Rules Fam. Law R. Pro Flashcards
Part 1
RULE 12.010. (a) SCOPE, PURPOSE, AND TITLE Scope.
- (1)These rules apply to all actions concerning family matters, including injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking, except as otherwise provided by the Florida Rules of Juvenile Procedure or the Florida Probate Rules.
- “Family matters,” “family law matters,” or “family law cases” as used within these rules include, but are not limited to, matters arising from dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, an action involving a parenting plan for a minor child or children (except as otherwise provided by the Florida Rules of Juvenile Procedure), proceedings for temporary or concurrent custody of minor children by extended family, adoption, proceedings for emancipation of a minor, declaratory judgment actions related to premarital, marital, or postmarital agreements (except as otherwise provided, when applicable, by the Florida Probate Rules), injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking, and all proceedings for modification, enforcement, and civil contempt of these actions.
RULE 12.025 APPLICABILITY OF RULES OF JUDICIAL ADMINISTRATION
(a) Electronic Filing. Florida Rules of Judicial Administration 2.520 and 2.525 are applicable in all family law matters except as otherwise provided in these rules.
RULE 12.040. ATTORNEYS
(a) Limited Appearance. An attorney of record for a party, in a family law matter governed by these rules, shall be the attorney of record throughout the same family law matter, unless at the time of appearance the attorney files a notice, signed by the party, specifically limiting the attorney’s appearance only to the particular proceeding or matter in which the attorney appears.
(e) Notice of Limited Appearance. Any pleading or other document filed by a limited appearance attorney shall state in bold type on the signature page of that pleading or other document: “Attorney for [Petitioner] [Respondent] [attorney’s address, e-mail address(es), and telephone number] for the limited purpose of [matter or proceeding]” to be followed by the name of the petitioner or respondent represented and the current address and telephone number of that party. If the party designates e-mail address(es) for service on and by that party, the party’s e-mail address(es) shall also be included.
(f) Service. During the attorney’s limited appearance, all pleadings or other documents and all notices of hearing shall be served upon both the attorney and the party. If the attorney receives notice of a hearing that is not within the scope of the limited representation, the attorney shall notify the court and the opposing party that the attorney will not attend the court proceeding or hearing because it is outside the scope of the representation.
RULE 12.060. TRANSFERS OF ACTIONS
(a) Transfers of Courts. If it should appear at any time that an action is pending in the wrong court of any county, it may be transferred to the proper court within the county by the same method as provided by Florida law.
(b) Wrong Venue. When any action is filed placing venue in the wrong county, the court may transfer the action in the manner provided by Florida law to the proper court in any county in which it might have been brought in accordance with the venue statutes. When the venue might have been placed in 2 or more counties, the person bringing the action may select the county to which the action is transferred. If no such selection is made, the matter shall be determined by the court.
(c) Method. The service charge of the clerk of the court to which an action is transferred under this rule must be paid by the party who commenced the action within 30 days from the date the order of transfer is entered, subject to taxation as provided by law when the action is determined. If the service charge is not paid within the 30 days, the action may be dismissed without prejudice by the court that entered the order of transfer.
RULE 12.070. (a) PROCESS - Part 1
- Service; By Whom Made. Service of process may be made by an officer authorized by law to serve process, but the court may appoint any competent person not interested in the action to serve the process. When so appointed, the person serving process must make proof of service by affidavit promptly and in any event within the time during which the person served must respond to the process. Failure to make proof of service will not affect the validity of the service. When any process is returned not executed or returned improperly executed for any respondent, the party causing its issuance must be entitled to such additional process against the unserved party as is required to effect service.
- Service; Numerous Respondents. If there is more than 1 respondent, the clerk or judge must issue as many writs of process against the several respondents as may be directed by the petitioner or the petitioner’s attorney.
- Service by Publication. Service of process by publication may be made as provided by statute.
- Constructive Service.
o For constructive service of process on the legal father in any case or proceeding to establish paternity which would result in termination of the legal father’s parental rights, the petitioner must file an affidavit of diligent search and inquiry that conforms with Florida Family Law Rules of Procedure Form 12.913(c). If the legal father cannot be located, he must be served with process by publication in the manner provided by chapter 49, Florida Statutes. The notice must be published in the county where the legal father was last known to have 25 resided. The clerk of the circuit court must mail a copy of the notice to the legal father at his last known address.
o For constructive service of process in any case or proceeding involving parental responsibility, custody, or time-sharing with a minor child, the petitioner must file an affidavit of diligent search and inquiry that conforms with Florida Family Law Rules of Procedure Form 12.913(c). If the responding party cannot be located, the party must be served with process by publication in the manner provided by chapter 49, Florida Statutes. The clerk of the circuit court must mail a copy of the notice to the party’s last known address.
o For constructive service of process in all other cases, an affidavit of diligent search and inquiry in substantial conformity with Florida Family Law Rules of Procedure Form 12.913(b), must be filed.
RULE 12.070. (a) PROCESS - Part 2
*Domestic, Repeat, Dating, and Sexual Violence, and Stalking Proceedings. This rule does not govern service of process in proceedings for injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking.
*Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the initial pleading must be delivered to the party on whom service is made. The date and hour of service must be endorsed on the original process and all copies of it by the person making the service. The party seeking to effect personal service must furnish the person making service with the necessary copies. When the service is made by publication, copies of the initial pleadings must be furnished to the clerk and mailed by the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement
*(j) Pleading Basis. When service of process is to be made under statutes authorizing service on nonresidents of Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.
RULE 12.070. (a) PROCESS - Part 3
- (k) Service of Process by Mail. A respondent may accept service of process by mail.
o (1) Acceptance of service of a petition by mail does not waive any objection to the venue or to the jurisdiction of the court over the person of the respondent.
o (2) A petitioner may notify any respondent of the commencement of the action and request that the respondent waive service of a summons. The notice and request must:
(A) be in writing and be addressed directly to the respondent, if an individual, or to an officer or managing or general agent of the respondent, or other agent authorized by appointment or law to receive service of process;
(B) be dispatched by certified mail, return receipt requested;
(C) be accompanied by a copy of the petition and must identify the court in which it has been filed;
(D) inform the respondent of the consequences of compliance and of failure to comply with the request;
(E) state the date on which the request is sent;
(F) allow the respondent 20 days from the date on which the request is received to return the waiver, or, if the address of the respondent is outside of the United States, 30 days from the date on which it is received to return the waiver; and
(G) provide the respondent with an extra copy of the notice and request, including the waiver, as well as a prepaid means of compliance in writing.
(3) If a respondent fails to comply with a request for waiver within the time provided herein, the court may impose the costs subsequently incurred in effecting service on the respondent unless good cause for the failure is shown.
(4) A respondent who, before being served with process, timely returns a waiver so requested is not required to respond to the petition until 60 days after the date the respondent received the request for waiver of service. For purposes of computing any time prescribed or allowed by these rules, service of process will be deemed effected 20 days before the time required to respond to the petition.
(5) When the petitioner files a waiver of service with the court, the action must proceed, except as provided in subdivision (k)(4) above, as if a summons and petition had been served at the time of filing the waiver, and no further proof of service shall be required.
(l) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a respondent within 120 days after filing of the initial pleading directed to that respondent, the court, on its own initiative after notice or on motion, must direct that service be effected within a specified time or must dismiss the action without prejudice or drop that respondent as a party; provided that if the petitioner shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended petition is filed, the 120-day period for service of amended petitions on the new party or parties must begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 12.420(a)(1).
RULE 12.080. (1) SERVICE OF PLEADINGS AND FILING OF DOCUMENTS
(1) Family Law Actions Generally. Service of pleadings and documents after commencement of all family law actions, except proceedings for injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking is as set forth in Florida Rule of Judicial Administration 2.516, except that rule 2.516 also applies to service on the party during the attorney’s limited appearance as provided in rule 12.040(f) and must be expanded as set forth in subdivisions (b) and (c) to include additional requirements for service of recommended orders and for service on defaulted parties.
(2) Domestic, Repeat, Dating, and Sexual Violence, and Stalking Actions. Service of pleadings and documents regarding proceedings for injunctions against domestic, repeat, dating, and sexual violence, and stalking is governed by rule 12.610, where it is in conflict with this rule.
(b) Service and Preparation of Orders and Judgments. A copy of all orders or judgments involving family law matters, except proceedings for injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking, must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. The court may require that recommended orders, orders, or judgments be prepared by a party. If the court requires that a party prepare the recommended order, order, or judgment, the party must furnish the court with stamped, addressed envelopes to all parties for service of the recommended order, order, or judgment. The court may also require that any proposed recommended order, order, or judgment that is prepared by a party be furnished to all parties no less than 24 hours before submission to the court of the recommended order, order, or judgment.
(c) Defaulted Parties. No service need be made on parties against whom a default has been entered, except that:
(1) Pleadings asserting new or additional claims against defaulted parties must be served in the manner provided for service of summons contained in rule 12.070.
(2) Notice of final hearings or trials and court orders must be served on defaulted parties in the manner provided for service of pleadings and documents contained in Florida Rule of Judicial Administration 2.516.
(3) Final judgments must be served on defaulted parties as set forth in Florida Rule of Judicial Administration 2.516(h).
RULE 12.090. TIME Computation.
(a) Computation of time shall be governed by Florida Rule of Judicial Administration 2.514.
(b) (b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if a request is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) on motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect. However, the court may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment, making a motion for relief from a judgment under rule 12.540(b), taking an appeal or filing a petition for certiorari, or making a motion for a directed verdict.
(c) For Motions. A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing on the written motion must be served a reasonable time before the time specified for the hearing.
RULE 12.100. (a) PLEADINGS AND MOTIONS
(a) Pleadings. There must be a petition or, when so designated by a statute or rule, a complaint, and a response or answer to it; a response or answer to a counterclaim denominated as such; an answer to a crossclaim if the answer contains a crossclaim; a third-party petition if a person who was not an original party is summoned as a third-party respondent or defendant; and a third-party response or answer if a third-party complaint is served. If a response or answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. In a post-judgment case, there are a supplemental petition and a response or an answer and a countersupplemental petition and a response or an answer to it, if applicable. In those cases in which there is a related civil action that is not otherwise specifically addressed in the Family Law Rules of Procedure, then the Rules of Civil Procedure governs those pleadings. No other pleadings are allowed unless otherwise provided by law.
(b) Motions. An application to the court for an order must be by motion which must be made in writing unless made during a hearing or trial, must state with particularity the grounds therefor, and must set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All notices of hearings must specify each motion or other matter to be heard.
(3) A cover sheet for family court cases (form 12.928) must be completed and filed with the clerk at the time a complaint or petition is filed by the party initiating the action. If the cover sheet is not filed, the clerk must accept the complaint or petition for filing; but all proceedings in the action must be abated until a properly executed cover sheet is completed and filed. The clerk must complete the cover sheet for a party appearing pro se.
(4) A final disposition form (form 12.999) must be filed with the clerk at the time of the filing of the order or judgment which disposes of the action. If the action is settled without a court order or judgment being entered, or dismissed by the parties, the plaintiff or petitioner must immediately file a final disposition form with the clerk. The clerk must complete the final disposition form for a party appearing pro se, or when the action is dismissed by court order for lack of prosecution under rule 12.420(d).
RULE 12.105. (a) SIMPLIFIED DISSOLUTION PROCEDURE
- (a) Requirements for Use. The parties to the dissolution may file a petition for simplified dissolution if they certify under oath that
o (1) the parties do not have any minor or dependent children together, the wife does not have any minor or dependent children who were born during the marriage, and the wife is not now pregnant;
o (2) the parties have made a satisfactory division of their property and have agreed as to payment of their joint obligations; and
o (3) the other facts set forth in Florida Family Law Rules of Procedure Form 12.901(a) (Petition for Simplified Dissolution of Marriage) are true.
(b) Consideration by Court. The clerk shall submit the petition to the court. The court shall consider the cause expeditiously. The parties shall appear before the court in every case and, if the court so directs, testify. The court, after examination of the petition and personal appearance of the parties, shall enter a judgment granting the dissolution (Florida Family Law Rules of Procedure Form 12.990(a)) if the requirements of this rule have been established and there has been compliance with the waiting period required by statute.
RULE 12.110. (a) GENERAL RULES OF PLEADING
o (a) Forms of Pleadings. Forms of action and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.
o (b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original petition, counterpetition, counterclaim, crossclaim, or thirdparty claim, must state a cause of action and must contain
(1) a short and plain statement of the grounds on which the court’s jurisdiction depends, unless the court already has jurisdiction and the pleading needs no new grounds of jurisdiction to support it,
(2) a short and plain statement of both the relief requested and the ultimate facts showing that the pleader is entitled to that relief, and
(3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every petition shall be considered to pray for general relief.
o (c)The Answer. In the answer a pleader must state in short and plain terms the pleader’s answers to each claim asserted and must admit or deny the allegations on which the adverse party relies. If the pleader is without knowledge, he or she must so state and such statement operates as a denial. Denial must fairly meet the substance of the allegations denied. When a pleader intends in good faith to deny only a part of an allegation, the pleader must specify so much of it as is true and must deny the remainder. Unless the pleader intends in good faith to controvert all of the allegations of the preceding pleading, the pleader may make denials as specific denials of designated allegations or may generally deny all of the allegations except such designated allegations as the pleader expressly admits. However, when the pleader does so intend to controvert all of its allegations, including allegations of the grounds on which the court’s jurisdiction depends, the pleader may do so by general denial.
o (d) Affirmative Defenses. In the answer a party must state affirmatively any matter constituting an avoidance or affirmative defense or any other affirmative defense as allowed by law. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, must treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 12.140, provided this shall not limit amendments under rule 12.190 even if such grounds are sustained.
o (e) Effect of Failure to Deny. Allegations in a pleading to which a responsive pleading is required, other than those as to the relief requested, are admitted when not denied in the responsive pleading. Allegations in a pleading to which no responsive pleading is required or permitted must be taken as denied or avoided.
o (h) Subsequent Pleadings. When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment must be designated a supplemental petition. The action must then proceed in the same manner and time as though the supplemental petition were the initial pleading in the action, including the issuance of any needed process. Proceedings to modify a final judgment must be initiated only under this subdivision and not by motion. This subdivision does not apply to proceedings that may be initiated by motion under these rules.
RULE 12.120. PLEADING SPECIAL MATTERS
o (a) Capacity. Unless required by statute, it is not necessary to allege the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of 37 persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party must specifically allege the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party must do so by specific negative allegation(s) which must include such supporting particulars as are peculiarly within the pleader’s knowledge.
o (b) Fraud; Mistake; Condition of the Mind. In all allegations of fraud or mistake, the circumstances constituting fraud or mistake must be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be alleged generally.
RULE 12.140. RESPONSES- When Presented.
o (a) When Presented.
(1) Unless a different time is prescribed in a statute of Florida, a respondent must serve a response within 20 days after service of original process and the initial pleading on the respondent, or not later than the date fixed in a notice by publication. The petitioner must serve a response to a counterpetition within 20 days after service of the counterpetition. If a reply is required, the reply must be served within 20 days after service of the response. A party served with a pleading stating a crosspetition against that party must serve a response to it within 20 days after service on that party.
(2) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings must be served within 10 days after notice of the court’s action or, if the court grants a motion for a more definite statement, the responsive pleadings must be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.
(3) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement must be served within 10 days after notice of the court’s action. Responses to the pleadings or statements must be served within 10 days of service of such pleadings or statements.
RULE 12.140. RESPONSES- (b) How Presented
lack of jurisdiction over the subject matter;
lack of jurisdiction over the person;
improper venue; insufficiency of process;
insufficiency of service of process;
failure to state a cause of action;
and failure to join indispensable parties.
A motion making any of these responses must be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated responses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No response or objection is waived by being joined with other responses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense within 20 days after service of the answer or reply.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.
(d) Preliminary Hearings. The responses in subdivisions (b)(1)–(b)(7), whether made in a pleading or by motion, and the motion for judgment in subdivision (c) must be heard and determined before trial on application of any party unless the court orders that the hearing and determination will be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
(f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.
(H) Waiver of Responses.
(1) A party waives all responses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
(2) The responses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.
RULE 12.170. COUNTERPETITTIONS AND CROSSCLAIMS
(a) Compulsory Counterpetitions. A pleading must state as a counterpetition any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon that party’s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterpetition under this rule.
(b) Permissive Counterpetition. A pleading may state as a counterpetition any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(h) Additional Parties May Be Brought In. When the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or crossclaim, they must be named in the counterpetition or crossclaim and be served with process and will be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action. Rules 12.250(b) and (c) apply to parties brought in under this subdivision.
RULE 12.180. THIRD-PARTY PRACTICE
(a) When Available. At any time after commencement of the action a respondent may have a summons and petition served on a person not a party to the action who is or may be liable to the respondent for all or part of the petitioner’s claim against the respondent, and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the petitioner’s claim. The respondent need not obtain leave of court if the respondent files the third-party complaint not later than 20 days after the respondent serves the original answer. Otherwise, the respondent must obtain leave on motion and notice to all parties to the action. The person served with the summons and third-party complaint, the third-party respondent, must make defenses to the respondent’s claim as provided in rules 12.110 and 12.140 and counterpetitions against the respondent and crossclaims against other third-party respondents as provided in rule 12.170. The third-party respondent may assert against the petitioner any defenses that the respondent has to the petitioner’s claim.
(b) Additional Claims. The third-party respondent may also assert any claim against the petitioner arising out of the transaction or occurrence that is the subject matter of the petitioner’s claim against the respondent. The petitioner may assert any claim against the third-party respondent arising out of the transaction or occurrence that is the subject matter of the petitioner’s claim against the respondent, and the third-party respondent must assert a defense as provided in rules 12.110 and 12.140 and counterpetitions and crossclaims as provided in rule 12.170. Any party may move to strike the third-party claim or for its severance or separate trial. A third-party respondent may proceed under this rule against any person not a party to the action who is or may be liable to the third-party respondent for all or part of the claim made in the action against the third-party respondent.
(c) When Petitioner May Bring in Third Party. When a counterpetition is asserted against the petitioner, the petitioner may bring in a third party under circumstances which would entitle a respondent to do so under this rule.
RULE 12.190. AMENDED PLEADINGS
(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. 44 Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party must attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party must plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
(b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they will be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend will not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and must do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment must relate back to the date of the original pleading.
RULE 12.200. (a) CASE MANAGEMENT AND PRETRIAL CONFERENCES
(a) Case Management Conference.
o (1) Family Law Proceedings, Generally. A case management conference may be ordered by the court at any time on the court’s initiative. A party may request a case management conference 30 days after service of a petition or complaint. At such a conference the court may:
(A) schedule or reschedule the service of motions, pleadings, and other documents;
(B) set or reset the time of trials, subject to rule 12.440;
(C) coordinate the progress of the action if complex litigation factors are present;
(D) limit, schedule, order, or expedite discovery;
(E) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
(F) exclusion of evidence; schedule or hear motions related to admission or
(G) pursue the possibilities of settlement;
(H) require filing of preliminary stipulations if issues can be narrowed;
(I) refer issues to a magistrate for findings of fact, if consent is obtained as provided in rules 12.490 and 12.492 and if no significant history of domestic, repeat, dating, or sexual violence, or stalking that would compromise the process is involved in the case;
(J) refer the parties to mediation if no significant history of domestic, repeat, dating, or sexual violence, or stalking that would compromise the mediation process is involved in the case and consider allocation of expenses related to the referral; or refer the parties to counseling if no significant history of domestic, repeat, dating, or sexual violence or stalking that would compromise the process is involved in the case and consider allocation of expenses related to the referral;
(K) coordinate voluntary binding arbitration consistent with Florida law if no significant history of domestic, repeat, dating, or sexual violence or stalking that would compromise the process is involved in the case;
(L) appoint court experts and allocate the expenses for the appointments
(M) refer the cause for a parenting plan recommendation, social investigation and study, home study, or psychological evaluation and allocate the initial expense for that study;
(N) appoint an attorney or guardian ad litem for a minor child or children if required and allocate the expense of the appointment;
(O) schedule other conferences or determine other matters that may aid in the disposition of the action; and
(P) consider any agreements, objections, or form of production of electronically stored information.
(b) Pretrial Conference.
After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:
o (1) proposed stipulations and the simplification of the issues;
o (2) the necessity or desirability of amendments to the pleadings;
o (3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
o (4) the limitation of the number of expert witnesses;
o (5) and any matters permitted under subdivision (a) of this rule.
(c) Notice. Reasonable notice shall be given for a case management conference, and 20 days’ notice shall be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference shall be specified in the order. Orders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court.
(d) Case Management and Pretrial Order. The court shall make an order reciting the action taken at a conference and any stipulations made. The order shall control the subsequent course of the action unless modified to prevent injustice.
RULE 12.210. (a) PARTIES
(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. All persons having an interest in any subject of the action may be joined. Any person may at any time be made a party if that person’s presence is necessary or proper for a complete determination of the cause.
(b) Minors, Incapacitated, or Incompetent Persons. When a minor, incapacitated, or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may appear in the action on behalf of the minor, incapacitated, or incompetent person. A minor, incapacitated, or incompetent person who does not have a duly appointed representative may appear by next friend or by a guardian ad litem. The court shall have the discretion to appoint a guardian ad litem and/or attorney ad litem for a minor, incapacitated, or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor, incapacitated, or incompetent person.
RULE 12.280. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by 1 or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter on land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (d), the frequency of use of these methods is not limited, except as provided in rules 12.200, 12.340, and 12.370.
(b) Redaction of Personal Information. All filings of discovery information must comply with Florida Rule of Judicial Administration 2.425. The court has the authority to impose sanctions for violation of this rule.
(c) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
o (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
o (5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (c)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(A) (i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 12.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
* a. The scope of employment in the pending case and the compensation for such service.
* b. The expert’s general litigation experience, including the percentage of work performed for petitioners and respondents.
* c. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
* d. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert must not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. On motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions under subdivision (c)(5)(C) concerning fees and expenses as the court may deem appropriate.
RULE 12.280. GENERAL PROVISIONS GOVERNING DISCOVERY
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 12.360(b) or on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (c)(5)(A) and (c)(5)(B); and concerning discovery from an expert obtained under subdivision (c)(5)(A) the court may require, and concerning discovery obtained under subdivision (c)(5)(B) must require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(D) As used in these rules an expert shall be an expert witness as defined in rule 12.390.
(6) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party must make the claim expressly and must describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(d) Protective Orders. On motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that the discovery be conducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 12.380(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Limitations on Discovery of Electronically Stored Information.
(1) A person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost. On motion to compel discovery or for a protective order, the person from whom the discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sources or in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking discovery.
(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that 56
* (A) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or
* (B) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(g) Supplementing of Responses. A party is under a duty to amend a prior response or disclosure if the party: (1) obtains information or otherwise determines that the prior response or disclosure was incorrect when made; or (2) obtains information or otherwise determines that the prior response or disclosure, although correct when made, is no longer materially true or complete.
RULE 12.281. (a) INADVERTENT DISCLOSURE OF PRIVILEGED MATERIALS
(a) Assertion of Privilege as to Inadvertently Disclosed Materials. Any party, person, or entity, after inadvertent disclosure of any materials under these rules, may thereafter assert any privilege recognized by law as to those materials. This right exists without regard to whether the disclosure was made under formal demand or informal request. To assert the privilege, the party, person, or entity must, within 10 days of actually discovering the inadvertent disclosure, serve written notice of the assertion of privilege on the party to whom the materials were disclosed. The notice must specify with particularity the materials as to which the privilege is asserted, the nature of the privilege asserted, and the date on which the inadvertent disclosure was actually discovered.
(b) Duty of the Party Receiving Notice of an Assertion of Privilege. A party receiving notice of an assertion of privilege under subdivision (a) must promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material. The party receiving the notice must also promptly notify any other party, person, or entity to whom it has disclosed the materials of the fact that the notice has been served and of the effect of this rule. That party must also take reasonable steps to retrieve the materials disclosed. Nothing herein affects any obligation under Rules Regulating the Florida Bar 4-4.4(b).
(c) Right to Challenge Assertion of Privilege. Any party receiving a notice made under subdivision (a) has the right to challenge the assertion of privilege. The grounds for the challenge may include, but are not limited to, the following:
o (1) The materials in question are not privileged.
o (2) The disclosing party, person, or entity lacks standing to assert
o (3) The disclosing party, person, or entity has failed to serve timely notice under this rule.
o (4) The circumstances surrounding the production or disclosure of the materials warrant a finding that the disclosing party, person, or entity has waived its assertion that the material is protected by a privilege.
Any party seeking to challenge the assertion of privilege must do so by serving notice of its challenge on the party, person, or entity asserting the privilege. Notice of the challenge must be served within 20 days of service of the original notice given by the disclosing party, person, or entity. The notice of the recipient’s challenge must specify the grounds for the challenge. Failure to serve timely notice of challenge is a waiver of the right to challenge.
RULE 12.285. (a) MANDATORY DISCLOSURE - Part 1
Application. (1) Scope. This rule applies to all proceedings within the scope of these rules except proceedings involving adoption, simplified dissolution, enforcement, contempt, injunctions for protection against domestic, repeat, dating, or sexual violence, or stalking, and uncontested dissolutions when the respondent is served by publication and does not file an answer. Additionally, no financial affidavit or other documents shall be required under this rule from a party seeking attorneys’ fees, suit money, or costs, if the basis for the request is solely under section 57.105, Florida Statutes, or any successor statute. Except for the provisions 59 as to financial affidavits and child support guidelines worksheets, any portion of this rule may be modified by order of the court or agreement of the parties.
(b) Time for Production of Documents. (1) Temporary Financial Relief Hearings. Any document required under this rule in any temporary financial relief proceeding must be served on the other party for inspection and copying as follows. (A) The party seeking relief must serve the required documents on the other party with the notice of temporary financial hearing, unless the documents have been served under subdivision (b)(2). (B) The responding party must serve the required documents on the party seeking relief on or before 5:00 p.m., 2 business days before the day of the temporary financial relief hearing if served by delivery or 7 days before the day of the temporary financial relief hearing if served by mail or e-mail, unless the documents have been received previously by the party seeking relief under subdivision (b)(2). A responding party must be given no less than 12 days to serve the documents required under this rule, unless otherwise ordered by the court. If the 45-day period for exchange of documents provided for in subdivision (b)(2) will occur before the expiration of the 12 days, the provisions of subdivision (b)(2) control.
(2) Initial and Supplemental Proceedings. Any document required under this rule for any initial or supplemental proceeding must be served on the other party for inspection and copying within 45 days of service of the initial pleading on the respondent.
(c) Exemption from Requirement to File and Serve Financial Affidavit. The parties are not required to file and serve a financial affidavit under subdivisions (d) and (e) if they are seeking a simplified dissolution of marriage under rule 12.105, they have no minor children, have no support issues, and have filed a written settlement agreement disposing of all financial issues, or if the court lacks jurisdiction to determine any financial issues.
RULE 12.285. (a) MANDATORY DISCLOSURE - Part 2
(d) Disclosure Requirements for Temporary Financial Relief. In any proceeding for temporary financial relief heard within 45 days of the service of the initial pleading or within any extension of the time for complying with mandatory disclosure granted by the court or agreed to by the parties, the following documents must be served on the other party: (1) A financial affidavit in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if the party’s gross annual income is equal to or more than $50,000. This requirement cannot be waived by the parties. The affidavit must also be filed with the court. (2) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past year. A party may file a transcript of the tax return as provided by Internal Revenue Service Form 4506 T in lieu of his or her individual federal income tax return for purposes of a temporary hearing. (3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared. (4) Pay stubs or other evidence of earned income for the 3 months before service of the financial affidavit.
(e) Parties’ Disclosure Requirements for Initial or Supplemental Proceedings. A party must serve the following documents in any proceeding for an initial or supplemental request for permanent financial relief, including, but not limited to, a request for child support, alimony, equitable distribution of assets or debts, or attorneys’ fees, suit money, or costs:
(list of all MD docs)
(f) Duty to Supplement Disclosure; Amended Financial Affidavit. (1) Parties have a continuing duty to supplement documents described in this rule, including financial affidavits, whenever a material change in their financial status occurs. (2) If an amended financial affidavit or an amendment to a financial affidavit is filed, the amending party must also serve any subsequently discovered or acquired documents supporting the amendments to the financial affidavit.
Sanctions. Any document to be produced under this rule that is served on the opposing party fewer than 24 hours before a nonfinal hearing or in violation of the court’s pretrial order shall not be admissible in evidence at that hearing unless the court finds good cause for the delay. In addition, the court may impose other sanctions authorized by rule 12.380 as may be equitable under the circumstances. The court may also impose sanctions upon the offending lawyer in lieu of imposing sanctions on a party. (h) Extensions of Time for Complying with Mandatory Disclosure. By agreement of the parties, the time for complying with mandatory disclosure may be extended. Either party may also file, at least 5 days before the due date, a motion to enlarge the time for complying with mandatory disclosure. The court must grant the request for good cause shown.
(h) Objections to Mandatory Automatic Disclosure. Objections to the mandatory automatic disclosure required by this rule shall be served in writing at least 5 days before the due date for the disclosure or the objections shall be deemed waived. The filing of a timely objection, with a notice of hearing on the objection, automatically stays mandatory disclosure for those matters within the scope of the objection. For good cause shown, the court may extend the time for the filing of an objection or permit the filing of an otherwise untimely objection. The court must impose sanctions for the filing of meritless or frivolous objections.
RULE 12.287. FINANCIAL AFFIDAVITS IN ENFORCEMENT AND CONTEMPT PROCEEDINGS
Any party in an enforcement or contempt proceeding may serve upon any other party a written request to serve a financial affidavit if the other party’s financial circumstances are relevant in the proceeding. The party to whom the request is made shall serve the requested financial affidavit and file a notice of compliance within 10 days after the service of the written request. The court may allow a shorter or longer time. The financial affidavit shall be in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b) (Short Form), all sections of which shall be completed.
RULE 12.290. (a) DEPOSITIONS BEFORE ACTION OR PENDING APPEAL- Part 1
(A) Before Action.
(1) Petition. A person who desires to perpetuate that person’s own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition must:
o (A) be titled in the name of the petitioner; and
o (B) show:
(i) that the petitioner expects to be a party to an action cognizable in a court of Florida, but is presently unable to bring it or cause it to be brought,
(ii) the subject matter of the expected action and the petitioner’s interest in it,
(iii) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it,
(iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and
(v) the names and addresses of the persons to be examined and the substance of the testimony that the petitioner expects to elicit from each; and must ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition for the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner must serve a notice on each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place named therein for an order described in the petition. At least 20 days before the date of hearing the notice must be served either within or without the county in the manner provided by law for service of summons, but if such service cannot with due diligence be made on any expected adverse party named in the petition, the court may make an order for service by publication or otherwise, and must appoint an attorney for persons not served in the manner provided by law for service of summons who will represent them, and if they are not otherwise represented, will cross-examine the deponent.
RULE 12.290. (a) DEPOSITIONS BEFORE ACTION OR PENDING APPEAL- Part 2
(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it must make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the deposition shall be taken upon oral examination or written interrogatories. The deposition may then be taken in accordance with these rules and the court may make orders in accordance with the requirements of these rules. For the purpose of applying these rules to depositions for perpetuating testimony, each reference to the court in which the action is pending shall be deemed to refer to the court in which the petition for deposition was filed.
(4) Use of Deposition. A deposition taken under this rule may be used in any action involving the same subject matter subsequently brought in any court in accordance with rule 12.330. (b) Pending Appeal. If an appeal has been taken from a judgment of any
(b) Pending Appeal. If an appeal has been taken from a judgment of any court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion for leave to take the deposition on the same notice and service as if the action was pending in the court. The motion must show (1) the names and addresses of persons to be examined and the substance of the testimony which the movant expects to elicit from each, and (2) the reason for perpetuating 68 their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay in justice, it may make an order allowing the deposition to be taken and may make orders of the character provided for by these rules, and thereupon the deposition may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the court.
RULE 12.300. (a) PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(a) Persons Authorized. Depositions may be taken before any notary public or judicial officer or before any officer authorized by the statutes of Florida to take acknowledgments or proof of executions of deeds or by any person appointed by the court in which the action is pending.
(b) In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of Florida or of the United States, (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter of request. A commission or a letter of request must be issued on application and notice and on terms that are just and appropriate.
RULE 12.310. (a) DEPOSITIONS UPON ORAL EXAMINATION- Part 1
(a) When Depositions May Be Taken. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the petitioner seeks to take a deposition within 30 days after service of the process and initial pleading on any respondent, except that leave is not required (1) if a respondent has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2). The attendance of witnesses may be compelled by subpoena as provided in rule 12.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(b) Notice; Method of Taking; Production at Deposition.
o (1) A party desiring to take the deposition of any person upon oral examination must give reasonable notice in writing to every other party to the action. The notice must state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena must be attached to or included in the notice.
o (2) Leave of court is not required for the taking of a deposition by petitioner if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken before expiration of the 30-day period under subdivision (a). If a party shows that when served with notice under this subdivision that party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against that party.
o (3) For cause shown the court may enlarge or shorten the time for taking the deposition.
o (4) Any deposition may be recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.
A. Notice. A party intending to videotape a deposition must state in the notice that the deposition is to be videotaped and must give the name and address of the operator. Any subpoena served on the person to be examined must state the method or methods for recording the testimony.
(B) Court Reporter. Videotaped depositions must also be stenographically recorded by a certified court reporter, unless all parties agree otherwise.
(C) Procedure. At the beginning of the deposition, the officer before whom it is taken must, on camera: (i) identify the style of the action, (ii) state the date, and (iii) swear in the witness.
(D) Custody of Tape and Copies. The attorney for the party requesting the videotaping of the deposition must take custody of and be responsible for the safeguarding of the videotape, must permit the viewing of it by the opposing party, and, if requested, must provide a copy of the videotape at the expense of the party requesting the copy.
(E) Cost of Videotaped Depositions. The party requesting the videotaping bears the initial cost of videotaping.
RULE 12.310. (a) DEPOSITIONS UPON ORAL EXAMINATION- Part 2
(5) The notice to a party deponent may be accompanied by a request made in compliance with rule 12.350 for the production of documents and tangible things at the taking of the deposition. The procedure of rule 12.350 applies to the request. Rule 12.351 provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents.
(6) In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named must designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated must testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.
(7) On motion the court may order that the testimony at a deposition be taken by telephone. The order may prescribe the manner in which the deposition will be taken. A party may also arrange for a stenographic transcription at that party’s own initial expense.
(8) Any minor subpoenaed for testimony has the right to be accompanied by a parent, guardian, guardian ad litem, or attorney ad litem at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except on a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor. The provisions of this subdivision do not alter the requirements of rule 12.407 that a court order must be obtained before a minor child may be deposed or brought to a deposition.
(c)Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken must put the witness on oath and must personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness, except that when a deposition is being taken by telephone, the witness must be sworn by a person present with the witness who is qualified to administer an oath in that location. The testimony must be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4). If requested by one of the parties, the testimony must be transcribed at the initial cost of the requesting party and prompt notice of the request must be given to all other parties. All objections made at the time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings must be noted by the officer during the deposition. Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to must be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party must transmit them to the officer, who must propound them to the witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of subdivision (c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 12.280(d). If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. On demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of rule 12.380(a)(4) apply to the award of expenses incurred in relation to the motion.
(h) Failure to Attend or to Serve Subpoena; Expenses.
o (1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by the other party and the other party’s attorney in attending, including reasonable attorneys’ fees.
o (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena on the witness and the witness because of the failure does not attend and if another party attends in person or by attorney because that other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by that other party and that other party’s attorney in attending, including reasonable attorneys’ fees.
RULE 12.320. (a) DEPOSITIONS UPON WRITTEN QUESTIONS Serving Questions;
(a) Notice. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in rule 12.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions must serve them with a notice stating
o (1) the name and address of the person who is to answer them, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which that person belongs, and
o (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. Within 30 days after the notice and written questions are served, a party may serve cross questions on all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions on all other parties.
Within 10 days after being served with redirect questions, a party may serve recross questions on all other parties. The court may for cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served must be delivered by the party taking the depositions to the officer designated in the notice, who must proceed promptly to take the testimony of the witness in the manner provided by rules 12.310(c), (e), and (f) in response to the questions and to prepare the deposition, attaching the copy of the notice and the questions received by the officer. The questions must not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions are submitted to the witness.
RULE 12.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS Use of Depositions.
(a) At the trial or on the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
o (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose permitted by the Florida Evidence Code.
o (2) the deposition of a party may be used by an adverse party for any purpose
o (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(A) that the witness is dead;
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena;
(E) on application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or
(F) the witness is an expert or skilled witness.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.
(b) Objections to Admissibility. Subject to the provisions of subdivision (d)(3) of this rule and of rule 12.300(b), objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a person the party’s own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this does not apply to the use by an adverse party of a deposition under subdivision (a)(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.
(d) Effect of Errors and Irregularities.
o (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served on the party giving the notice.
o (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
o (3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under rule 12.320 are waived unless served in writing on the party propounding them within the time allowed for serving the succeeding cross or other questions and within 10 days after service of the last questions authorized.
(4) As to Completion and Return. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, or otherwise dealt with by the officer under rules 12.310 and 12.320 are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after the defect is, or with due diligence might have been, discovered.
RULE 12.340. (a) INTERROGATORIES TO PARTIES- Part 1
(a) Procedure for Use. Without leave of court, any party may serve on any other party written interrogatories to be answered by the party to whom the interrogatories are directed, or if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who must furnish the information available to that party. Interrogatories may be served on the petitioner after commencement of the action and on any other party with or after service of the process and initial pleading on that party. A party may serve fewer than all of the approved interrogatories within a form.
o (1) Initial Interrogatories. Initial interrogatories to parties in original and enforcement actions must be those set forth in Florida Family Law Rules of Procedure Form 12.930(b). Parties governed by the mandatory disclosure requirements of rule 12.285 may serve the interrogatories set forth in Florida Family Law Rules of Procedure Form 12.930(b).
o (2) Modification Interrogatories. Interrogatories to parties in cases involving modification of a final judgment must be those set forth in Florida Family Law Rules of Procedure Form 12.930(c). Parties governed by the mandatory disclosure requirements of rule 12.285 may serve the interrogatories set forth in Florida Family Law Rules of Procedure Form 12.930(c).
(b) Additional Interrogatories. Ten interrogatories, including subparts, may be sent to a party, in addition to the standard interrogatories contained in Florida Family Law Rules of Procedure Form 12.930(b) or Florida Family Law Rules of Procedure Form 12.930(c). A party must obtain permission of the court to send more than 10 additional interrogatories.
(c) Service of and Objections to Interrogatories. Each interrogatory must be answered separately and fully in writing under oath unless it is objected to, in which event the grounds for objection must be stated and signed. The party to whom the interrogatories are directed must serve the answers and any objections within 30 days after the service of the interrogatories, except that a respondent may serve answers or objections within 45 days after service of the process and initial pleading on that respondent. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under rule 12.380(a) on any objection to or other failure to answer an interrogatory.
(d) Serving of Responses. Parties must serve responses to interrogatories on the requesting party. Responses must not be filed with the court unless they are admitted into evidence by the court and are in compliance with Florida Rule of Judicial Administration 2.425. The responding party must file with the court Florida Family Law Rules of Procedure Form 12.930(d), Notice of Service of Answers to Standard Family Law Interrogatories.
RULE 12.340. (a) INTERROGATORIES TO PARTIES- Part 2
(e) Scope; Use at Trial. Interrogatories may relate to any matters that can be inquired into under rule 12.280(b), and the answers may be used to the extent permitted by the rules of evidence except as otherwise provided in this subdivision. An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party. A party must respond to such an interrogatory by giving the information the party has and the source on which the information is based. Such a qualified answer may not be used as direct evidence for or impeachment against the party giving the answer unless the court finds it otherwise admissible under the rules of evidence.
(f) Option to Produce Records. When the answer to an interrogatory may be derived or ascertained from the records (including electronically stored information) of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries, production of the records in lieu of a written response is a sufficient answer. An answer must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or must identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced. If the records to be produced consist of electronically stored information, the records must be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms.
(g) Effect on Other Parties. Answers made by a party are not binding on any other party.
(h) Service. Interrogatories must be arranged so that a blank space is provided after each separately numbered interrogatory. The space must be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional pages with answers and refer to them in the space provided in the interrogatories. The interrogatories must be served on the party to whom the interrogatories are directed and copies must be served on all other parties. A certificate of service of the interrogatories must be filed, giving the date of service and the name of the party to whom they were directed.
RULE 12.350. (a) PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY ON LAND FOR INSPECTION AND OTHER PURPOSES
Request; Scope. Any party may request any other party (1) to produce and permit the party making the request, or someone acting in the requesting party’s behalf, to inspect and copy any designated documents, including electronically stored information, writings, drawings, graphs, charts, photographs, audio, visual, or digital recordings, and other data compilations from which information can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form, that constitute or contain matters within the scope of rule 12.280(c) and that are in the possession, custody, or control of the party to whom the request is directed; (2) to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of rule 12.280(c) and that are in the possession, custody, or control of the party to whom the request is directed; or (3) to permit entry on designated land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 12.280(c).
(b) Procedure. Without leave of court the request may be served on the petitioner after commencement of the action and on any other party with or after service of the process and initial pleading on that party. The request must set forth the items to be inspected, either by individual item or category, and describe each item and category with reasonable particularity. The request must specify a reasonable time, place, and manner of making the inspection or performing the related acts. The party to whom the request is directed must serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. For each item or 81 category, the response must state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection must be stated. If an objection is made to part of an item or category, the part must be specified. When producing documents, the producing party must either produce them as they are kept in the usual course of business or must identify them to correspond with the categories in the request. A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use. If a request for electronically stored information does not specify the form of production, the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The party submitting the request may move for an order under rule 12.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit the inspection as requested.
Request; Scope. Any party may request any other party (1) to produce and permit the party making the request, or someone acting in the requesting party’s behalf, to inspect and copy any designated documents, including electronically stored information, writings, drawings, graphs, charts, photographs, audio, visual, or digital recordings, and other data compilations from which information can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form, that constitute or contain matters within the scope of rule 12.280(c) and that are in the possession, custody, or control of the party to whom the request is directed; (2) to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of rule 12.280(c) and that are in the possession, custody, or control of the party to whom the request is directed; or (3) to permit entry on designated land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 12.280(c).
(b) Procedure. Without leave of court the request may be served on the petitioner after commencement of the action and on any other party with or after service of the process and initial pleading on that party. The request must set forth the items to be inspected, either by individual item or category, and describe each item and category with reasonable particularity. The request must specify a reasonable time, place, and manner of making the inspection or performing the related acts. The party to whom the request is directed must serve a written response within 30 days after service of the request, except that a defendant may serve a response within 45 days after service of the process and initial pleading on that defendant. The court may allow a shorter or longer time. For each item or 81 category, the response must state that inspection and related activities will be permitted as requested unless the request is objected to, in which event the reasons for the objection must be stated. If an objection is made to part of an item or category, the part must be specified. When producing documents, the producing party must either produce them as they are kept in the usual course of business or must identify them to correspond with the categories in the request. A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use. If a request for electronically stored information does not specify the form of production, the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The party submitting the request may move for an order under rule 12.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit the inspection as requested.
RULE 12.351. (a) PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
Request; Scope. A party may seek inspection and copying of any documents or things within the scope of rule 12.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things. This rule provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents or things under rule 12.310. (b) Procedure. A party desiring production under this rule must serve notice as provided in Florida Rule of Judicial Administration 2.516 on every other 82 party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery and 15 days before the subpoena is issued if the service is by mail or e-mail. The proposed subpoena must be attached to the notice and must state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; must include a designation of the items to be produced; and must state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. A copy of the notice and proposed subpoena shall not be furnished to the person on whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things must not be produced pending resolution of the objection in accordance with subdivision (d). (c) Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production must deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk must issue the subpoena and deliver it to the party desiring production. Service within the state of Florida of a nonparty subpoena is deemed sufficient if it complies with rule 12.410(d) or if (1) service is accomplished by mail or hand delivery by a commercial delivery service, and (2) written confirmation of delivery, with the date of service and the name and signature of the person accepting the subpoena, is obtained and filed by the party seeking production. The subpoena must be identical to the copy attached to the notice and must specify that no testimony may be taken and must require only production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person on whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies. The subpoena may require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts business. If the person on whom the subpoena is served objects at any time before the production of the documents or things, the documents or things will not be produced under this rule, and relief may be obtained under rule 12.310. 83 (d) Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed under rule 12.310.
RULE 12.360. (a) EXAMINATION OF PERSONS
Request; Scope. (1) A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. Examinations may include, but are not limited to, examinations involving physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy. (A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the party or other persons without leave of court after commencement of the action, and on any other person or party with or after service of the process and initial pleading. The request must specify a reasonable time, place, manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made. The party to whom the request is directed must serve a response within 30 days after service of the request, except that a respondent need not serve a response until 45 days after service of the process and initial pleading on that respondent. The court may allow a shorter or longer time. The response must state that the examination will be permitted as requested unless the request is objected to, in which event the reasons for the objection must be stated. If the examination is to be 84 recorded or observed by others, the request or response must also include the number of people attending, their role, and the method or methods of recording. (B) In cases in which the condition in controversy is not physical, a party may move for an examination by a qualified expert as in subdivision (a)(1). The order for examination may be made only after notice to the person to be examined and to all parties, and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. (C) The examination of a minor child is governed by rule 12.363. (D) Social investigations are governed by rule 12.364. (2) An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request has the burden of showing good cause. (3) On request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination. (b) Report of Examiner. (1) If requested by the party to whom a request for examination or against whom an order is made under subdivision (a)(1)(A) or (a)(1)(B) or by the person examined, the party requesting the examination must deliver to the other party a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition. After delivery of the detailed written report, the party requesting the examination is entitled, on request, to receive from the party to whom the request for examination or against whom the order is made a similar report of any examination of the same condition previously or thereafter made, unless in the case of a report of examination of a person not a party the party shows the inability to obtain it. On motion, the court may order delivery of a report on such terms as are just; and if an examiner fails or refuses to make a report, the court may exclude the examiner’s testimony if offered at the trial. 85 (2) By requesting and obtaining a report of the examination so ordered or requested or by taking the deposition of the examiner, the party examined waives any privilege that party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine that party concerning the same condition. (3) This subdivision applies to examinations made by agreement of the parties unless the agreement provides otherwise. This subdivision does not preclude discovery of a report of an examiner or taking the deposition of the examiner in accordance with any other rule. (c) Examiner as Witness. The examiner may be called as a witness by any party to the action, but is not to be identified as appointed by the court.
RULE 12.363. (a) EVALUATION OF MINOR CHILD
Appointment of Expert. (1) The court, on motion of any party or the court’s own motion, may appoint an expert for an examination, evaluation, testing, or interview of any minor child. The parties may agree on the particular expert to be appointed, subject to approval by the court. If the parties have agreed, they shall submit an order including the name, address, telephone number, area of expertise, and professional qualifications of the expert. If there has been a determination of the need for the appointment of an expert and the parties cannot agree on the selection of the expert, the court shall appoint an expert. (2) After the examination, evaluation, or investigation, any party may file a motion for an additional expert examination, evaluation, interview, testing, or investigation by another expert. The court upon hearing may permit the additional examination, evaluation, testing, or interview only on a showing of good cause and only upon a finding that further examinations, testing, interviews, or evaluations would be in the best interests of the minor child. 86 (3) Any order entered under this rule shall specify the issues to be addressed by the expert. (4) Any order entered under this rule may require that all interviews of the child be recorded and the tapes be maintained as part of the expert’s file. (5) The order appointing the expert shall include an initial allocation of responsibility for payment. (6) A copy of the order of appointment shall be provided immediately to the expert by the court unless otherwise directed by the court. The order shall direct the parties to contact the expert appointed by the court to establish an appointment schedule to facilitate timely completion of the evaluation. (b) Providing of Reports. (1) Unless otherwise ordered, the expert shall prepare and provide a written report to each party and the guardian ad litem, if appointed, a reasonable time before any evidentiary hearing on the matter at issue. The expert also shall send written notice to the court that the report has been completed and that a copy of the written report has been provided to each party and the guardian ad litem, if appointed. In any event, the written report shall be prepared and provided no later than 30 days before trial or 75 days from the order of appointment, unless the time is extended by order of the court. The expert shall not send a copy of the report to the court unless the parties and their attorneys have agreed in writing that the report will be considered by the court and filed in the court files as provided in subdivision (e). (2) On motion of any party, the court may order the expert to produce the expert’s complete file to another expert at the initial cost of the requesting party, for review by such expert, who may testify. (c) Testimony of Other Experts. Any other expert who has treated, tested, interviewed, examined, or evaluated a child may testify only if the court determines that good cause exists to permit the testimony. The fact that no notice of such treatment, testing, interview, examination, or evaluation of a child was given to both parents shall be considered by the court as a basis for preventing such testimony. 87 (d) Communications with Court by Expert. No expert may communicate with the court without prior notice to the parties, who shall be afforded the opportunity to be present and heard during any such communication between the expert and the court. A request for communication with the court may be informally conveyed by letter or telephone. Further communication with the court, which may be conducted informally, shall be done only with notice to the parties. (e) Use of Evidence. An expert appointed by the court shall be subject to the same examination as a privately retained expert and the court shall not entertain any presumption in favor of the appointed expert’s findings. Any finding or report by an expert appointed by the court may be entered into evidence on the court’s own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties. Any report filed with the court shall be in compliance with Florida Rule of Judicial Administration 2.425. The report shall not be filed in the court file unless or until it is properly admitted into evidence and considered by the court. The court shall consider whether the report should be sealed as provided by Florida Rule of Judicial Administration 2.420. (f) Limitation of Scope. This rule shall not apply to parenting coordinators or social investigators.
RULE 12.364. SOCIAL INVESTIGATIONS
(a) Applicable to Social Investigations. This rule shall apply to the appointment of an investigator to conduct a social investigation and study under section 61.20, Florida Statutes. (b) Appointment of Social Investigator. When the issue of timesharing, parental responsibility, ultimate decision-making, or a parenting plan for a minor child is in controversy, the court, on motion of any party or the court’s own motion, may appoint an investigator under section 61.20, Florida Statutes. The parties may agree on the particular investigator to be appointed, subject to approval by the court. If the parties have agreed on the need for a social investigation or the court has determined there is such need, and the parties cannot agree on the selection, the court shall select and appoint an investigator. The social investigator must be qualified as an expert under section 90.702, Florida Statutes, to testify regarding the written study. (c) Order for Social Investigation. The order for a social investigation shall state whether this is an initial establishment of a parenting plan or a modification of an existing parenting plan. The investigator shall be required to consider the best interests of the child based upon all of factors affecting the welfare and interest of the particular minor child and the circumstances of that family, including, but not limited to the statutory factors set forth in section 61.13, Florida Statutes. (d) Order Appointing Social Investigator. An order appointing a social investigator shall state that the investigator is being appointed under section 61.20, Florida Statutes, and shall state: (1) (2) being appointed. (3) (4) The name, address, and telephone number for each parent. The name, address, and telephone number of the investigator Any specific issues to be addressed. An initial allocation of responsibility for payment of the costs for the social investigation. The court may consider taxing the costs at a final hearing. 89 (5) The order shall direct the parties to contact the investigator appointed by the court to establish an appointment schedule to facilitate timely completion of the investigation. A copy of the order of appointment shall be provided immediately to the investigator by the court, unless otherwise directed by the court. (e) Written Study with Recommendations. The investigator shall prepare a written study with recommendations regarding a parenting plan, including a written statement of facts found in the social investigation on which the recommendations are based. The written study with recommendations shall be furnished to the court and a copy provided to all parties of record by the investigator at least 30 days before any hearing at which the court is to consider the written study and recommendations, unless otherwise ordered by the court. (f) Additional Investigation. After the written study is furnished to the court, any party may file a motion for an additional expert examination, evaluation, interview, testing, or investigation. The court upon hearing may order the additional examination, evaluation, testing, or interview of the minor child based on the court finding that the investigation is insufficient and that further examinations, testing, interviews, or evaluations of the minor child would be in the best interests of the minor child. (g) Production of File. On motion of any party, the court may order the investigator to produce the investigator’s complete file to another qualified investigator for review by such investigator, who may render an opinion and testify.
RULE 12.365. (a) EXPERT WITNESSES
Application. The procedural requirements in this rule shall apply whenever an expert is appointed by the court or retained by a party. This rule applies to all experts including, but not limited to, medical, psychological, social, financial, vocational, and economic experts. (b) Communication with Court by Expert. No expert may communicate with the court without prior notice to the parties and their attorneys, who must be afforded the opportunity to be present and heard during the communication between the expert and the court. A request for communication with the court may be conveyed informally by letter or telephone. Further communication with the court, which may be conducted informally, may be done only with notice to all parties. 90 (c) Use of Evidence. The court may not entertain any presumption in favor of a court-appointed expert’s opinion. Any opinion by an expert may be entered into evidence on the court’s own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties. (d) Evaluation of Minor Child. This rule does not apply to any evaluation of a minor child under rule 12.363. Committee Note 1998 Adoption. This rule establishes the procedure to be followed for the use of experts. The District Court of Appeal, Fourth District, has encouraged the use of court-appointed experts to review financial information and reduce the cost of divorce litigation. Tomaino v. Tomaino, 629 So.2d 874 (Fla. 4th DCA 1993). Additionally, section 90.615(1), Florida Statutes, allows the court to call witnesses whom all parties may cross-examine. See also Fed. R. Evid. 706 (trial courts have authority to appoint expert witnesses).
RULE 12.370. (a) REQUESTS FOR ADMISSION
Request for Admission. (1) Service of Request. A party may serve on any other party a written request for the admission of the truth of any matters within the scope of rule 12.280(c), set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. The request and any response must comply with Florida Rule of Judicial Administration 2.425. Copies of documents must be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. However, documents attached to the request for admission may not be filed with the court and may only be attached to the copy served on the party to whom the request for admission is directed. Without leave of court the request may be served on the petitioner after commencement of the action and on any other party with or after service of the process and initial pleading on that party. (2) Limit on Number of Requests. The request for admission may not exceed 30 requests, including all subparts, unless the court permits a larger number on motion and notice and for good cause, or the parties propounding and 91 responding to the requests stipulate to a larger number. Each matter of which an admission is requested must be separately set forth. (3) Answer or Objection to Request. The matter is admitted unless the party to whom the request is directed serves on the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow but, unless the court shortens the time, a respondent will not be required to serve answers or objections before the expiration of 45 days after service of the process and initial pleading on the respondent. If objection is made, the reasons must be stated. The answer must specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial must fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party must specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not object to the request on that ground alone; the party may deny the matter or set forth reasons why the party cannot admit or deny it, subject to rule 12.380(c). (4) Motion to Determine Sufficiency of Answers or Objections. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it must order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Instead of these orders the court may determine that final disposition of the request be made at a pretrial conference or at a designated time before trial. The provisions of rule 12.380(a)(4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to rule 12.200 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who 92 obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.
RULE 12.380. (a) FAILURE TO MAKE DISCOVERY; SANCTIONS
Motion for Order Compelling Discovery. On reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows: (1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending or in accordance with rule 12.310(d). An application for an order to a deponent who is not a party must be made to the circuit court where the deposition is being taken. (2) Motion. If a deponent fails to answer a question propounded or submitted under rule 12.310 or 12.320, or a corporation or other entity fails to make a designation under rule 12.310(b)(6) or 12.320(a), or a party fails to answer an interrogatory submitted under rule 12.340, or if a party in response to a request for inspection submitted under rule 12.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted under rule 12.360(a) objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party’s custody or legal control for examination, or if any person fails to comply with any discovery request or requirement under the Florida Family Law Rules of Procedure, including, but not limited to, the failure to comply with rule 12.285, the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request. The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made under rule 12.280(d). 93 (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer. (4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court must require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court must require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons. (b) Failure to Comply with Order. (1) If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of the court. (2) If a party or an officer, director, or managing agent of a party or a person designated under rule 12.310(b)(6) or 12.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 12.360, the court in which the action is pending may make any of the following orders: (A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence. 94 (C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party. (D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made under rule 12.360(a)(1)(B) or subdivision (a)(2) of this rule. (E) When a party has failed to comply with an order under rule 12.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in subdivisions (b)(2)(A)–(b)(2)(C), unless the party failing to comply shows the inability to produce the person for examination. Instead of any of the foregoing orders or in addition to them, the court must require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Alternatively, the court may defer ruling on the party’s motion for sanctions until the conclusion of the matter in controversy. (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 12.370 and if the party requesting the admissions proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court may issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) (2) (3) (d) the request was held objectionable under rule 12.370(a)(3), the admission sought was of no substantial importance, or there was other good reason for the failure to admit. Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, 95 director, or managing agent of a party or a person designated under rule 12.310(b)(6) or 12.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, (2) to serve answers or objections to interrogatories submitted under rule 12.340 after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under rule 12.350 after proper service of the request, the court in which the action is pending may take any action authorized under subdivisions (b)(2)(A)–(b)(2)(C) of this rule. Any motion specifying a failure under subdivisions (d)(2) or (d)(3) must include a certification that the movant, in good faith, has conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. Instead of any order or in addition to it, the court may require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by rule 12.280(d). (e) Electronically Stored Information; Sanctions for Failure to Preserve. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
RULE 12.390. (a) DEPOSITIONS OF EXPERT WITNESSES
Definition. The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify. (b) Procedure. The testimony of an expert or skilled witness may be taken at any time before the trial in accordance with the rules for taking 96 depositions and may be used at trial, regardless of the place of residence of the witness or whether the witness is within the distance prescribed by rule 12.330(a)(3)(B). No special form of notice need be given that the deposition will be used for trial. (c) Fee. An expert or skilled witness whose deposition is taken must be allowed a witness fee in such reasonable amount as the court may determine. The court must also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent must be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs. (d) Applicability. Nothing in this rule prevents the taking of any deposition as otherwise provided by law.
RULE 12.407. TESTIMONY AND ATTENDANCE OF MINOR CHILD
No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.
RULE 12.410. (a) SUBPOENA
Subpoenas Generally. Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action. No subpoena issued under this rule, even if for the purpose of proof of 98 service or nonservice of the subpoena, shall be filed with the court unless in compliance with Florida Rule of Judicial Administration 2.425. (b) Subpoena for Testimony Before the Court. (1) Every subpoena for testimony before the court must be issued by an attorney of record in an action or by the clerk under the seal of the court and must state the name of the court and the title of the action and must command each person to whom it is directed to attend and give testimony at a time and place specified in it. (2) On oral request of an attorney or party, the clerk must issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena must be filled in before service by the attorney or party. (c) For Production of Documentary Evidence. (1) Generally. A subpoena may also command the person to whom it is directed to produce the books, papers, documents (including electronically stored information), or tangible things designated therein, but the court, on motion made promptly and in any event at or before the time specified in the subpoena for compliance with it, may (A) quash or modify the subpoena if it is unreasonable and oppressive, or (B) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. A party seeking a production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 12.080(b). Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party. (2) Compliance with Rule 2.425. Any notice to produce issued under this rule must comply with Florida Rule of Judicial Administration 2.425. 99 (d) Service. (1) Generally. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena on a person named in it shall be made as provided by law. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so. (2) Notice of Subpoena to Parties. A party issuing a subpoena through an attorney of record or clerk of the court under this rule must, on the same day as the subpoena is served, serve each party to the proceeding with a notice of issuance of subpoena and file this notice with the court. The notice of issuance of subpoena must identify the person or entity subject to the subpoena, the date the subpoena was issued, and the date and time for appearance or production, and must recite that all references to account numbers or personal identifying numbers are in compliance with Florida Rule of Judicial Administration 2.425. An unexecuted copy of the subpoena to be issued must be attached to the Notice of Subpoena. (e) Subpoena for Taking Depositions. (1) Filing a notice to take a deposition as provided in rule 12.310(b) or 12.320(a) with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted by rule 12.280(c), but in that event the subpoena will be subject to the provisions of rule 12.280(d) and subdivision (c) of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition upon notice to the deponent. 100 (2) A person may be required to attend an examination only in the county in which the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.
(i) Subpoena of Minor. Any minor subpoenaed for testimony has the right to be accompanied by a parent, guardian, guardian ad litem, or attorney ad litem at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except on a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor. The provisions of this subdivision do not alter the requirements of rule 12.407 that a court order must be obtained before a minor child may be subpoenaed to appear at a hearing.
RULE 12.420. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal. (1) By Parties. An action or a claim may be dismissed (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision; or (B) by filing a stipulation of dismissal signed by all current parties to the action. (2) By Order of Court; Counterpetition. Except as provided in subdivision (a)(1), an action may not be dismissed at a party’s request except on order of the court and on such terms and conditions as the court deems proper. If the petitioner files a notice of dismissal of the original petition after a counterpetition is served by the respondent, the counterpetition shall not be automatically dismissed. (3) Adjudication on the Merits. Unless otherwise specified in a notice of stipulation, a voluntary dismissal is without prejudice and does not operate as an adjudication on the merits. (b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. After a party seeking affirmative relief in an action has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. Involuntary dismissal for lack of jurisdiction, improper venue, or lack of an indispensable party does not act as an adjudication on the merits. All other involuntary dismissals operate as an adjudication on the merits, unless otherwise specified by the court. (c) Costs. Costs shall be assessed, except that the court may not require the payment of costs of a previously dismissed claim, which was based on or included the same claim against the same adverse party as the current action.
Failure to Prosecute. In all actions in which it appears on the face of the record that for a period of 10 months, no activity by filing of pleadings or order of court has occurred, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of the notice, and no record activity occurs within 60 days immediately following the service of the notice, and if no stay was issued or approved before the expiration of the 60-day period, the action must be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year is not sufficient cause for dismissal for failure to prosecute.
RULE 12.431. (a) JURY TRIAL
Generally. In those family law cases in which a jury trial is available, this rule governs those proceedings.
RULE 12.440. (a) SETTING ACTION FOR TRIAL
When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the petition, counterpetition, and answer. 107 (b) Notice for Trial. Any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice must include an estimate of the time required and whether the trial is on the original action or a subsequent proceeding. The clerk must then submit the notice and the case file to the court. If there are any issues to be tried by jury, the notice for trial must so state. (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial, and setting a pretrial conference, if necessary. In the event a default has been entered, reasonable notice of not less than 10 days shall be given unless otherwise required by law. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Florida Rule of Judicial Administration 2.516. Trial shall be set within a reasonable time from the service of the notice for trial. At the pretrial conference, the parties should be prepared, consistent with rule 12.200, to present any matter that will prepare the parties for trial and that can expedite the resolution of the case. The trial court may also direct the parties to reciprocally exchange and file with the court all documents relative to the outcome of the case; a list of all witnesses, all issues to be tried, and all undisposed motions; an estimate of the time needed to try the case; and any other information the court deems appropriate. Any court filings shall be in conformity with Florida Rule of Judicial Administration 2.425. This information should be served and filed no later than 72 hours before the pretrial conference or 30 days before the trial. (d) Sanctions. The failure to comply with the requirements of the order setting the action for trial subjects the party or attorney to appropriate court sanctions. Commentary
RULE 12.480. (a) MOTION FOR A DIRECTED VERDICT Effect.
A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury, if applicable. A motion for a directed verdict must state the specific grounds for it. The order directing a verdict is effective without any assent of the jury, if applicable. (b) Reservation of Decision on Motion. When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury, if applicable, subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered on it and to enter judgment in accordance
with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury, if applicable. (c) Joined with Motion for New Trial or Motion for Rehearing. A motion for a new trial or motion for rehearing may be joined with a motion for directed verdict or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or rehearing, or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial or rehearing.
RULE 12.490. (a) GENERAL MAGISTRATES
(b)Referral(1) No matter can be heard by a general magistrate without an appropriate order of referral and the consent to the referral of all parties. Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.(A) A written objection to the referral to a general magistrate must be filed within 10 days of the service of the order of referral.(B) If the time set for the hearing is less than 10 days after service of the order of referral, the objection must be filed before commencement of the hearing.(C) If the order of referral is served within the first 20 days after the service of the initial process, the time to file an objection is extended to the time within which to file a responsive pleading.
REVIEW OF THE RECOMMENDED ORDER MADE BY THE GENERAL MAGISTRATE MUST BE BY A MOTION TO VACATE AS PROVIDED IN RULE 12.490(e), FLORIDA FAMILY LAW RULES OF PROCEDURE. A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, IS REQUIRED TO SUPPORT THE MOTION TO VACATE, UNLESS WAIVED BY ORDER OF THE COURT PRIOR TO ANY HEARING ON THE MOTION TO VACATE
(c)General Powers and Duties. Every general magistrate must perform all of the duties that pertain to the office according to the practice in chancery and rules of court and under the direction of the court except those duties related to injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking.
(e)Entry of Order and Relief from Order.(1) The general magistrate must submit a recommended order to the court that includes findings of fact and conclusions of law.(2) If a court reporter was present, the recommended order must contain the name, telephone number, and e-mail address of the court reporter.(3) On receipt of a recommended order, the court must review the recommended order and must enter the order promptly unless the court finds that the recommended order is facially or legally deficient, in which case, it must identify the deficiency by written order and remand to the general magistrate to address and, if necessary, conduct further proceedings without the necessity of a new order of referral to general magistrate. Any party affected by the order may move to vacate the order by filing a motion to vacate within 15 days from the date of entry. Any party may file a cross-motion to vacate within 5 days of service of a motion to vacate, provided, however, that the filing of a cross-motion to vacate will not delay the hearing on the motion to vacate unless good cause is shown.
(4) A motion to vacate the order must be heard within 30 days from the date the motion is filed, unless the time frame is extended by court order. If applicable, a motion to vacate operates as a motion for rehearing under rule 12.530. Thereafter, the judge must enter an order rendering a ruling no later than 30 days after the hearing on the motion to vacate.(5) The party seeking review must seek to schedule a hearing date at the same time that the motion to vacate is filed with the court. Failure to seek a hearing date may result in a denial of the motion to vacate.(6) A timely filed motion to vacate stays the enforcement of the order rendered by the court until after the court has conducted a hearing on the motion to vacate and renders an order granting or denying the motion to vacate.
(f)Record. For the purpose of the hearing on a motion to vacate, a record, substantially in conformity with this rule, must be provided to the court by the party seeking review for the court’s review.(1) The record must consist of the court file, all depositions and documentary and other evidence presented at hearing, including the transcript of the relevant proceedings before the general magistrate. However, the transcript may be waived by order of the court prior to any hearing on the motion to vacate.
Rule 12.491 CHILD SUPPORT ENFORCEMENT
(e)General Powers and Duties. The support enforcement hearing officer shall be empowered to issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence. A support enforcement hearing officer does not have the authority to hear contested paternity cases
General Powers and Duties. The support enforcement hearing officer shall be empowered to issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence. A support enforcement hearing officer does not have the authority to hear contested paternity cases
RULE 12.492. (a) SPECIAL MAGISTRATES
Special Magistrates. The court may appoint members of The Florida Bar as special magistrates for any particular service required by the court in a family law matter other than those involving injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking. The special magistrates shall be governed by all the provisions of law and rules relating to general magistrates except as otherwise provided by this rule.
RULE 12.500. (a) DEFAULTS AND FINAL JUDGMENTS THEREON
By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document. (b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise respond as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default. (c) Right to Plead. A party may plead or otherwise respond at any time before default is entered. If a party in default files any document after the default is entered, the clerk must notify the party of the entry of the default. The clerk must make an entry on the docket showing the notification. (d) Setting Aside Default. The court may set aside a default, and if a final judgment on it has been entered, the court may set it aside in accordance with rule 12.540(b). (e) Final Judgment. Final judgments after default may be entered by the court at any time, but no judgment may be entered against a minor or incapacitated person unless represented in the action by a general guardian, guardian ad litem, attorney ad litem, committee, conservator, or other representative who has appeared in it or unless the court has made an order under rule 12.210(b) providing that no representative is necessary for the minor or incapacitated person. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make referrals, or conduct hearings as it deems necessary and must accord a right of trial by jury to the parties when required by the Constitution or any statute.
RULE 12.510. (a) SUMMARY JUDGMENT
For Claimant. A party seeking to recover on a claim, counterpetition, crossclaim, or third-party claim or to obtain a declaratory judgment may move for 123 a summary judgment in that party’s favor on all or any part of it with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. (b) For Defending Party. A party against whom a claim, counterpetition, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part of it at any time with or without supporting affidavits. (c) Motion and Proceedings Thereon. The motion must state with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party must identify, by notice served under Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant under rule 2.516 at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of the hearing. The judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (d) Case Not Fully Adjudicated on Motion. On motion under this rule if judgment is not rendered on the whole case or for all the relief asked and a trial or the taking of testimony and a final hearing is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, must ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It must then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further 124 proceedings in the action as are just. On the trial or final hearing of the action the facts so specified shall be deemed established, and the trial or final hearing shall be conducted accordingly. (e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached to it or served with it. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
RULE 12.530
(a)Jury and Non-Jury Actions. A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues. To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.(b) Time for Motion. A motion for new trial or for rehearing must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.(c) Time for Serving Affidavits. When a motion for a new trial or rehearing is based on affidavits, the affidavits must be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.(d) On Initiative of Court. Not later than 15 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.(e) When Motion Is Unnecessary; Non-Jury Case. When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection to it in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.(f) Hearing on Motion. When any motion for rehearing or new trial is filed, the court must initially make a determination if a hearing on the motion is required. If a hearing is required, the court must provide notice of the hearing on the motion for rehearing or new trial. If the court determines that a hearing is not required, then the court must enter an order granting or denying the motion in accordance with this rule.(g) Order Granting to Specify Grounds. All orders granting a new trial or rehearing must specify the specific grounds for it. If such an order is appealed and does not state the specific grounds, the appellate court must relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial or a rehearing.(h) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment must be served not later than 15 days after entry of the judgment, except that this rule does not affect the remedies in rule 12.540(b).
RULE 12.540 RELIEF FROM JUDGMENT, DECREES OR ORDERS
(a) Clerical Mistakes. Clerical mistakes in judgments or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and on such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:(1) mistake, inadvertence, surprise, or excusable neglect;(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;(4) that the judgment is void; or(5) that the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
The motion must be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, order, or proceeding was entered or taken; except that there will be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases. The motion and any attachment or exhibit to it must be in compliance with Florida Rule of General Practice and Judicial Administration 2.425. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action or supplemental proceeding to relieve a party from a judgment, order, or proceeding or to set aside a judgment for fraud on the court.
RULE 12.570 ENFORCEMENT OF JUDGMENTS Part 1
(a) Money Judgments. Final process to enforce a judgment solely for the payment of money shall be by execution, writ of garnishment, or other appropriate process or proceedings. Money judgments shall include, but not be limited to, judgments for alimony, child support, equitable distribution payments, attorneys’ fees, suit money, and costs.(b) Property Recovery. Final process to enforce a judgment for the recovery of property shall be by a writ of possession for real property and by a writ of replevin, distress writ, writ of garnishment, or other appropriate process or proceedings for other property.(c) Performance of an Act. If judgment is for the performance of a specific act or contract:(1) the judgment must specify the time within which the act must be performed. If the act is not performed within the time specified, the party seeking enforcement of the judgment shall make an affidavit that the judgment has not been complied with within the prescribed time and the clerk shall issue a writ of attachment against the delinquent party. The delinquent party shall not be released from the writ of attachment until that party has complied with the judgment and paid all costs accruing because of the failure to perform the act. If the delinquent party cannot be found, the party seeking enforcement of the judgment shall file an affidavit to this effect and the court shall issue a writ of sequestration against the delinquent party’s property. The writ of sequestration shall not be dissolved until the delinquent party complies with the judgment;(2) the court may hold the disobedient party in contempt; or(3) the court may appoint some person, not a party to the action, to perform the act insofar as practicable. The performance of the act by the person appointed has the same effect as if performed by the party against whom the judgment was entered.(d) Parental Responsibility. Actions for enforcement of issues related to parental responsibility may be brought by motion.(e) Vesting Title. If the judgment is for a conveyance, transfer, release, or acquittance of real or personal property, the judgment has the effect of a duly executed conveyance, transfer, release, or acquittance that is recorded in the county where the judgment is recorded. A judgment under this subdivision will be effective notwithstanding any disability of a party.
RULE 12.570 ENFORCEMENT OF JUDGMENTS Part 2
12.605 INJUNCTIONS
(a) Temporary Injunction.(1) This rule does not apply to relief sought under rule 12.610.(2) A temporary injunction may be granted without written or oral notice to the adverse party only if:(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and(B) the movant or movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.(3) No evidence other than the affidavit or verified pleading may be used to support the application for a temporary injunction unless the adverse party appears at the hearing or has received reasonable notice of the hearing. Every temporary injunction granted without notice must be endorsed with the date and hour of entry and must be filed immediately in the clerk’s office and must define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The temporary injunction shall remain in effect until the further order of the court.
(b) Bond. No temporary injunction may be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.
(c) Form and Scope. Every injunction must specify the reasons for entry, must describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and must be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.(d) Motion to Dissolve. A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion must be heard within 5 days after the movant applies for a hearing on the motion
Rule 12.610 INJUNCTIONS FOR PROTECTION AGAINST DV, REPEAT DATING AND SEXUAL VIOLENCE
SERVICE OF INJUNCTIONS
B) Permanent Injunction. (i) Party Present at Hearing. The parties may acknowledge receipt of the permanent injunction for protection against domestic, repeat, dating, or sexual violence, or stalking in writing on the face of the original order. If a party is present at the hearing and that party fails or refuses to acknowledge the receipt of a certified copy of the injunction, the clerk shall cause the order to be served by mailing certified copies of the injunction to the parties who were present at the hearing at the last known address of each party. Service by mail is complete upon mailing. When an order is served pursuant to this subdivision, the clerk shall prepare a written certification to be placed in the court file specifying the time, date, and method of service and within 24 hours shall forward a copy of the injunction and the clerk’s affidavit of service to the sheriff with jurisdiction over the residence of the petitioner. This procedure applies to service of orders to modify or vacate injunctions for protection against domestic, repeat, dating, or sexual violence, or stalking.
(ii) Party not Present at Hearing. Within 24 hours after the court issues, continues, modifies, or vacates an injunction for protection 138 against domestic, repeat, dating, or sexual violence, or stalking the clerk shall forward a copy of the injunction to the sheriff with jurisdiction over the residence of the petitioner for service. (4) Duration. (A) Temporary Injunction. Any temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the temporary injunction and of the full hearing for good cause shown by any party, or upon its own motion for good cause, including failure to obtain service. (B) Permanent Injunction. Any relief granted by an injunction for protection against domestic, repeat, dating, or sexual violence, or stalking shall be granted for a fixed period or until further order of court. Such relief may be granted in addition to other civil and criminal remedies. Upon petition of the victim, the court may extend the injunction for successive periods or until further order of court. Broad discretion resides with the court to grant an extension after considering the circumstances. No specific allegations are required. (5) Enforcement. The court may enforce violations of an injunction for protection against domestic, repeat, dating, or sexual violence, or stalking in civil contempt proceedings, which are governed by rule 12.570, or in criminal contempt proceedings, which are governed by Florida Rule of Criminal Procedure 3.840, or, if the violation meets the statutory criteria, it may be prosecuted as a crime under Florida Statutes. (6) Motion to Modify or Vacate Injunction. The petitioner or respondent may move the court to modify or vacate an injunction at any time. Service of a motion to modify or vacate injunctions shall be governed by subdivision (b)(2) of this rule. However, for service of a motion to modify to be sufficient if a party is not represented by an attorney, service must be in accordance with rule 12.070, or in the alternative, there must be filed in the record proof of receipt of this motion by the nonmoving party personally.
12.615 CIVIL CONTEMPT IN SUPPORT MATTERS
(a) Applicability. This rule governs civil contempt proceedings in support matters related to family law cases. The use of civil contempt sanctions under this rule shall be limited to those used to compel compliance with a court order or to compensate a movant for losses sustained as a result of a contemnor’s willful failure to comply with a court order. Contempt sanctions intended to punish an offender or to vindicate the authority of the court are criminal in nature and are governed by Florida Rules of Criminal Procedure 3.830 and 3.840.(b) Motion and Notice. Civil contempt may be initiated by motion. The motion must recite the essential facts constituting the acts alleged to be contemptuous. No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. The civil contempt motion and notice of hearing may be served in accordance with Florida Rule of General Practice and Judicial Administration 2.516 provided notice is reasonably calculated to apprise the alleged contemnor of the pendency of the proceedings. The notice must specify the time and place of the hearing and must contain the following language: “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.” This notice must also state whether electronic recording or a court reporter is provided by the court or whether a court reporter, if desired, must be provided by the party.(c) Hearing. In any civil contempt hearing, after the court makes an express finding that the alleged contemnor had notice of the motion and hearing:(1) the court shall determine whether the movant has established that a prior order directing payment of support was entered and that the alleged contemnor has failed to pay all or part of the support set forth in the prior order; and(2) if the court finds the movant has established all of the requirements in subdivision (c)(1) of this rule, the court shall,(A) if the alleged contemnor is present, determine whether the alleged contemnor had the present ability to pay support and willfully failed to pay such support.(B) if the alleged contemnor fails to appear, set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment and direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.(d) Order and Sanctions. After hearing the testimony and evidence presented, the court shall enter a written order granting or denying the motion for contempt.(1) An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.(2) If the court grants the motion for contempt, the court may impose appropriate sanctions to obtain compliance with the order including incarceration, attorneys’ fees, suit money and costs, compensatory or coercive fines, and any other coercive sanction or relief permitted by law provided the order includes a purge provision as set forth in subdivision (e) of this rule.(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. The court may grant the contemnor a reasonable time to comply with the purge conditions. If the court orders incarceration but defers incarceration for more than 48 hours to allow the contemnor a reasonable time to comply with the purge conditions, and the contemnor fails to comply within the time provided, the movant shall file an affidavit of noncompliance with the court. If payment is being made through the Central Governmental Depository, a certificate from the depository shall be attached to the affidavit. The court then may issue a writ of bodily attachment. Upon incarceration, the contemnor must be brought before the court within 48 hours for a determination of whether the contemnor continues to have the present ability to pay the purge.(f) Review after Incarceration. Notwithstanding the provisions of this rule, at any time after a contemnor is incarcerated, the court on its own motion or motion of any party may review the contemnor’s present ability to comply with the purge condition and the duration of incarceration and modify any prior orders.(g) Other Relief. Where there is a failure to pay support or to pay support on a timely basis but the failure is not willful, nothing in this rule shall be construed as precluding the court from granting such relief as may be appropriate under the circumstances.
12.740 MEDIATION
(e) Completion of Mediation. Mediation shall be completed within 75 days of the first mediation conference unless otherwise ordered by the court.
12.741 MEDIATION RULES
(2) Sanctions. If a party fails to appear at a duly noticed mediation conference without good cause, or knowingly and willfully violates any 157 confidentiality provision under section 44.405, Florida Statutes, the court upon motion shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party.
RULE 12.42 PARENTING COORINATION
(c) Order Referring Parties to Parenting Coordinator. An order referring the parties to a parenting coordinator must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(a). The order must specify the role, responsibility, and authority of the parenting coordinator.
(e) Response by Parenting Coordinator. The parenting coordinator must file a response accepting or declining the appointment in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(b). (f) Term of Service. The term of the parenting coordinator shall be as specified in the order of appointment or as extended by the court. The initial term of service shall not exceed two years. The court shall terminate the service on: (1) The parenting coordinator’s resignation or disqualification; or 159 (2) A finding of good cause shown based on the court’s own motion or a party’s written motion. Good cause includes, but is not limited to the occurrence of domestic violence; circumstances that compromise the safety of any person or the integrity of the process; or a finding that there is no longer a need for the service of the parenting coordinator. The motion and notice of hearing shall also be served on the parenting coordinator.
(j) Limitation of Authority. (1) A parenting coordinator shall not have decision making authority to resolve substantive disputes between the parties. A dispute is substantive if it would (A) significantly change the quantity or decrease the quality of time a child spends with either parent; or (B) modify parental responsibility. (2) A parenting coordinator shall not make a substantive recommendation concerning parental responsibility or timesharing to the court unless the court on its own motion or a joint motion of the parties determines that: (A) there is an emergency as defined by the parenting coordination section of Chapter 61, Florida Statutes, (B) the recommendation would be in the best interest of the child, and (C) the parties agree that any parenting coordination communications that may be raised to support or challenge the recommendation of the parenting coordinator will be permitted.
(k) Emergency Order. (1) Consideration by the Court. Upon the filing of an affidavit or verified report of an emergency by the parenting coordinator, the court shall determine whether the facts and circumstances contained in the report constitute an emergency and whether an emergency order needs to be entered with or without notice to the parties to prevent or stop furtherance of the emergency. Except for the 161 entry of an ex parte order in accordance with (k)(2), the court shall set a hearing with notice to the parties to be held at the earliest possible time. (2) Ex Parte Order. An emergency order may be entered without notice to the parties if it appears from the facts shown by the affidavit or verified report that there is an immediate and present danger that the emergency situation will occur before the parties can be heard.
Written Communication with Court. The parenting coordinator may submit a written report or other written communication regarding any nonconfidential matter to the court. Parenting coordinators was required, pursuant to the parenting coordination section of Chapter 61, Florida Statutes, to report certain emergencies to the court without giving notice to the parties.
If the parenting coordinator is unable to adequately perform the duties in accordance with the court’s direction, the parenting coordinator shall file a written request for a status conference and the court shall set a timely status hearing.
