ELIZABETH F. YOXSIMER, APPELLANT,
v.
ROGER L. YOXSIMER, APPELLEE
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The Wife appeals a trial court order denying her exceptions to a general magistrate's recommendation that she return to Florida with the couple's children, without conducting a hearing as required by rule. The court granted the petition for writ of certiorari, holding that the trial court violated due process by failing to hold a mandatory hearing on the exceptions.
A trial court must conduct a hearing on exceptions to a general magistrate's report when a hearing is requested by a party. The trial court erred by denying the Wife's exceptions without conducting the mandatory hearing.
[1] A trial court must conduct a hearing on exceptions filed to a general magistrate's recommendation when a party requests one.
[2] Denying a party's exceptions to a magistrate's order without a hearing constitutes a departure from the essential requirements of law and deprives the party of due proces…
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Join FLexlaw to unlock all legal intelligence“if exceptions are filed to a general magistrate's report, they "shall be heard on reasonable notice by either party or the court."”
Establishes the mandatory requirement that exceptions to a magistrate's report must be heard with reasonable notice, a requirement that applies to both party requests and court discretion.
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Join FLexlaw to unlock all legal intelligenceDuring a dissolution proceeding, the Husband filed a motion to compel the Wife and children to return to Florida from California, alleging the Wife ha…
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ALTENBERND, Judge.
Elizabeth F. Yoxsimer (the Wife) appeals a nonfinal order from the trial court that denied her exceptions to a general magistrate’s recommendation without first conducting a hearing. The appellee (the Husband) concedes error. We treat the appeal as a petition for writ of certiorari and grant the petition.1
During the pendency of a dissolution proceeding, the Husband filed a motion to compel the Wife and children to return to Florida. At the time, the Wife and children were living in California. Allegedly, the Wife had fled with the children after the Husband continued to violate a no-contact order. The magistrate issued a recommendation that the Wife return to Florida with the couple’s children on a permanent basis to foster visitation and reunification between the children and the Husband. The Wife filed exceptions to the magistrate’s order and requested a hearing. Without conducting a hearing, the trial court denied the Wife’s exceptions and ordered the Wife to return to Florida with the children.
The trial court erred when it denied the Wife’s exceptions to the magistrate’s order without first conducting a hearing. Florida Family Law Rule of Procedure 12.490(f)2 provides that if exceptions are filed to a general magistrate’s report, they “shall be heard on reasonable notice by either party or the court.” This rule derives from Florida Rule of Civil Procedure 1.490(h), which also requires that exceptions be heard with reasonable notice.
“Appellate courts throughout this state have uniformly interpreted rule 1.490(h) to require a mandatory hearing before the trial court on the parties’ exceptions if one is requested.” Ellett v. Ellett, 546 So. 2d 1108, 1109 (Fla. 2d DCA 1989). Because the Wife requested a hearing on the exceptions but was not provided one, the trial court deprived her of due process and departed from the essential requirements of law. See Knorr v. Knorr, 751 So. 2d 64 (Fla. 2d DCA 1999) (holding the trial court departed from essential requirements of law by failing to conduct a hearing on the husband’s exceptions to the special master’s report).
Petition for writ of certiorari granted.
CASANUEVA and VILLANTI, JJ., Concur. . This court issued an order asking the parties to address the jurisdictional basis for the appeal. Neither party addressed this issue. Although this case was filed as an appeal of a nonfmal order, we are not inclined to believe this appeal falls within Florida Rule of Appellate Procedure 9.130. Thus, we treat this appeal as a petition for writ of certiorari.
. Florida Family Law Rule of Procedure 12.492(g) contains the same language regarding exceptions to reports filed by a special magistrate. It is noteworthy that chapter 2004-11, Laws of Florida, changed all references to "general master” and “special master” in these two rules to "general magistrate” and “special magistrate.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Collado v. Pavlow, 951 So. 2d 69 (Fla. 5th DCA 2007)…d on reasonable notice by either party. Subsection (h) requires a circuit court to afford a hearing on a party’s timely served exceptions to the report. See Roth v. All-American Inv. Props., 944 So. 2d 1239 (Fla. 2d DCA 2006); Yoxsimer v. Yoxsimer, 918 So. 2d 997 (Fla. 2d DCA 2006) (under Rule 1.490(h), litigant who requests hearing on exceptions but is not afforded one is deprived of due process). The purpose of such a hearing is for the trial court to review the record so as to “ascertain whether the maste…
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Simmons v. Simmons, 16 So. 3d 878 (Fla. 5th DCA 2009)…ate’s report before entering the final judgment. See Fla. Fam. L.R.P. 12.490(f) (providing that if exceptions are filed to a general magistrate’s report, they “shall be heard on reasonable notice by either party or the court”); Yoxsimer v. Yoxsimer, 918 So. 2d 997 (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 this rule derives from Florida Rule of Civil Procedure 1.490(h), which also requires a mandatory hea…
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Burnstine v. Townley, 976 So. 2d 624 (Fla. 5th DCA 2008)…Id. Burnstine requested an evidentiary hearing in conjunction with his filing of exceptions to the general magistrate’s report. Therefore, the trial court erred when it denied his exceptions without first conducting a hearing. Yoxsimer v. Yoxsimer, 918 So. 2d 997, 998 (Fla. 2d DCA 2006). Burnstine contends that the magistrate’s determination of his income was not supported by competent substantial evidence. The general magistrate’s report and recommendation relied on the corporation’s nine-month financial s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knorr v. Knorr, 751 So. 2d 64 (Fla. 2d DCA 1999)
- Ellett v. Ellett, 546 So. 2d 1108 (Fla. 2d DCA 1989)