Thomas v. Thomas, 90-2623
| Decision Date | 21 October 1991 |
| Docket Number | No. 90-2623,90-2623 |
| Parties | 16 Fla. L. Weekly D2712 Fredrick THOMAS, Appellant, v. Janell THOMAS, and the State of Florida, Department of Health and Rehabilitative Services, Appellees. |
| Court | Florida District Court of Appeals |
Appellant, Fredrick Thomas, seeks review of an order denying his supplemental petition for modification of his child support obligation. He contends that the trial court abused its discretion in finding no substantial change in circumstances so as to justify modification, in not granting his motions to strike and for rehearing filed in connection with the admission of a deposition taken post-hearing, and in failing to award him a reasonable attorney's fee. Because we conclude that the trial court erroneously admitted and relied on the post-hearing deposition, we reverse and remand without reaching the merits of the other two issues.
The facts pertinent to this appeal show that the final judgment of dissolution of marriage was entered on November 12, 1987. Appellee, Janell Thomas, was awarded primary residential custody of the parties' two minor children, and appellant was required to pay child support in the amount of $1,000 per month. Appellant first petitioned for modification of his child support obligation in December 1988. That petition was denied, and this court per curiam affirmed the order of denial. See Thomas v. Thomas, 559 So.2d 222 (Fla. 1st DCA 1990) (Thomas I ).
On December 8, 1989, appellant filed a second petition for modification, alleging a substantial change in circumstances had occurred in that he had lost his primary means of support and income, and that attempts to secure employment at the same level had been to no avail. At the hearing held on June 15, 1990, appellant testified regarding his unsuccessful attempts to secure employment at a level comparable to that which he had held with Blinder Robinson. He also presented evidence that his association with Blinder Robinson so tainted him in the brokerage industry that it was unlikely he would be able to secure employment with a major brokerage firm in the future. Appellant showed that each position he had held since his termination from Blinder Robinson had been lost or income had been limited due to factors beyond his control. As for his current position, appellant had been employed since January 1990 as an independent contractor in a financial consultant position. Because appellant had not yet developed a large client base, and because he was paid only commissions, he had not earned sufficient money in any month to cover his overhead expenses. In fact, appellant testified that he had borrowed $8,000 from the bank in the past month. After he had established himself, appellant believed he could earn approximately $2,500 per month, less overhead of approximately $1,800.
None of the above evidence was discredited, as appellee presented no witnesses in her behalf and conducted little, if any, cross-examination. Nonetheless, the trial court entered an order denying the modification petition based on findings that appellant was suppressing his earning ability and spending money to keep from showing any assets until the modification proceeding had been decided, and that he was capable of earning substantially more than when he signed the stipulation that was incorporated in the final judgment of dissolution. In so doing, the court's order specifically referred to appellant's testimony and the deposition of appellant's business partner, Elizabeth Akom, which was taken on July 16, 1990, approximately one month after the final hearing.
Akom's deposition revealed that she was a fifty-percent owner of North Florida Asset Management Corporation, which was established in 1988. Although appellant's current wife was the other half-owner, Akom stated that it was appellant, not his wife, who worked with her. The deposition further revealed that when Akom asked appellant in November 1989 why he did not own the shares, he told her that he could not show assets until after the child support case had been concluded. She also testified that the corporation reported debt that was appellant's own personal debt and that appellant used the corporate account as his own personal checking account. When she discussed why appellant did not bring in business, she stated he was adamant about not showing any new accounts or income until after the child support case.
Upon receipt of a copy of the final order, appellant filed a motion to strike Akom's deposition. He alleged that appellee had taken the deposition post-hearing, failed to give him notice of the taking or the filing of the deposition, and failed to provide him with a copy thereof. Appellant also moved for reconsideration/rehearing, contending that the trial court improperly relied on the Akom deposition.
Appellee's trial counsel 1 admitted that he had inadvertently failed to give notice of the taking of the deposition to appellant, but argued that the court did not need to rely on the deposition, because there was ample evidence justifying the denial of appellant's petition. The trial court thereafter denied appellant's motions, stating that even without the Akom deposition there was sufficient evidence to show that appellant had the current ability to pay the required child support. We cannot agree.
In regard to the trial court's reliance on the Akom deposition, we note initially that the proper standard of review for orders denying motions to strike and for rehearing is abuse of discretion. Cem-A-Care of Fla., Inc. v. Automated Planning Sys., 442 So.2d 1048 (Fla. 4th DCA 1983); Monarch Cruise Line, Inc. v. Leisure Time Tours, Inc., 456 So.2d 1278 (Fla. 3d DCA 1984).
Florida Rule of Civil Procedure 1.310 provides, in pertinent part, as follows:
(b)(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action....
* * *
(f)(3) A copy of a deposition may be filed only:
(A) By a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition shall be given to all parties unless notice is waived. A party filing the deposition shall furnish a copy of the deposition or the part being filed to other parties unless the party already has a copy.
In the instant case, it is undisputed that appellee's trial attorney failed to give appellant notice of either the taking of the deposition or the filing thereof, and that he likewise failed to provide appellant with a copy. Consequently, it is clear that appellee violated the above procedural rule, and the trial court abused its discretion by denying appellant's motions to strike...
To continue reading
Request your trial
-
Evans v. Evans
...support or the needs of the children for same. Frumkes v. Frumkes, 349 So.2d 823, 824 (Fla. 3d DCA 1977). Accord Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991); League v. Lassiter, 536 So.2d 365 (Fla. 1st DCA 1988); Alfrey v. Alfrey, 553 So.2d 393 (Fla. 4th DCA 1989) (on rehearing......
-
Pitts v. Pitts
...material, involuntary, and permanent in nature. Manning v. Manning, 600 So.2d 1274, 1275 (Fla. 1st DCA 1992); Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991); Conklin v. Conklin, 551 So.2d 1279 (Fla. 4th DCA 1989). The clean hands doctrine precludes a court from relieving a party o......
-
Hirsch v. Hirsch, 94-48
...to reduce the father's child support obligation. See Leone v. Weed, 474 So.2d 401, 404 (Fla. 4th DCA 1985). See also Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991); Waskin v. Waskin, 484 So.2d 1277, 1277-78 (Fla. 3d DCA), rev. denied, 494 So.2d 1153 We recognize, further, that the......
-
Manning v. Manning
...circumstances be permanent to justify a child support reduction is now settled Florida decisional law. See, e.g., Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991) (on motion for clarification); Conklin v. Conklin, 551 So.2d 1279 (Fla. 4th DCA 1989); O'Brien v. O'Brien, 407 So.2d 374......
-
Florida family law rules of procedure
...1989). Thomas v. Thomas Error for trial court to rely upon deposition taken without notice and filed without notice. Thomas v. Thomas , 589 So.2d 944 (Fla. 1st DCA 1991). Travieso v. Golden Where videotape depositions are used as evidence before the court, a court reporter must make a steno......
-
Documentary evidence
...to all parties and filed without notice to all parties, trial court erred in relying upon the deposition at hearing. Thomas v. Thomas , 589 So.2d 944 (Fla. 1st DCA 1991). Robert v. W.R. Grace & Co. Where trial court ordered that second deposition of plaintiff could not be taken and plaintif......
-
Depositon potpourri or helpful hints to avoid deposition fatigue.
...procedural rule, and the trial court abused its discretion by denying appellants' motions to strike and for rehearing. Thomas v. Thomas, 589 So. 2d 944, 947 (Fla. 1st DCA 1991); Fla. R. Civ. P. 1.080(a), 1.310(f)(3); Rule 4-3.4, Rules Reg. The Florida Bar; and Canon 3(B)(2), Code of Judicia......