Rowe v. Rodriguez–Schmidt

• Decision Date: 13 June 2012
• Docket Number: No. 2D11–5653.,2D11–5653.
• Citation: 89 So.3d 1101
• Parties: Michelle ROWE f/k/a Michelle Borysek–Rodriguez, Petitioner, v. Jose A. RODRIGUEZ–SCHMIDT, Respondent.
• Court: Florida District Court of Appeals

89 So.3d 1101

Michelle ROWE f/k/a Michelle Borysek–Rodriguez, Petitioner,

v.Jose A. RODRIGUEZ–SCHMIDT, Respondent.

No. 2D11–5653.

District Court of Appeal of Florida,

Second District.

June 13, 2012.

Victor R. Smith and Jeffrey I. Burry of Frost Van Den Boom & Smith, P.A., Bartow, for Petitioner.

Nathaniel White, Bartow, for Respondent.

KHOUZAM, Judge.

Michelle Rowe, the Former Wife, filed a petition for writ of certiorari to review the trial court's order granting a motion to compel discovery filed by Jose Rodriguez–Schmidt, the Former Husband. Because the trial court departed from the essential requirements of the law in granting the motion, we grant the petition.

After the parties' divorce was finalized in May 2007, the Former Husband filed a motion to modify his child support obligation, which was granted in January 2010. The Former Wife later discovered that the Former Husband had misstated his income in litigating the modification and successfully moved to set it aside in June 2011. As part of that litigation, the Former Wife sought attorney's fees under section 61.16, Florida Statutes (2011).

In litigating her entitlement to fees, the Former Wife complied with the Former Husband's request for her 2009 and 2010 tax returns but redacted most of the information because the returns were filed jointly with her current husband, a nonparty wanting to protect his financial privacy. The Former Husband filed a motion to compel the Former Wife to provide unredacted copies of these tax returns, arguing that her current husband waived any right to privacy he had by involving himself in the litigation.

After a hearing on October 14, 2011, the trial court granted the Former Husband's motion to compel, finding that the documents were relevant and the nonparty current husband waived his right to privacy. The Former Wife timely filed this petition seeking to quash the order, arguing that the decision lacked a required evidentiary basis. We agree.

A three-pronged test must be satisfied in order to grant certiorari relief: “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Certiorari relief is thus appropriate only where “a lower court has departed from the essential requirements of the law or when a lower court has acted in excess of its jurisdiction, and no appeal or direct method of reviewing the proceeding exists.” Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011).

“An order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal.” Rappaport v. Mercantile Bank, 17 So.3d 902, 905 (Fla. 2d DCA 2009); see also Borck v. Borck, 906 So.2d 1209, 1211 (Fla. 4th DCA 2005) (“Because the order requires financial information from [nonparties,] ... the petitioners have alleged irreparable harm in the invasion of their privacy rights.”). The order the Former Wife challenges grants the Former Husband's motion to compel unredacted copies of the Former Wife's 2009 and 2010 income tax returns filed jointly with her current husband, a nonparty to these proceedings. Therefore, a review on the merits is appropriate.

“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.” Borck, 906 So.2d at 1211. This is because “personal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari–Mutuel Wagering, 477 So.2d 544 (Fla.1985)). The burden to prove the information is relevant or reasonably calculated to lead to the discovery of admissible evidence is on the party seeking the information. Spry v. Prof'l Emp'r Plans, 985 So.2d 1187, 1188–89 (Fla. 1st DCA 2008).

Because of the strong public policy underlying this constitutional protection, “[t]he relevance of financial information should be determined only after an evidentiary hearing.” Id. at 1188–89. Accordingly, it has been held a departure from the essential requirements of the law where a “trial court ordered production of [nonparty] financial information without any evidentiary inquiry as to its relevance.” Borck, 906 So.2d at 1211;see also Spry, 985 So.2d at 1188 (“[T]he JCC departed from the essential requirements of law by ordering discovery without considering evidence as to its relevance.”).

Here, the trial court departed from the essential requirements of the law because it ordered production of a nonparty's financial information without considering any evidence regarding its relevance. A review of the transcript from the October...