (Fla. 1st DCA 2012)…t to the referral of all parties.” Having ascertained that no such order of reference exists of record in this case, we are compelled to reverse the order on appeal and remand for further proceedings consistent with rule 12.490. See Hand v. Kushmer, 695 So. 2d 858 (Fla. 2d DCA 1997). REVERSED and REMANDED. ROBERTS, WETHERELL, and SWANSON, JJ., concur.…
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- Hans v. State, 490 So. 2d 1051 (Fla. 4th DCA 1986)