Jones v. Jones, AS-153
| Decision Date | 18 February 1985 |
| Docket Number | No. AS-153,AS-153 |
| Citation | 463 So.2d 564,10 Fla. L. Weekly 448 |
| Parties | 10 Fla. L. Weekly 448 Herndon W. JONES, Jr., Appellant, v. Beverly A. JONES, Appellee. |
| Court | Florida District Court of Appeals |
Elliot Zisser of Zisser, Robison, Spohrer, Wilner & Harris, P.A., Jacksonville, for appellant.
Stephen O. Parker, Jacksonville, for appellee.
In this appeal from a modification of, and supplement to, a final judgment of dissolution of marriage, appellant-husband raises three issues for our consideration: (1) whether the trial court abused its discretion by refusing to permit adequate discovery of the wife's medical and mental condition as a criterion affecting her fitness for custody of the minor children; (2) whether the trial court erred in failing to specify that upon sale of the former marital residence the husband would be entitled to a credit against the wife's share of the proceeds for one-half of all payments made as periodic alimony of the mortgage, interest, taxes and insurance; and (3) whether the award to the wife of child support, alimony, and attorney fees in excess of husband's ability to pay was an abuse of discretion.
The husband and wife, married since May 6, 1972 and having two minor sons, filed a petition and counter-petition respectively for dissolution of marriage, each seeking custody of the children. Requests by each party for psychological evaluations of the other were denied by the trial court. Attached to the husband's request was an affidavit, alleging that the wife was a habitual user of narcotics and therefore mentally incapable of caring for the children. The wife filed a motion, seeking temporary support, a limitation on the husband's discovery and enforcement of a prior order which had directed telephonic communication with the children. In support of her motion to limit discovery, the wife asked "for a protective order to limit the time within which counsel for the husband may depose her and to limit the number of depositions that such counsel intends to take of other persons." The motion was phrased in that manner because, at the time it was filed, the husband's attorney had not served upon the wife any notices of depositions or of production of documents, as required by Florida Rule of Civil Procedure 1.351. Following the service of the wife's motion, the husband filed notices of production from non-parties, pursuant to rule 1.351. The notices were apparently filed in an attempt to support the husband's prior affidavit, alleging the wife's excessive use of narcotics, because the notices had attached to them the names of thirty-seven physicians, nine hospitals and four outpatient clinics that the husband intended to have subpoenaed for the purpose of producing the wife's medical records. As a result of this sequence of pleadings, the only motion before the court at the hearing which culminated in the order of April 13, 1982, limiting discovery, was the wife's motion.
Although the court generally restricted the scope of discovery, it did permit the husband to review the medical records in the custody of Doctors Gatling and Garcia, and to depose them. The deposition testimony of Dr. Gatling later revealed that he had treated the wife with prescription medications for a "prolapsed microvalve" (sic) of her heart, as well as for headaches and nausea associated with that condition, and for chronic migraine headaches. This treatment continued for seven and one-half years from October of 1974 until March of 1982, and at no time during that period did he have any indication that she had problems with drug use, or that she might be unfit to care for her children due to such use. Dr. Gatling, however, was aware that she had been seeing at least three other physicians for lung and abdominal conditions and headaches.
After the first part of a bifurcated final hearing, the trial court entered final judgment of dissolution of marriage, awarding to the wife temporary custody of the children, temporary child support payments, alimony, and relief from mortgage obligations, as well as the temporary, exclusive use and possession of the marital home. The court reserved ruling on the issues of permanent custody, visitation, child support, alimony, possession of the marital home, attorney's fees and costs.
The unresolved issues were the subject of a second final hearing, at which conflicting evidence was presented by various witnesses--relatives, neighbors, employers, the children's teachers, the parties themselves--as to the quality of care each of the parents had provided to the children. The trial court ultimately entered the appealed modification to the final judgment of dissolution, wherein it granted the wife the primary residential custody of the two children, subject to the husband's right of reasonable visitation, and directed the husband to pay: (1) as periodic alimony, the monthly mortgage payments of $211.89 on the marital home; (2) child support of $140 biweekly for both children until each reaches age 18, marries or becomes self-supporting; (3) rehabilitative alimony of $40 biweekly for two years; and (4) $5,279.70 in attorney fees and costs, payable in $100 monthly installments. The wife was granted exclusive use and possession of the marital home until the children reach age 18, marry or become self-supporting, with the provision that "[a]fter the exclusive use and occupancy has terminated, on sale of the residence, the husband shall be entitled to receive reimbursement of one-half of all payments of principal, interest, taxes and insurance so made by him."
We agree that it was improper, under the circumstances, for the lower court to limit discovery without first conforming with the requirements of rule 1.351. The wife's motion to limit discovery was filed pursuant to the provisions of rule 1.280(c), generally authorizing relief from discovery in "order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, ...." The record before us, however, does not reveal the wife's prior compliance with the dictates of rule 1.351(b), stating that if a party within ten days of the service of notice upon him or her, objects to production of documents, "the documents or things shall not be produced under this rule." (e.s.) The committee note to rule 1.351 further provides that, in the event of an objection, "recourse must be had to rule 1.310." Rule 1.310 in turn prescribes the procedure to be followed when taking depositions upon oral examination of any person, including the procedure for raising objections during such examinations.
It should be observed that the purpose behind rule 1.351's adoption was to provide...
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