Inglis v. Casselberry
| Decision Date | 15 July 2016 |
| Docket Number | No. 2D15–4993.,2D15–4993. |
| Parties | Richard K. INGLIS, as Special Trustee under the Last Will and Testament of Rosa B. Schweiker dated February 2, 1961; Brian Berlinger, Individually and as Trustee under the Last Will and Testament of Rosa B. Schweiker dated February 2, 1961; and Michael R. Presley, Individually and as Trustee of the Schweiker–Berlinger Irrevocable Life Insurance Trust, Petitioners, v. Roberta Sue CASSELBERRY, f/k/a Sue C. Berlinger; and Bruce Berlinger, Respondents. |
| Court | Florida District Court of Appeals |
Louis D. D'Agostino and Edward K. Cheffy of Cheffy Passidomo, P.A., Naples, for Petitioners Richard K. Inglis and Michael R. Presley ; and Robert M. Presley of Presley Law & Associates, P.A., Wellington, for Petitioner Brian Berlinger.
Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale; and Alan J. Braverman of Law Offices of Alan J. Braverman, Fort Lauderdale, for Respondent Roberta Sue Casselberry, f/k/a Sue C. Berlinger.
No appearance for remaining Respondent.
, Judge.
Richard Inglis, Brian Berlinger, and Michael Presley, as trustees of two trusts, seek certiorari review of an “Order Overruling the Objections of Third–Party Defendants to the Former Wife's Second Request for Production of Documents.” We grant the petition for writ of certiorari and quash the order on review.
This certiorari petition arises out of postjudgment proceedings between Bruce Berlinger, the former husband, and Roberta Casselberry, the former wife. The protracted history of the litigation between the parties is laid out in two prior opinions from this court. Berlinger v. Casselberry, 133 So.3d 961 (Fla. 2d DCA 2013)
; see also
Inglis v. Casselberry, 137 So.3d 389 (Fla. 2d DCA 2013). To summarize, after the former spouses entered in a marital settlement agreement, which was incorporated into a final judgment, the former husband stopped paying the former wife the agreed-upon amount of $16,000 per month in alimony. The former wife obtained an order finding the former husband in contempt and granting continuing writs of garnishment on discretionary distributions to the former husband from four family trusts. Berlinger, 133 So.3d at 962, 964.1 This court affirmed the continuing writs of garnishment, concluding that the discretionary disbursements to the former husband from the trusts are subject to garnishment by the former wife and that the spendthrift provisions of the trusts are unenforceable as to the former wife because she is a former spouse with a judgment against a beneficiary for support or maintenance. Berlinger, 133 So.3d at 965–66 ; Inglis, 137 So.3d at 390.
Relevant to the instant certiorari proceeding, in 2013 the former wife filed in the trial court a supplemental petition for supplemental proceeding against the former husband. She named the following as third-party defendants: Michael R. Presley, individually and in his capacity as the trustee of the Schweiker–Berlinger Irrevocable Life Insurance Trust; Richard Inglis, in his capacity as special trustee of the Trust under the Last Will and Testament of Rosa B. Schweiker dated February 2, 1961; and Brian Berlinger (an adult son of the former wife and the former husband), in his capacity as the individual trustee of the Trust under the Last Will and Testament of Rosa B. Schweiker dated February 2, 1961.2 The former wife served on the three trustees requests for the production of trust documents, seeking, among other things, all documents relating to “distributions to and for the benefit of” the former husband and all documents relating “to the reason for each distribution made to or for the benefit” of the former husband. The requests also sought all documents relating “to distributions to and for the benefit of the” parties' three adult children—Brian Berlinger, Stacey Sue O'Connor, and Heather Anne Berlinger—and all documents relating “to the reason for each distribution made to or for the benefit” of the three adult children. The three trustees filed objections to the requests for production, arguing, among other things, that the personal finances of the adult children are not at issue and that the documents relating to their trust distributions are not relevant. The trustees also argued that the children have a right to privacy with regard to their personal financial information under the Florida Constitution.
The trial court rejected the privacy argument asserted by the trustees, finding that “[t]he issue remains one of relevancy[ ] and [that] clearly the documentation sought is relevant to the issues at hand.” The trial court determined that a hearing was not required and would be a waste of judicial resources because “the relevancy of the requested documents is readily apparent.” The trial court ordered the trustees to comply with the requests for production within thirty days.
In their petition for certiorari review, in which the adult children join, the trustees argue that the personal financial information of the adult children is protected by the right to privacy set forth in article I, section 23, of the Florida Constitution
. They contend that such information is subject to discovery only if it has been determined to be relevant and that such determination must be made after an evidentiary hearing. The trustees argue that in the absence of any evidence indicating that their personal financial information is relevant to the underlying proceedings, the adult children have a right to keep their personal financial information private.
“A petition for certiorari is appropriate to review a discovery order when the ‘order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Winderting Invs., LLC v. Furnell, 144 So.3d 598, 601–02 (Fla. 2d DCA 2014)
(quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) ). An order compelling production of documents containing private financial information regarding a nonparty is reviewable by certiorari because the nonparty has no adequate remedy by appeal. Rowe v. Rodriguez–Schmidt, 89 So.3d 1101, 1103 (Fla. 2d DCA 2012) ; Borck v. Borck, 906 So.2d 1209, 1211 (Fla. 4th DCA 2005).
“Article I, section 23, of the Florida Constitution
protects the financial information of persons if there is no relevant or compelling reason to compel disclosure.” Rowe, 89 So.3d at 1103 (quoting Borck, 906 So.2d at 1211 ). “This is because ‘personal finances are among those private matters kept secret by most people.’ ” Id. (quoting Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) ). Thus, the issue in this case is one of relevancy. “When a judgment creditor seeks to discover the personal financial information of a nonparty, he or she bears the burden of proving that the information sought is relevant or is reasonably calculated to lead to the discovery of admissible evidence.” Furnell, 144 So.3d at 602 (citing Rowe, 89 So.3d at 1103 ). Further, the determination of relevancy should generally be made after an evidentiary hearing, due to the “strong public policy underlying this constitutional protection” of private financial information. Rowe, 89 So.3d at 1103 ; see also
Spry v. Prof'l Emp'r Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008) ().
We note that this case involves postjudgment discovery, which is generally broader in scope than prejudgment discovery. See 2 245 Venetian Court Bldg. 4, Inc. v. Harrison, 149 So.3d 1176, 1179 (Fla. 2d DCA 2014)
. The matters relevant for postjudgment discovery are those that will enable the judgment creditor to collect a debt or those that encompass information identifying or leading to the discovery of assets available for execution. See id.;
Gen. Elec. Capital Corp. v. Nunziata, 124 So.3d 940, 943 (Fla. 2d DCA 2013). But a proper predicate must be laid before “someone other than the judgment debtor may be required to submit to financial discovery.” Furnell, 144 So.3d at 602
(quoting Nunziata, 124 So.3d at 943 ).
In Rowe, the former wife was successful in setting aside the former husband's modification of his child support obligation and she sought attorneys' fees based on her need and the former husband's ability to pay. 89 So.3d at 1103
. In litigating the fee issue, the former husband requested her tax returns for two years. She...
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