Hickey v. Burlinson

• Decision Date: 30 April 2010
• Docket Number: No. 5D09-4522.,5D09-4522.
• Citation: 33 So.3d 827
• Parties: Diana HICKEY, Petitioner,v.John R. BURLINSON, Respondent.
• Court: Florida District Court of Appeals

33 So.3d 827

Diana HICKEY, Petitioner,
v.
John R. BURLINSON, Respondent.

No. 5D09-4522.

District Court of Appeal of Florida,
Fifth District.

April 30, 2010.

33 So.3d 828

Richard L. Wilson, Orlando, for Petitioner.

George B. Wallace, Sanford, for Respondent.

PER CURIAM.

Diana Hickey petitions for writ of certiorari following the trial court's denial of her motion to temporarily halt visitation between her two children and their father, John Burlinson. Hickey alleged that Burlinson was abusing alcohol during his visitation and, as a result, endangering the children's safety. Hickey requested an abatement of visitation pending a determination of the extent of Burlinson's alcohol consumption and the danger posed to the children. Along with the motion, she requested, pursuant to Florida Family Law Rule of Procedure 12.407, leave for the minor children to attend and testify at the hearing. The trial court granted the motion and instructed Hickey's counsel to arrange a date and time for the children to testify.

Hickey and the children travelled to Florida from Massachusetts for the hearing and appeared with counsel and a court reporter. Hickey objected when the trial court requested the children's presence in chambers for their testimony, but would not allow the court reporter to be present. The trial court then asked Hickey to withdraw her rule 12.407 motion. Hickey declined, stating that without the children's testimony there was no evidence of the alleged alcohol abuse and she could not meet her burden to provide record evidence in support of the motion. The trial court refused to conduct the interview with the court reporter present and denied the motion to abate visitation for lack of evidence.

33 So.3d 829

Hickey argues that the trial court denied her due process by not allowing her to present evidence supporting her claim. She also contends that “being heard” means more than the opportunity for her counsel to explain a position to the trial court. Lastly, she submits that an in camera evidentiary inquiry outside the presence of the court reporter precludes judicial review, and also denies her due process.

We initially consider the issue of jurisdiction. Hickey alleges this court has jurisdiction pursuant to Article V, section 4(b)(3) ¹, of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(3), which confer original jurisdiction upon district courts of appeal to issue writs of common law certiorari. We disagree because the order on appeal should be considered an appealable, non-final order.

Under rule 9.130(a)(3)(C)(iii), appealable non-final orders are limited to those that determine “the right to immediate monetary relief or child custody in family law matters.” (Emphasis added.) A “child custody proceeding” is defined as one in which legal custody, physical custody, residential care, or visitation with respect to a child is at issue. See § 61.503(4), Fla. Stat. (2009). Thus, we conclude an order regarding visitation is an appealable, non-final order. Our conclusion reflects the majority view. See Lawrence v. Peyton, 9 So.3d 670, 670 (Fla. 3d DCA 2009) (stating, “[W]e are comfortable that non-final orders determining visitation in family law cases are reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)....”); Cuartas v. Cuartas, 951 So.2d 980, 981, n. 1 (Fla. 3d DCA 2007) (accepting jurisdiction pursuant to rule 9.130(a)(3)(C)(iii) of an order denying former husband's motion for contempt and for immediate change of primary residence); Drago v. Drago, 895 So.2d 529, 529 (Fla. 4th DCA 2005) (re-designating a petition for writ of certiorari concerning an order modifying visitation rights and awarding attorney's fees as a non-final appeal under rule 9.130(a)(3)(C)(iii)); Doyle v. Owens, 881 So.2d 717,...