LEWIS V. SWEZY, PETITIONER,
v.
BEVERLY BART-SWEZY, RESPONDENT

Fla. 4th DCA | 2004-02-11
No. 4D03-3715
POLEN and HAZOURI, JJ., concur., FARMER, C. J., concurs specially with opinion.
866 So. 2d 1248 Florida District Court of Appeal, Fourth District (2004) Positive Treatment
Cited by 3 cases

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Synopsis

A Florida appellate court granted a writ of prohibition to reverse a trial court's referral of child support and custody matters to a general master where the husband timely objected to the referral, which violated the requirement that all parties consent to such referrals under Florida Family Law Rule of Procedure 12.490.


Holding

A general master referral requires the consent of all parties, and a timely written objection to the referral bars the trial court from making such a referral. Accordingly, the trial court's order referring the matters to a general master was reversed.


Headnotes

[1] A referral of a matter to a general master requires the consent of all parties.

[2] A written objection to a referral to a general master, filed within 10 days of service of the order of referral, negates the requirement of party consent.

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Key Quotes

“No matter shall be heard by a general master without an appropriate order of reference and the consent to the referral of all parties.”

Establishes the fundamental requirement that consent of all parties is mandatory before any matter may be referred to a general master under Rule 12.490(b)(1).

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Facts & Procedural History

Lewis and Beverly Swezy married on August 5, 2001, and Beverly gave birth to a son two days later. Beverly had been artificially inseminated before th…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Lewis Swezy filed a petition for writ of prohibition requesting this court reverse the trial court’s order of referral to a general master. We grant his request.

Lewis Swezy (Husband) and Beverly Bart^Swezy (Wife) were married on August 5, 2001. Wife gave birth to a son two days later. Before they were married, Wife was artificially inseminated. Husband denies that he consented to the artificial insemination and further denies paternity.

Wife filed for dissolution of marriage. In the petition she sought temporary and permanent child support, alleging the child was born “as issue of the marriage.” She then moved for temporary custody and temporary child support. The trial court referred the motions to a general master for a hearing pursuant to Florida Family Law Rule of Procedure 12.490. Husband denied paternity and objected to referring the matter to a general master. The motion for temporary support was set for hearing before a general master. Husband moved to strike the notice of hearing, objecting that paternity has not been established. The trial court denied Husband’s motion and as of yet the trial court has not determined paternity.

Husband argues that a general master has no authority to determine matters objected to by him, and in particular, no authority to determine temporary child support since the trial court has not determined paternity.

A referral to the general master requires the consent of all parties. Rule 12.490(b) provides in part:

(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.

Prohibition is the proper remedy when the trial court refers a matter to a general master without both parties’ consent. See Taylor v. Taylor, 569 So. 2d 1389 (Fla. 4th DCA 1990). In Taylor, the trial court overruled a timely objection to an order referring a motion to compel to a general master. This court treated the appeal as a petition for writ of prohibition and mandamus. This court noted that a party’s consent is required before a hearing can be referred to a general master, granted the petition, and reversed the order of referral. See also Lunger v. Hinck- ley, 572 So. 2d 1042 (Fla. 4th DCA 1991) (following Taylor); Novartis Pharm. Corp. v. Carnoto, 798 So. 2d 22 (Fla. 4th DCA 2001) (citing Taylor and observing, “[mjandamus lies to compel a trial court to resolve issues without a special master when the trial court has referred such issues to resolution by special master without the consent of both sides to a dispute”).

In the instant case, Husband filed a timely objection to the referral order and as a result, the trial court could not refer this issue to a general master. Husband’s petition for a writ of prohibition is granted.

POLEN and HAZOURI, JJ., concur. FARMER, C. J., concurs specially with opinion.

Concurrence
FARMER, C.J.,

FARMER, C.J.,

concurring.

Although I agree with the outcome, I write to emphasize that the title of the official to whom the case is referred is not dispositive as to whether an assignment can be made at all over the objection of a party. It hardly matters whether that official is called “General Master,” “Support Enforcement Officer,” “Über Richter” or any other title the inventive minds of lawyers, Judges or court administrators may divine. The rule is that no assignment of the judicial function can be made without the consent of all parties. On this basis I join in granting the writ.


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Citator

Cited By

  • Garcia v. Garcia, 958 So. 2d 947 (Fla. 3d DCA 2007)
    …t aside” the objection and ordered the general magistrate to retain jurisdiction. Because the former wife properly objected, she was entitled to have the matter heard before a circuit court judge.1 See Christ, 939 So. 2d at 256; Swezy v. Bart-Swezy, 866 So. 2d 1248, 1249 (Fla. 4th DCA 2004). Although the general magistrate correctly returned the matter to the trial court after the former wife filed a timely objection to the referral order, the final act of the trial court was to “set aside” the former wife’s…
  • Christ v. Christ, 939 So. 2d 256 (Fla. 1st DCA 2006)
    …objection to the order of referral to the general master. A referral to the general master requires the consent of all parties; and without this consent, the trial court lacks discretion to refer the matter to a general master. Swezy v. Bart-Swezy, 866 So. 2d 1248 (Fla. 4th DCA 2004). Florida Family Law Rule 12.490(b) provides in part: (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, t…
  • Wash. Park Props., LLC v. Estrada, 996 So. 2d 892 (Fla. 4th DCA 2008)
    …led at the time the order was entered. The answer is no. This court has found both prohibition and mandamus are available remedies when the trial court refers a matter to a general master without the consent of all the parties. Swezy v. Bart-Swezy, 866 So. 2d 1248 (Fla. 4th DCA 2004). Florida Rule of Civil Procedures 1.490(c) provides that “[n]o reference shall be to a magistrate, either general or special, without the consent of the parties.” Here, the new defendants were neither parties to the case when th…

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