Palm Beach Newspapers, Inc. v. Limbaugh, 3D05-1799.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPer Curiam
Citation967 So.2d 219
PartiesPALM BEACH NEWSPAPERS, INC., d/b/a The Palm Beach Post, Appellant, v. Rush LIMBAUGH and Marta Miranda, Appellees.
Docket NumberNo. 3D05-1799.,3D05-1799.
Decision Date30 December 2005
967 So.2d 219
PALM BEACH NEWSPAPERS, INC., d/b/a The Palm Beach Post, Appellant,
Rush LIMBAUGH and Marta Miranda, Appellees.
No. 3D05-1799.
District Court of Appeal of Florida, Third District.
December 30, 2005.
Rehearing Denied October 3, 2007.

An Appeal from the Circuit Court for Monroe County, Sandra Taylor, Judge.

Reeder & Reeder and L. Martin Reeder, for appellant.

Caruana and Lorenzen and Dirk Lorenzen; Richman Greer Weil Brumbaugh Mirabito & Christensen and Bruce A. Christensen, for appellees.




Denied. See Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005).

SUAREZ and CORTIÑAS, JJ., concur.

COPE, J. (dissenting from the denial of a motion for rehearing and certification of question).

Two questions are presented by this case. First, does a marital settlement agreement become a public record when the trial judge reviews it, initials it, and makes findings about it during a dissolution of marriage proceeding, even though it is handed back to the parties and never filed of record? The answer to that question is yes, unless the husband and wife can demonstrate the existence of an applicable exemption to the public records constitutional provision. See Art. I, § 24(a), Fla. Const.

Second, in the situation just described, what is the correct procedure for the press or a member of the public to obtain access to the marital settlement agreement? The prevailing view is that such a document may be requested by filing a motion in the matrimonial case, and requesting leave to intervene for that purpose. We should grant rehearing and certification.

I. Procedural Background

Rush Limbaugh, the husband, and Marta Miranda, the wife, decided to dissolve their marriage. With the advice of their respective counsel, they signed a twenty-two-page marital settlement agreement.

The husband filed a petition for dissolution of marriage in the Circuit Court for Monroe County in Key West on December 21, 2004. The petition stated that there were no minor children of the marriage and that the parties had agreed, through counsel, to a division of their property. The wife, Marta Miranda, simultaneously filed her answer, admitted the allegations of the petition and asked only that her family name be restored.

The same day the trial court held a hearing on the petition, during which it read the marital settlement agreement and initialed each page of the document. It then returned the marital settlement agreement to the parties. The final judgment of dissolution of marriage incorporated the agreement by reference and noted that:

In the interest of privacy for the parties, the Court is not requiring the Marital Settlement Agreement to be filed in the

967 So.2d 220

public court file. The Court has placed its mark on each page so that the authenticity of the Agreement, including each page thereof, can be determined in any subsequent proceeding that may be necessary.

The final judgment was recorded on December 23, 2004. The court granted the parties' ore tenus motion to seal the file.

The dissolution of marriage was reported in the press in January 2005. The stories noted that the terms of the settlement were not disclosed.

On March 15, Palm Beach Newspapers, Inc. ("The Palm Beach Post" or "The Post"), filed a motion to unseal the court file. This motion was filed in the dissolution of marriage case file. The former husband and former wife informed the court that they had no objection, and the court file was unsealed on March 18.

When The Post discovered that the marital settlement agreement was not in the court file, it filed a "Motion for Order Requiring Marital Settlement Agreement to be Filed with the Clerk and Recorded in the Official Records." The Post asked the court to direct the former husband and former wife to file the marital settlement agreement in the public court file.

The trial court conducted a hearing and granted The Post's ore tenus motion to intervene for purposes of the motion. On the merits, the court expressed doubt about whether it had jurisdiction to order the requested relief. The court then said, "[t]o avoid piecemeal appeals, the Court reaches the merits of the motion without deciding whether it has subject matter jurisdiction[.] . . . The Marital Settlement Agreement is not a Court record as defined by the Rules and applicable case law[.]" Accordingly, the trial court denied relief.

The Post filed in this court a petition for review of the trial court's order. See Fla. R.App. P. 9.100(d). This court denied the petition by unpublished order.

The Post filed a motion for rehearing, rehearing en banc, and certification of a question of great public importance. In the motion The Post requested issuance of a written opinion. The majority has denied the motion on the authority of Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005).

I believe the motion for rehearing is well taken and we should grant it.

II. The Marital Settlement Agreement is a Public Record

When The Post's petition for review was originally submitted to our panel, I voted to deny it because I agreed with the trial judge's conclusion that the marital settlement agreement was not a public record. It seemed to me that so long as the agreement had not been filed by the parties in the court file, it followed that the agreement was not a public document. See Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987). On revisiting the issue in light of the motion for rehearing, however, I am now convinced that my earlier conclusion was in error.

Controlling here is the plain language of Florida's constitutional right of access to public records. Under Article I, Section 24, a public record is one which is "made or received in connection with the official business of any public . . . officer . . . of the state," unless the record has been exempted from public disclosure by statute or another constitutional provision. Id. (emphasis added); Art. I, § 24(a), Fla. Const. This constitutional provision specifically applies to the judicial branch, id., and is self-executing. Id. at Art. I,

967 So.2d 221

§ 24(c).1 Turning now to the facts of this case, there was a hearing in the trial court on the petition for dissolution of marriage. At that time, the parties handed the trial judge the marital settlement agreement. The judge reviewed it and "received testimony that the Marital Settlement Agreement was negotiated between the parties, through counsel, and was entered into freely, voluntarily and without duress." The court placed a mark on each page and returned the document to the parties.

The conclusion is inescapable that the marital settlement agreement is a judicial record. The trial judge received it, reviewed it, initialed it, and made findings about it in the hearing on the petition for dissolution of marriage. The agreement was received by the judge in connection with the official business of the court, and is therefore a judicial record. See id. Art. I, § 24(a), Fla. Const.; see also Media Gen. Convergence, Inc. v. Chief Judge, 840 So.2d 1008, 1016 (Fla.2003) (documents received by chief judge in connection with court business are judicial records subject to public disclosure unless there is an applicable exemption from disclosure); cf. State v. City of Clearwater, 863 So.2d 149, 155 (Fla.2003) (personal e-mails on government computers are not public records); Smithwick v. Television 12, 730 So.2d 795, 798 (Fla. 1st DCA 1999) (where trial court erroneously allowed discovery documents to be removed from court file, the documents must be returned to the file); Tober v. Sanchez, 417 So.2d 1053, 1054-55 (Fla. 3d DCA 1982) (where records custodian transferred records to county attorney and refused to comply with public records request, the records must be returned to the custodian and produced).

The former husband and former wife argue that the true test...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT