AUDREY T. CLARK, PETITIONER,
v.
JAMES T. CLARK, RESPONDENT
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Audrey Clark challenges a trial court order requiring her to submit to vocational testing by her ex-husband's expert without the ability to record, report, or have others present. The court grants certiorari, finding the order departs from the essential requirements of law, and holds that the petitioner has the right to have the testing recorded and to have third parties present.
The petitioner has the right to have vocational testing recorded and to have third parties present during the evaluation. A trial court order prohibiting such recording and third-party presence departs from the essential requirements of law and causes material, irreparable harm.
[1] A party is entitled to the presence of a court reporter or other objective means of recording during a court-ordered vocational evaluation.
[2] The right to preserve precise communications during a court-ordered examination outweighs concerns about rapport and candor.
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“the petitioner should have the right, where the means are available as they are here, to preserve by objective means the precise communications' that occur during the course of the examination. Any concerns about rapport and candor should give way to this right since otherwise the petitioner will be compelled to challenge the credibility of the examiner should a dispute later arise as to what took place.”
Establishes the fundamental principle that a party has the right to record court-ordered examinations to preserve objective evidence of what transpired.
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Join FLexlaw to unlock all legal intelligenceIn a family law dissolution proceeding, the trial court ordered Audrey Clark to undergo vocational testing by an expert retained by her former husband…
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Petitioner Audrey Clark seeks certiorari review of a trial court order requiring her to submit to vocational testing by her former husband’s expert, who may exclude recording, court reporting or other people from being present during that testing. We find that the trial court departed from the essential requirements of law, resulting in material harm of an irreparable nature, in allowing the expert to exclude recording, reporting or other people from being present.
This case is controlled by Gibson v. Gibson, 456 So.2d 1320 (Fla. 4th DCA 1984), in which the majority held that a wife was entitled to the presence of a court reporter at her psychiatric examination ordered by the trial court in a dissolution proceeding. It reasoned:
[T]he petitioner should have the right, where the means are available as they are here, to preserve by objective means the precise communications' that occur during the course of the examination. Any concerns about rapport and candor should give way to this right since otherwise the petitioner will be compelled to challenge the credibility of the examiner should a dispute later arise as to what took place. Such a dispute would be obviated by the presence of a means of recording the interview. Both the examiner and patient should benefit by the objective recording of the proceedings, and the integrity and value of the examination as evidence in the judicial proceedings should be enhanced.
A vocational evaluation pursuant to Florida Family Law Rule of Procedure 12.360 is comparable to an independent medical evaluation under Florida Rule of Civil Procedure 1.360, and the case law governing the right to recording and third-party presence at such examinations supports petitioner’s claims here as well. See Bacallao v. Dauphin, 963 So.2d 962 (Fla. 3d DCA 2007); Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455 (Fla. 1st DCA 2006); Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4th DCA 1998); Bartell v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986).
We agree with petitioner in this case that she should not be required to be *193evaluated by respondent’s expert without having the testing recorded. We further note that petitioner has not objected to a properly crafted order of confidentiality to alleviate the concerns of the former husband’s vocational expert.
Petition granted, order quashed and cause remanded for further proceedings consistent with this opinion.
GROSS, C.J., MAY and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bartell v. McCARRICK, 498 So. 2d 1378 (Fla. 4th DCA 1986)
- Gibson v. Gibson, 456 So. 2d 1320 (Fla. 4th DCA 1984)
- Byrd v. S. Prestressed Concrete, Inc., 928 So. 2d 455 (Fla. 1st DCA 2006)
- Brompton v. Celina Poy-Wing, M.D., 704 So. 2d 1127 (Fla. 4th DCA 1998)
- White v. State, 963 So. 2d 962 (Fla. 5th DCA 2007)
- Grisell Bacallao v. Jean Raymond Dauphin, D.O., 963 So. 2d 962 (Fla. 3d DCA 2007)