JOSE A. CALDERON, II, APPELLANT,
v.
CATHERINE ANN CALDERON, APPELLEE
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Jose Calderon appeals the trial court's dismissal of his exceptions to a general magistrate's report in a dissolution of marriage case. The appellate court reversed, holding that Calderon's exceptions were timely filed when the applicable mail service rules and computation of time under Florida Rules of Civil Procedure were properly applied.
Calderon's exceptions were timely filed. Under Rule 12.490(f), exceptions must be served within ten days after service of the report, and Rule 1.090(e) adds five additional days for service by mail. Because the magistrate's report was served on October 2, 2008, and Calderon mailed his exceptions on October 16, 2008, his exceptions were timely under proper computation of these time periods.
[1] Exceptions to a general magistrate's report must be served within ten days after service of the report.
[2] When service of a magistrate's report is made by mail, an additional five days are added to the prescribed period for serving exceptions.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under rule 12.490(f), exceptions to a general magistrate's report must be served within ten days after service of the report. This Court has held that service by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service.”
Establishes the applicable rule for timing of exceptions and proof of service by mail
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Join FLexlaw to unlock all legal intelligenceCalderon and his wife separated in 2000 and had three minor children. Calderon filed for divorce on June 29, 2007, before leaving Florida, and provide…
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Appellant, Jose Calderon, II [“Husband”], appeals the final judgment of dissolution of marriage and an order denying exceptions to report and recommendation of general magistrate. Husband contends that the lower court erred when it determined that his exceptions to the report and recommendations of the general magistrate were untimely.1 Because Husband’s exceptions were timely, we reverse.
*689Husband and Appellee, Catherine Calderon [“Wife”],2 were married in 1994, and separated sometime in 2000. They had three minor children at the time of the divorce. Husband filed for divorce on June 29, 2007, the day before he left the State of Florida. He provided the lower court with his parents’ Florida address where he continued to receive mail. Wife filed her answer to his petition and a counter-petition for dissolution. Husband answered the counter-petition.
Sometime after Husband failed to appear for a court-ordered mediation, Wife filed a notice for non-jury trial of all issues concerning the dissolution of the parties’ marriage. The matter was set for hearing before a general magistrate. At the conclusion of the hearing, the general magistrate made his report and recommendations. The report of the general magistrate is dated October 2, 2008. Husband mailed his exceptions to the report, by certified mail, on October 16, 2008. The clerk’s stamp on the front of Husband’s exceptions shows that it was received in the clerk’s office on October 20, 2008.
Without addressing Husband’s exceptions, on October 21, 2008, the trial court entered a final judgment of dissolution of marriage, adopting the recommendations of the general magistrate. By separate order, the trial court struck Husband’s exceptions as untimely filed.
Florida Family Law Rule of Procedure 12.090 provides that time is computed pursuant to Florida Rule of Civil Procedure 1.090. Rule 1.090 provides that the day of the act from which the time begins to run shall not be included in computing any period of time prescribed, and five days are added to the prescribed period for service by mail. See Fla. R. Civ. P. 1.090(a)(e). Under rule 12.490(f), exceptions to a general magistrate’s report must be served within ten days after service of the report. This Court has held that service by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service. See Williams v. Express Leasing, Inc., 575 So.2d 768, 769 (Fla. 5th DCA 1991); see also Fla. R. Civ. P. 1.080(f). Recently, addressing the same issue, the Second District, in Riley v. Riley, 14 So.3d 1284 (Fla. 2d DCA 2009) determined objections were timely filed when mailing days were taken into account:
A trial court must hear timely filed exceptions to a magistrate’s report. See Fla. Fam. L.R.P. 12.490(f); Betz v. Betz, 790 So.2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, “The parties may serve exceptions to the report within 10 days from the time it is served on them.” Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate’s report was served on him by mail. See Werntz v. Floyd, 814 So.2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So.2d 639, 640 n. 1 (Fla. 3d DCA 1991).
Id. at 1289.
Because the general magistrate entered and served his report on Thursday, October 2, 2008, and Husband mailed (served) his exceptions via express mail to the clerk of the court on October 16, 2008, his exceptions were not untimely.3 Reversal is re*690quired so that the lower court can consider the merits of Husband’s exceptions.
REVERSED and REMANDED.
PALMER and JACOBUS, JJ., concur.
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Nivia Lascaibar v. Lascaibar, 156 So. 3d 547 (Fla. 3d DCA 2015)…istrate’s recommendation by filing an exception to the recommendation within ten (10) days from the date the recommendation is served. Fla. Fam. L. R. P. 12.490(f); Glaister v. Glaister, 137 So. 3d 513, 517 (Fla. 4th DCA 2014); Calderon v. Calderon, 26 So. 3d 688, 689 (Fla. 5th DCA 2010). Because the Mother did not file an exception to the general magistrate’s 2010 recommendation, the Mother can no longer claim entitlement to the interest accrued prior to 2010. However, the Mother’s entitlement to interest…
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Murison v. Coral Park Props., Inc., 64 So. 3d 1288 (Fla. 4th DCA 2011)…009, the last day for the Murisons to serve exceptions under Florida Rule of Civil Procedure 1.490(h). “[Sjervice by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service.” Calderon v. Calderon, 26 So. 3d 688, 689 (Fla. 5th DCA 2010). Second, the trial court erred when it denied the exceptions without a hearing, because the Murisons had not yet provided the trial court with transcripts from the magistrate’s hearing. “Appellate courts throughout this st…
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Teague v. Girtman, 67 So. 3d 284 (Fla. 5th DCA 2011)…Procedure 12.490(b). This conclusion was erroneous because the referral order was served on the father by mail. Consequently, five days should have been added to the ten-day time limit to respond. See Fla. R. Civ. P. 1.090(e); Calderon v. Calderon, 26 So. 3d 688 (Fla. 5th DCA 2010) (reversing final dissolution judgment because husband’s objections to magistrate’s report were timely under mailbox rule); Christ v. Christ, 939 So. 2d 256 (Fla. 1st DCA 2006) (reversing order denying modification of visitation b…
Authorities Cited
- Riley v. Riley, 14 So. 3d 1284 (Fla. 2d DCA 2009)
- Josephina Gonzales Palmer v. Palmer, 582 So. 2d 639 (Fla. 3d DCA 1991)
- Williams v. Express Leasing, Inc., 575 So. 2d 768 (Fla. 5th DCA 1991)
- Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th DCA 2002)
- Winchester v. State, 790 So. 2d 1128 (Fla. 2d DCA 2001)
- Betz v. Betz, 790 So. 2d 1128 (Fla. 2d DCA 2001)