In re Amendments to Fla. Family Law Rules Procedure, SC16–978

• Decision Date: 16 March 2017
• Docket Number: No. SC16–978,SC16–978
• Citation: 214 So.3d 400 (Mem)
• Parties: IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULES OF PROCEDURE.
• Court: Florida Supreme Court

214 So.3d 400 (Mem)

IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULES OF PROCEDURE.

No. SC16–978

Supreme Court of Florida.

[March 16, 2017]

Judge Laurel Moore Lee, Chair, Family Law Rules Committee, Plant City, Florida; Charles Cole Jeffries, Jr., Past Chair, Family Law Rules Committee, Tampa, Florida; and John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

Sarah E. Kay, Co–Chair, Rules and Forms Committee, Family Law Section of The Florida Bar, Sessums Black Caballero Ficarrotta, Tampa, Florida; C. Debra Welch, Co–Chair, Rules and Forms Committee, Family Law Section of The Florida Bar, The Law Firm of C. Debra Welch PA, West Palm Beach, Florida; Laura Davis Smith, Chair, Family Law Section of The Florida Bar, Greene Smith & Associates, P.A., Coral Gables, Florida; Thomas J. Sasser, Jorge M. Cestero, Peter J. Trombadore, and Trisha P. Armstrong of Sasser, Cestero & Sasser, P.A., West Palm Beach, Florida; and Gregory Firestone, Ph.D., Sarasota, Florida, Responding with Comments

PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure and Florida Family Law Rules of Procedure Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Family Law Rules Committee (Committee) has filed an out-of-cycle report recommending the Court adopt multiple amendments to the Florida Family Law Rules of Procedure to create a stand-alone set of rules to govern family law proceedings. The Committee also proposes amendments to several family law forms and proposes several new family law forms. All of the rule and form amendments were approved by the full Committee and the Board of Governors of The Florida Bar.

The Family Law Rules were first adopted by the Court in 1995. See In re Family Law Rules of Procedure , 663 So.2d 1047 (Fla. 1995). The Committee in that case initially proposed stand-alone rules that incorporated the Florida Rules of Civil Procedure into the Family Law Rules and also included rules unique to family law proceedings. However, at that time, the Board of Governors of The Florida Bar took the position that the Family Law Rules should reference the civil rules where necessary rather than totally incorporate them with significant changes. Id. at 1048. The Court agreed with this position. Although the Court found the Committee's stand-alone approach to the new rules "well intended," it determined that putting the text of the civil rules, with stylistic and substantive changes, into the new rules "would make it difficult for general practitioners to easily discern what differences existed between the civil rules and the family law rules and what changes were in fact substantive and what changes were only stylistic." Id. at 1047. Thus, the Court modified the Committee's proposals "to require that the civil rules apply to family law matters except as set forth in the family law rules." Id. at 1048. The modified rules were adopted by the Court, with some revisions after further comment, and made effective January 1, 1996. See id. at 1049.

At present, the Board of Governors has unanimously voted to approve the proposed amendments in this case, and only three comments were filed in response to the Court's publication of the proposed amendments—only one of which opposes the stand-alone concept. Further, the Committee explains in its report:

Over the years, the whole concept of "family law" has grown from simply being "divorce court" into a now distinct court—one that has to constantly find ways to handle a growing number of issues that arise in twenty-first century families, such as paternity proceedings, disputes over time-sharing and visitation, domestic violence, and enforcement proceedings.

The Commission of Family Courts, created in 1990, has recommended "that the Supreme Court require each judicial circuit to submit to the court for approval a local rule establishing a family division in its circuit or a means to coordinate family law matters that affect one family if the circuit or part of the circuit is of such limited size that it is unable to administratively justify such a division." In r e: Report of the Commission on Family Courts , 588 So.2d 586 (Fla. 1991).

As society went through radical changes, various areas of government developed to assist families, creating an evolution such that the practice of what had simply been "family law," which seemed to fit under the umbrella of the Civil Rules of Procedure, developed into the practice of marital and family law. This practice is now represented in The Florida Bar by its own section and in the Judiciary by each Circuit's Family Law Division.

The Committee also contends that a stand-alone rule set will be helpful and less confusing for pro se litigants in that for most issues they will not have to consult multiple sets of rules for guidance. Given the developments in the practice of marital and family law, the benefit to pro se litigants, and the Board's support for the proposals, we agree that consideration of a stand-alone set of rules for family law cases is warranted.

Prior to submission to the Court, the Committee published its proposals for comment in the August 1, 2015, edition of The Florida Bar News . Comments were received from several attorneys, a general magistrate, and the Family Law Section of The Florida Bar (Section). After consideration of the comments addressing specific rules, the Committee made further revisions to the proposed amendments. The rules that were amended in response to the comments received were then republished in the October 15, 2015, edition of The Florida Bar News . No additional comments were received in response to the second publication of the proposed rule amendments.

After the report was submitted to the Court, the proposals were again published for comment. Comments were received from the Section, Gregory Firestone, Ph.D., and the law firm of Sasser, Cestero & Sasser, P.A. The Committee filed a response to the comments.

Upon consideration of the report, the Committee's proposals, the comments, and the Committee's response thereto, we adopt the proposed rule amendments creating a stand-alone set of Family Law Rules of Procedure, with several modifications. Those modifications, as well as several issues and concerns raised by the comments filed, are discussed below.¹

AMENDMENTS²

First, the proposed amendment to Florida Family Law Rule of Procedure 12.110 (General Rules of Pleading), in part, adds new subdivision (c) pertaining to verification of documents. As proposed, new subdivision (c)(1) would provide the statement to be included when verification is done in an individual capacity, and new subdivision (c)(2) would provide the statement to be included when verification is done in a representative capacity on behalf of a corporate entity. One of the comments filed takes issue with this proposed new provision pertaining to verification, specifically, the provision containing the oath to be given when a document is verified in a representative capacity. This provision is not contained in current Florida Rule of Civil Procedure 1.110, and the Committee does not explain the source of the wording it proposes. Accordingly, we decline to adopt this particular portion of the proposed amendment to this rule.

Next, the proposed amendments to Florida Family Law Rule of Procedure 12.210 (Parties), in part, create a new subdivision (b) incorporating the provisions of Florida Rule of Civil Procedure 1.210 and stating that the "court shall have the discretion to appoint a guardian ad litem and/or attorney ad litem for a minor, incapacitated, or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor, incapacitated, or incompetent person." A comment filed pertaining to this proposal raised the concern that this language is contrary to section 61.401, Florida Statutes (2016), and case law, noting that in some circumstances, appointment of a guardian ad litem is mandatory. See Turnier v. Stockman , 139 So.3d 397, 400 n.2 (Fla. 3d DCA 2014) (setting forth circumstances in which courts may or must appoint guardian ad litem).

Florida Rule of Civil Procedure 1.210(b), currently applicable in family law proceedings, provides in part that the court "shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person." Although this provision uses the term "shall," appointment of a guardian ad litem under this rule has been construed as being discretionary in nature. Tallahassee Mem'l Reg'l Med. Ctr. v. Petersen , 920 So.2d 75, 78 (Fla. 1st DCA 2006). Thus, by changing this provision from "shall appoint" to "shall have the discretion to appoint," the Committee has not changed its meaning. Further, courts applying this rule have recognized that although the rule is discretionary, other specific statutes and rules may require appointment of a guardian ad litem under certain circumstances. As pointed out by the comment, section 61.401, Florida Statutes (2016), provides:

In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the

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