Perez v. Perez, 99-2182.

• Decision Date: 27 October 1999
• Docket Number: No. 99-2182.,99-2182.
• Citation: 769 So.2d 389
• Parties: Deborah PEREZ, Appellant, v. Jorge M. PEREZ, Appellee.
• Court: Florida District Court of Appeals

769 So.2d 389

Deborah PEREZ, Appellant, v. Jorge M. PEREZ, Appellee.

No. 99-2182.

District Court of Appeal of Florida, Third District.

October 27, 1999.

Rehearing Denied December 7, 1999.

Marsha B. Elser, Miami; Cynthia L. Greene, Miami, for appellant.

Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin, & Perwin, and Joel S. Perwin, Miami; Barranco, Kircher, Vogelsang & Boldt, and Kimberly L. Boldt, Miami, for appellee.

Before GERSTEN, SHEVIN, and SORONDO, JJ.

ON APPELLANT'S RENEWED MOTION TO PROHIBIT FURTHER INVOLVEMENT IN THESE APPELLATE PROCEEDINGS BY THE GUARDIAN AD LITEM AND/OR COUNSEL APPEARING ON BEHALF OF THE GUARDIAN AD LITEM

GERSTEN, Judge.

Appellant, Deborah M. Perez ("the Former Wife"), moves this Court to prohibit further involvement in these appellate proceedings by the Guardian ad Litem ("Guardian") and counsel appearing on behalf of the Guardian. We grant the Former Wife's motion and write further to discuss our serious concerns regarding the proceedings in this case, and to clarify that there is no statutory basis for a Guardian to file motions and a brief in a child custody appeal.¹

Background Facts

The Former Wife and appellee Jorge M. Perez, ("the Former Husband") divorced in 1995. The Former Wife became primary residential parent of the parties' three minor children. In November of 1996, the parties agreed to a modification of the marital settlement agreement which specifically provided that the Former Wife could permanently relocate the children to the State of Utah in June of 1998.

In accordance with the 1996 agreement, the Former Wife purchased property in Utah, sold the home where she and the children were living in Miami, enrolled the children in a Utah school, and notified the Former Husband that she and the children would be relocating to Utah on June 18, 1998. However, two weeks prior to the scheduled and agreed upon departure date, the Former Husband filed a petition for modification of custody and attempted on an emergency basis to enjoin the Former Wife from relocating the children. The trial court denied the emergency motion determining the parties had agreed to the relocation, and the Former Wife and children moved to Utah.

Thereafter, pursuant to the parties' visitation agreement, the children spent the summer of 1999 visiting with the Former Husband. The children having been enrolled in school in Utah, were to be returned to the Former Wife on August 21, 1999. During this agreed summer visitation, the Former Husband's petition for modification proceeded to trial. On July 30, 1999, the trial court entered an order modifying custody which is the subject of the main appeal.

The order split custody of the children, awarding custody of the two sons to the Former Husband, and custody of the parties' daughter to remain with the Former Wife.² The trial court's basis for splitting custody was the expressed preference of the two sons to live in Miami.

In its order, the court noted that the Guardian, Jacqueline Valdespino, testified there was a substantial change in circumstances in accord with the Former Husband's position. However, the court explained that it did not base its decision solely on the Guardian's testimony and report, because "part of her testimony at trial, as well as part of her conclusions in the Guardian Ad Litem's report ... are based partly on evidence which is clearly hearsay...."

On August 9, 1999, the Former Wife filed a Motion for Rehearing and Motion For Stay Pending Appeal which was denied by the trial court on August 20, 1999.³ On August 23, 1999, the Former Wife filed her notice of appeal, and the next day filed an emergency motion seeking a stay of the trial court order, pending review in this Court.

Appellate Proceedings: A Barrage of Motions

On August 24, 1999, the Former Wife filed an Emergency Motion for Stay Pending Review and a Motion to Expedite Appeal. The Former Wife's motion for stay alleged a likelihood of success on the merits, and that the best interests of the children required maintaining the status quo. Pursuant to her agreement with the Former Husband, the Former Wife requested that the children resume school in Utah pending a final decision on appeal. This Court granted the Former Wife's motions ordering a stay pending appeal, and that the appeal be expedited.⁴ This Court's order granting the stay resulted in a flood of motions, including an "Emergency Motion For Rehearing of Stay" filed by the Guardian advocating the Former Husband's position, and a "Notice of Appearance filed by an attorney on behalf the Guardian".⁵ Not surprisingly, the Former Husband also filed an emergency motion for review of the order granting the stay.⁶ On August 26, 1999, this Court denied both the Former Husband's and the Guardian's motions.

In accordance with this Court's mandate, the parties' two sons were sent to Utah on August 27, 1999. Three days later, on August 30th, the oldest son traveled to Miami where he was met at the airport by the Former Husband. This prompted the Guardian and the Former Husband to once again attempt to evade the stay order.

The Former Husband first filed an emergency motion in the trial court where the trial judge held an emergency hearing by telephone. The Former Husband told the trial court that the Guardian had "advised" him not to return the child to the Former Wife in Utah "before [the child sees] a professional counselor who can address his present state of mind." The trial court denied the motion finding that this Court had "effectively taken jurisdiction" over the matter, and ordered the child be returned to Utah to "comply with the law that is now the law of this case; i.e. the stay of these proceedings."

Instead of returning the child, however, both the Guardian and the Former Husband then decided to file motions again in this Court. The Guardian's emergency motion asked this Court to "relinquish jurisdiction" to the trial court to consider testimony as to possible emotional damage to the parties' eldest son. The Former Husband filed a similar motion entitled "Father/Appellee's Response in Support of Guardian Ad Litem's Emergency Motion to Relinquish Jurisdiction." Both the Former Husband's and the Guardian's motions were denied. Our denial of these motions was based upon what should be an obvious theorem—that parents and their minor children must obey court orders.

We are extremely concerned over this type of motion practice and caution counsel that "appellate motion practice is not a game of ping-pong in which the last lawyer to serve wins." See Sarasota County v. Ex, 645 So.2d 7 (Fla. 2d DCA 1994). To an even greater extent, we are extremely concerned with the impact of such behavior on children. Children should not be "played" as if in a game of ping-pong where the parent with the greater resources to serve the greatest number of motions wins.

Apparently, the Former Wife was also disturbed by the Guardian's involvement in the appellate proceedings, and moved to prohibit further involvement by the Guardian when she filed her response to the Guardian's second emergency motion on September 1, 1999. Although we denied the motion to prohibit at this time, see infra note 1, the denial was "without prejudice to renew if necessary." When the Guardian notified counsel for the Former Wife of her intent to file an appellate brief with this Court, the Former Wife renewed her motion. For the reasons that follow, we grant the motion and prohibit further involvement of the Guardian in these appellate proceedings.

The Role of a Guardian Ad Litem In Child Custody Appellate Proceedings

The universally recognized function of a guardian ad litem in a custody dispute is to protect the best interests of children. Litigation involving custody issues can be particularly acrimonious and, unfortunately, children are particularly vulnerable to the harms commonly associated with hostility and conflict between parents. Guardians ad litem serve an important role, under limited circumstances, by acting as representatives of children and promoting society's interest in protecting children from the traumas commonly associated with divorce and custody disputes. See Scaringe v. Herrick, 711 So.2d 204 (Fla. 2d DCA 1998); Representing Children: Standards For Attorneys and Guardians Ad Litem In Custody or Visitation Proceedings (With Commentary), 13 J. Am. Acad. Matrim. Law. 1 (Summer 1995).

Once appointed, the powers and authority of a guardian ad litem include investigation, discovery matters, requesting necessary examinations of the parties or the child, obtaining impartial examinations and making recommendations to the court. See § 61.403 Fla. Stat. (1997). However, the duties and responsibilities of a guardian ad litem are not coextensive with those of an attorney. See Roski v. Roski, 730 So.2d 413 (Fla. 2d DCA 1999); see also Representing Children: Standards For Attorneys and Guardians Ad Litem In Custody or Visitation Proceedings (With Commentary), 13 J. Am. Acad. Matrim. Law. 1 (Summer 1995)(a guardian ad litem who is also an attorney should not combine the roles of counsel and guardian; Standard 3.1). In fact, Section 61.401, Florida Statutes (1997) specifically provides that the role of a guardian ad litem is "to act as next friend of the child, investigator or evaluator, not as attorney or advocate." See also, § 61.403 Fla. Stat. (1997).

And so we come to the crux of our concerns in these proceedings. Section 61.401 states that the guardian shall not act as an advocate and the Guardian's role is defined as limited to the specific litigation in which the Guardian is appointed. See Roski v. Roski, 730 So.2d at 413; Black's Law Dictionary 70 (6th ed.1990). Section 61.403 delineates the Guardian's powers and authority in the context of trial court proceedings. Nowhere is there any reference to appellate court proceedings in the statutes pertaining to the responsibilities of guardians ad litem.⁷

An appellate court...