Bell v. Bell

• Decision Date: 28 January 1975
• Docket Number: No. 74--349,74--349
• Citation: 307 So.2d 911
• Parties: Carol Jane BELL, Appellant, v. Donald Leonard BELL, Appellee.
• Court: Florida District Court of Appeals

Page 911

307 So.2d 911

Carol Jane BELL, Appellant, v. Donald Leonard BELL, Appellee.

No. 74--349.

District Court of Appeal of Florida, Third District.

Jan. 28, 1975.

Rehearing Denied Feb. 26, 1975.

G. David Parrish, Coral Gables, and James L. Wall, Jr., Miami, for appellant.

Horton, Perse & Ginsberg, Miami, George Baker Thomson, Coral Gables, for appellee.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

NATHAN, Judge.

Appellant, Carol Jane Bell, natural mother of two minor children, appeals from a final order of the trial court transferring permanent custody of the children from her to the natural father, Donald Leonard Bell.

The parties hereto were divorced by order of the circuit court, Dade County, on June 9, 1970, wherein the mother was granted sole custody, care and control of the children of the parties with rights of reasonable visitation by the father. This domestic strife again reached the circuit court on January 24, 1973, by a petition by the father that he be granted permanent custody of the children and for relief from child support and alimony, alleging therefor, in effect, as a basis, that the mother was unfit to have custody of the children. No further proceedings transpired until June 19, 1973, when the trial judge entered the following order of referral to a master for hearing:

'This cause coming on to be heard this day on the husband's Motion for Custody and Other Relief dated January 24, 1973, filed hereby by DONALD L. BELL, Husband, and the Court being fully advised, it is thereupon.

1. ADJUDGED that QUENTIN T. ELDRED, Special (sic) Master of the Circuit Court of this Judicial Circuit, be and he is hereby directed to take all necessary hearings on the Husband's said Motion, as such Special (sic) Master, and perform all other duties necessary and incidental thereto, pursuant to, and as provided by, Administrative Order No. 73--15 of this Court, and Rule 1.490 of the Florida Rules of Civil Procedure, and report back to this Court, as soon as is practicable, his findings and recommendations.'

The mother filed her response to the father's petition denying the material allegations contained therein. She also strenuously objected to the appointment of the master by the court and filed a suggestion for a writ of prohibition which was denied by this court on September 18, 1973. ¹ On August 28, 1973, the trial court, pursuant to the petition of the father for change of custody, entered an order compelling the mother to produce the children before Quentin Eldred, general master, for the taking of testimony on the father's petition which had been referred to the master by the order of June 19, 1973. On September 13, 1973, Quentin Eldred as general master, filed his findings and recommendations and proposed order recommending that the father, Donald Leonard Bell, be granted permanent custody with rights of visitation to the mother. On September 21, 1973, the mother filed her exceptions to the general master's report and as grounds therefor alleged that the master erred as a matter of fact and as a matter of law, setting forth numerous specific arguments therefor. On September 28, 1973, the trial court entered the following order referring the mother's exceptions to the general master's report to Irwin Futerfas as special master for the circuit court, to consider the mother's exceptions to such general master's report.

'UPON CONSIDERATION of Wife's Motion to Set-Aside this Court's Order and Wife's Motion for Hearing upon her Exceptions to the report of General Master filed in this cause on the 21st day of September, 1973, this Court having heard argument of Counsel for Wife and Counsel for Husband, it is hereby

ORDERED AND ADJUDGED:

1. This Court's Order Transferring Custody entered on the 24th day of September, 1973, is hereby vacated, in that it was entered prematurely.

2. This cause pursuant to RCP 1.490 is hereby referred to IRWIN FUTERFAS as Special Master for the Circuit Court, in the absence of the Hon. Quentin T. Eldred, General Master of the Circuit Court of the 11th Judicial Circuit, and, as such Special Master, is hereby directed to consider Wife's Exceptions to Report of General Master as filed with this Court on the 21st day of September, 1973 . . . and report back to this Court, as soon as is practicable, his findings and recommendations. . . .'

Thereafter, on October 10, 1973, Irwin Futerfas, as special master, filed his report recommending that the report of Quentin Eldred be approved and ratified and that the mother's exceptions thereto as to fact and as to law, be denied. ² On October 5, 1973, the circuit court entered its order granting temporary custody of the children to the father. A supplemental order was entered on October 15, 1973. On October 19, 1973, the wife filed exceptions to the report of the special master with reference to his hearings on the wife's exceptions to the general master's report (which were 'denied in toto' by the court in an order of November 19, 1973) and on October 24, the wife filed a motion to vacate the supplemental order, stating as a ground that same was entered without motion, notice or hearing. There was a hearing on the motion of the mother to vacate such supplemental order, and in November this cause was again referred back to the general master under the original order of referral of June 19, 1973, for further hearing on the wife's motion to terminate the prior custody order of October 5, 1973. The general master, pursuant to such order, filed another report recommending that custody of the children remain with and be granted to the father, which recommendation was ratified and approved by the trial court by order of February 7, 1974, which order is the subject matter of this appeal.

The mother has raised two critical and meritorious points on appeal. First, she asserts that the court erred and abused its discretion by referring the matter of custody of her children to the general master over her strong objection. Second, she contends that the trial judge erred in that upon receiving the general master's findings nd recommendations, the court improperly referred her exceptions thereto to a special master to consider such exceptions to the general master's report.

As to the first point, there can be no doubt that the entire matter of the father's petition including custody of the children was referred to the general master by the court's order of June 19, 1973, under Administrative Order No. 73--15 of the circuit court ³ and reports with recommendations thereon were made by the general master in such capacity.

There is no provision in Administrative Order No. 73--15 for the handling of post-decretal custody matters by the general master. Therefore, the court was without authority to direct the general master under Administrative Order No. 73--15 to determine the matter of custody where an objection was made by an interested party.

As to the second point, it is well established that special masters may be appointed to serve in a ministerial capacity to perform a particular service to aid the court in an accurate and expeditious determination of a cause. Rule 1.490, RCP; Slatcoff v. Dezen, Fla.1954, 74 So.2d 59. We fully realize that in the circuit here involved, the trial dockets are often unusually congested due to a tremendous volume of litigation. We also realize that such congestion taxes the capacity of the most devoted judges....