Title Procedure Before General Magistrates and Child Support Enforcement Hearing Officers
Over the past decade, Florida increasingly has relied on state-paid general magistrates and child support enforcement hearing officers. Although neither general magistrates nor hearing officers appear in Article V of the Florida Constitution or the Florida Statutes, together they form a rapidly growing specialized court for family law. Florida funds family general magistrates and hearing officers to provide faster court access for family disputes, relieve demands on judges’ case loads, and save judiciary expenses.1 This article discusses correct referral and notice, recorded hearings, and the filing of exceptions or a motion to vacate order.
Florida’s state-funded general magistrates and hearing officers are structured differently than Article V judges. Unlike Article V judges, they lack a set tenure in office and protection of salary, and instead are state court system at-will employees. General magistrates hear cases only by the implicit or express consent of the parties and are, therefore, conceivably subject to pressure to issue popular rulings. Both general magistrates and hearing officers are selected outside the election or merit retention process for judges and file no financial disclosure,2 although they may individually issue case dispositive rulings in thousands of court cases each year that receive deferential review by the Article V courts.
General magistrates, formerly called general masters, have a long history in chancery.3 General magistrates serve by appointment of the judges within a circuit and remain in office until “removed by the court.”4 A general magistrate may be disqualified from hearing a case on the same bases as a judge.5 General magistrates may hear most family law matters which do not require an order that takes immediate effect.6
A party must file an objection to the referral within 10 days after service of the referral or be deemed to have implicitly consented to the referral.7 Objections can be filed before the time a responsive pleading is due if the referral was made within 20 days of when action filed.8 Failure to timely object may be overcome by good cause shown before hearing commences.9 One court decision has held a party may object before the referral is made.10 A party waives the right to object to a referral actually made if the party participates in the hearing, but the party does not waive objection if there is a total lack of any referral order.11 One consequence of the referral system is that the parties may exercise limited “judge shopping” by consenting or objecting to a referral.12
The notice of referral must state with specificity what is being referred to the general magistrate and must contain certain mandatory language.13 An entire case is generally not referred to a general magistrate unless the parties consent.14 After referral, additional matters may not be referred without agreement of parties,15 And the general magistrate is without jurisdiction to hear additional matters not referred.16 An appeal from a referral lacking consent may be heard by writ of mandamus, writ of prohibition, or direct appeal from the order on the report.17
Hearing officers are the court created response to federal legislation requiring expedited child support procedures in order to receive federal funds.18 court rule, hearing officers are appointed by the chief judge within a circuit and serve at the pleasure of the chief judge and a majority of the circuit judges in the circuit.19 There is no procedure to object to a case being referred to a hearing officer.20 Hearing officers are limited to hearing cases establishing, modifying, or enforcing child support or a support order in conjunction with child support.21 Hearing officers may hear attorneys’ fee issues if there is no objection,22 but, they lack jurisdiction to hear other family law matters.23
The general magistrate or a party may set the action for hearing24 And notice the hearing.25 Any party may apply for a court order to require the general magistrate to speed the proceedings or certify a reason for delay.26 The family rules contain preferred language for the notice of hearing, including whether electronic recording is provided by the court.27 The failure to provide notice of the hearing requires reversal even if a party later participates by timely filing exceptions after the hearing.28 Hearing officers are responsible under court rule for setting hearings in child support actions.29
The second essential practice point is that general magistrates and hearing officers are required to record all hearings.30 Therefore, attorneys representing modestly-funded clients may rely on the recording to preserve an appeals record without paying a court reporter appearance fee. The recording must be transcribed only when filing exceptions to a general magistrate’s report or when moving to vacate a hearing officer’s recommended order.31 The lack of audible recording will result in a new hearing.32
The general magistrate may proceed ex parte if one or more of the parties fails to appear at a noticed hearing.33 The rules of evidence apply to hearings before the general magistrate.34 A party must contemporaneously object to preserve the objection.35 Contemporaneous objection must be made to a child support hearing officer’s jurisdiction to hear attorneys’ fee issues.36 As one or more parties appear pro se in most cases, court rules provide that the general magistrate may examine the witnesses under oath.37 No comparable rule prescribes the hearing officer’s powers to directly interrogate witnesses.
The general magistrate must submit a report and recommendation to the circuit judge containing findings of fact, conclusions of law, and recommendations.38 The report and recommendation in a juvenile case must contain specific language about filing exceptions.39 The hearing officer must also submit a recommended order containing findings of fact.40
If the general magistrate referral is to determine facts based on testimony, then older cases hold the report should indicate on what testimony it is based.41 There is no particular form for the findings of fact; a review of the evidence and the findings taken from the evidence is sufficient.42 The general magistrate must submit the report while still sitting as a general magistrate; a report submitted after the general magistrate’s resignation is a nullity.43 The general magistrate must give notice to the parties that the report and recommendation have been submitted to the circuit judge.44
If no party files exceptions, the circuit judge reviews the general magistrate’s report and recommendation for 1) whether the evidence and facts support the recommendations and 2) whether the recommendations are justified under law.45 Similarly, the circuit judge “carefully considers” the hearing officer’s recommended order for whether the evidence and findings “as fully set forth” in the recommended order support the recommendations, and the circuit judge enters the order “promptly” unless there appears reason to amend the order, conduct hearings, or re-refer the order to the hearing officer for further hearing.46
The third critical practice point is the filing of exceptions to a general magistrate’s report and recommendation or filing a motion to vacate a court’s order on the hearing officer’s recommended order. The filing of exceptions occurs before a circuit judge rules on the general magistrate’s report and recommendation; the motion to vacate occurs after the circuit judge acts on the hearing officer’s recommended order.
In cases proceeding under the family law rules, a party objecting to a general magistrate’s report and recommendation may serve exceptions within 10 days of being served with the report and recommendation.47 In contrast to prior chancery procedure, the family rules do not address enlargement of the 10-day period.48 In contrast to the family rules, in juvenile cases since 2006, a party may file exceptions within 10 days of being served with the report and recommendation.49 This difference should be noted.
The failure to file exceptions will preclude further appellate review.50 One court decision added the five-day mail rule to the 10-day limit in which to file exceptions.51 The exceptions must be stated with specificity.52 The court may not enter the order or take action until after the hearing on the exceptions.53 In practice, parties often waive the 10-day period in order to expedite rendition of the court’s signed order.
In contrast, a motion to vacate the circuit judge’s order on the hearing officer’s recommended order is timely if served within 10 days after entry54 of the circuit judge’s order.55 rule, the circuit judge must hear the motion to vacate a hearing officer’s recommended order within 10 days after the moving party applies for a hearing.56 The filing of a motion to vacate stays enforcement of the order until the hearing is held.57
The record for exceptions or a motion to vacate consists of the court file, the transcript of the hearing, and all evidence accepted at the hearing.58 Since 1995, the court rules place the responsibilities to prepare the record59 And the transcript60 on the party seeking review. The transcript must be filed at least 48 hours before the hearing.61
Court rules do not provide for general magistrates or hearing officers to rehear a matter unless the circuit judge orders further proceedings.62 Rather than file a motion for rehearing, the better practice is to file the exceptions or motion to vacate and request the circuit judge to order further proceedings. Parties simply filing a motion for rehearing may find themselves procedurally barred from further review.
If exceptions to the report and recommendation or a motion to vacate the recommended order are filed, then the circuit judge must review the entire record,63 Including the electronic recording if necessary.64 The circuit judge must give a hearing on the exceptions filed to a general magistrate’s report and recommendation.65 The hearing before the circuit judge on exceptions should be based on the record developed before the general magistrate and not a hearing de novo on the exceptions.66 The party filing the exceptions has the burden of providing record material from the hearing before the general magistrate to sustain the exceptions.67
The circuit judge applies as many as three standards of review to the general magistrate’s report and recommendation when exceptions are filed. First, the circuit judge reviews the findings of fact under a clearly erroneous standard.68 A circuit judge errs by not following findings supported by competent and substantial evidence.69 Some court decisions analogize the standard of review for factual findings as that deference given by a judge to a jury decision,70 or the deference given by an appellate court to the trial court’s factual findings.71 The circuit judge should defer to a general magistrate’s findings based on witness credibility.72 Second, the circuit judge reviews the application of law to the facts under an abuse of discretion standard.73 An abuse of discretion occurs if no reasonable person would take the view adopted by the general magistrate.74 Some courts express this standard as allowing the circuit judge to revise or reject reports if the general magistrate has misconceived the legal effect of the facts or conclusions.75 Some courts have held the circuit judge may reinterpret facts to reach an equitable conclusion.76 One court has held that the circuit judge is not bound by recommendations that are not findings of fact based on disputed evidence.77 Third, the circuit judge and the appellate court review pure conclusions of law de novo.78 If the report relates to matters not referred, then the circuit judge may refer the case back to general magistrate or otherwise the report and recommendation is a nullity.79 In all cases the circuit judge may refer the matter back to the general magistrate for additional testimony.80
For recommended orders from the hearing officer, the circuit judge should amend the recommended order, conduct further proceedings, or refer the case back to the hearing officer to conduct further proceedings.81 The circuit judge should not simply reject the recommended order in its entirety.82
An appeal to the appellate court from the circuit judge’s order is reviewed for an abuse of discretion.83 although a district court’s consideration is essentially a third determination for a case, there are no reported decisions on whether a more restrictive City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), standard of review applies as it does in the cases of appellate review of local government or administrative decisions.84
1 Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc).
2 Code of Judicial Conduct, Application of the Code . Judicial Canons 1, 2A, and 3 apply to general magistrates. Financial disclosure is contained in Canon 7.
3 DeClements v. DeClements, 662 So. 2d 1276, 1279-80 (Fla. 3d D.C.A. 1995) (en banc).
4 Fla. R. Fam. P. 12.490(a); Fla. R. Juv. P . 8.257(a).
5 Fla. R. Fam. P. 12.490(c); Fla. R. Juv. P. 8.257 (c).
6 Fla. R. Fam. P. 12.490(c, g); Fla. R. Juv. P . 8.257(h). But see Little v. Little, 325 So. 2d 424 (Fla. 3d D.C.A. 1976), cert. denied, 341 So. 2d 1083 (Fla. 1976).
7 Fla. R. Fam. P. 12.490(b)(1)(A), 12.490(b)(1)(B) (less than 10 days); Fla. R. Juv. P. 8.257(b)(1), 8.257(b)(2) (less than 10 days).
8 Fla. R. Fam. P. 12.490(b)(1)(C).
9 Fla. R. Fam. P. 12.490(b)(1); Fla. R. Juv. P. 8.257(b)(1).
10 Young v. Young, 816 So. 2d 1267 (Fla. 3d D.C.A. 2002).
11 Hand v. Kushmer, 695 So. 2d 858, 859 (Fla. 2d D.C.A. 1997).
12 E.g., Crespo v. Crespo, 762 So. 2d 568, 570 (Fla. 3d D.C.A. 2000).
13 Merrigan v. Merrigan, 947 So. 2d 668, 670 (Fla. 2d D.C.A. 2007); Fla. R. Fam. P. 12.490(b)(2), 12.490(b)(3); Fla. R. Juv. P. 8.257(b)(3).
14 See Slatcoff v. Dezen, 74 So. 2d 59, 64 (Fla. 1954) (en banc) (superseded by 1972 amendment to Fla. Const. art. V); 45 Fla. Jur. 2d, References §19 (2006). See also Powell v. Weger, 97 So. 2d 617, 619-20 (Fla. 1957).
15 E.g., Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d D.C.A. 2002); Young v. Young, 816 So. 2d 1267, 1269 (Fla. 3d D.C.A. 2002).
16 Burns v. Burns, 13 So. 2d 599, 602 (Fla. 1943). See also Young v. Young, 816 So. 2d 1267, 1269 (Fla. 3d D.C.A. 2002); Pesut v. Miller, 773 So. 2d 1185, 1186 (Fla. 2d D.C.A. 2000).
17 Christ v. Christ, 939 So. 2d 256, 256 (Fla. 1st D.C.A. 2006).
18 In re: Florida Rule of Civil Procedure 1.491 (Child Support Enforcement), 521 So. 2d 118 (Fla. 1988).
19 Fla. R. Fam. P. 12.491(c).
20 Fla. R. Fam. P . 12.491(d); see also Heilman v. Heilman, 596 So. 2d 1046 (Fla. 1992).
21 Fla. R. Fam. P. 12.491(b).
22 Martinez v. Rodriguez, 927 So. 2d 93 (Fla. 3d D.C.A. 2006).
23 Hinckley v. Department of Revenue ex rel. K.A.C.H., 927 So. 2d 73 (Fla. 2d D.C.A. 2006); Fla. R. Fam. P. 12.491(e).
24 Fla. R. Fam. P . 12.490(b)(4). See also Roundtree v. Roundtree, 72 So. 2d 794 (Fla. 1954) (premature to take testimony when pleading issues still outstanding).
25 Fla. R. Fam. P. 12.490(d)(1); see also Brophy v. Ward, 74 So. 701, 702 (1917).
26 Fla. R. Fam. P. 12.490(d)(1).
27 Fla. R. Fam. P. 12.490(d)(4); Fla. R. Juv. P . 8.257(b)(3). See also Fla. R. Fam. P. 12.615(b) (contempt); Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th D.C.A. 2005).
28 Brophy v. Ward, 74 So. 701, 702 (1917).
29 Fla. R. Fam. P. 12.491(e)(1); see also Hatcher v. Davis, 798 So. 2d 765 (Fla. 2d D.C.A. 2001) (court may not allow the DOR to set court calendar).
30 Fla. R. Fam. P. 12.490(d)(2), 12.491(e)(2); Fla. R. Juv. P. 8.257(d)(1).
31 Fla. R. Fam. P. 12.490(g), 12.491(h).
32 Speight v. Clark, 914 So. 2d 498 (Fla. 2d D.C.A. 2005).
33 Fla. R. Fam. P. 12.490(d)(1); Bowers v. Roddy, 38 So. 2d 461 (Fla. 1949).
34 Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P . 8.257(d)(3).
35 Kent v. Knowles, 133 So. 315, 316 (Fla. 1931); Cepero v. Hartridge, 41 So. 192, 193 (1906).
36 Martinez v. Rodriguez, 927 So. 2d 93, 96 (Fla. 3d D.C.A. 2006).
37 Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P. 8.257(d)(3).
38 Fla. R. Fam. P. 12.490(e); Fla. R. Juv. P. 8.257(e).
39 Fla. R. Juv. P. 8.257(f).
40 Fla. R. Fam. P. 12.491(e)(4).
41 Mote v. Morton, 41 So. 607, 608 (Fla. 1906).
42 McAnespie v. McAnespie, 200 So. 2d 606, 611 (Fla. 2d D.C.A. 1967).
43 Model v. Model, 472 So. 2d 867, 868 (Fla. 3d D.C.A. 1985), disapproved on other grounds, DeClements v. DeClements, 662 So. 2d 1276 (Fla. 3d D.C.A. 1995) (en banc).
44 Feuer v. Feuer, 22 So. 2d 641, 642 (1945).
45 In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995).
46 Gregory v. Rice, 727 So. 2d 251, 254-55 (Fla. 1999); Fla. R. Fam. P . 12.491(f).
47 Fla. R. Fam. P. 12.490(f).
48 Fla. Stat. §63.65 (1949).
49 Fla. R. Juv. P. 8.257(f).
50 Whyel v. Smith, 134 So. 552, 555 (Fla. 1931); Rosen v. Wilson, 922 So. 2d 401, 402 (Fla. 4th D.C.A. 2006); but see Chisholm v.Chisholm, 538 So. 2d 961, 962 (Fla. 3d D.C.A. 1989).
51 Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002) (citing Fla. R. Civ. P . 1.090).
52 Penton v. Perez, 800 So. 2d 639, 640 (Fla. 3d D.C.A. 2001); Garcia v. Garcia, 743 So. 2d 1225 (Fla. 4th D.C.A. 1999).
53 Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002).
54 State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241 (Fla. 2d D.C.A. 1995).
55 Hinckley v. Dep’t of Revenue ex rel. K.A.C.H., 927 So. 2d 73, 75 (Fla. 2d D.C.A. 2006); Fla. R. Fam. P. 12.491(f).
56 Fla. R. Fam. P. 12.491(f).
57 State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241-42 (Fla. 2d D.C.A. 1995).
58 Fla. R. Fam. P. 12.490(g)(1); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h).
59 Fla. R. Fam. P. 12.490(g); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h).
60 Brill v. Brill, 905 So. 2d 948, 955 (Fla. 4th D.C.A. 2005); Fla. R. Fam. P. 12.490(g)(3); Fla. R. Juv. P. 8.257(g)(3); Fla. R. Fam. P. 12.491(h)(3).
61 Fla. R. Fam. P. 12.490(g)(2); Fla. R. Juv. P. 8.257(g)(1); Fla. R. Fam. P. 12.491(h)(2).
62 Cf., Kienzle v. Kienzle, 556 So. 2d 1173 (Fla. 3d D.C.A. 1990); but see Dep’t of Health and Rehab. Servs. v. Buttiglieri, 539 So. 2d 1185 (Fla. 5th D.C.A. 1989) (Sharp, J., dissenting) (magistrate denied motion for rehearing).
63 In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995).
64 Gregory v. Rice, 727 So. 2d 251, 255 (Fla. 1999).
65 Smith v. Smith, 932 So. 2d 638, 639 (Fla. 2d D.C.A. 2006); Fla. Fam. L. R. P. 12.490(f); Fla. R. Juv. P . 8.257(f).
66 Martinez v. Garcia, 575 So. 2d 1365, 1367 (Fla. 3d D.C.A. 1991); but see, e.g., Bellville v. Bellville, 763 So. 2d 1076, 1077 (Fla. 4th D.C.A. 1999) (de novo hearing on exceptions).
67 DeClements v. DeClements, 662 So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc).
68 Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc).
69 Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d D.C.A. 2006).
70 Aldred v. Romano, 58 So. 2d 436, 438 (Fla. 1952) (citing cases).
71 Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Brinkley v. Brinkley, 453 So. 2d 941, 943 (Fla. 4th D.C.A. 1984).
72 Soud v. Hike, 56 So. 2d 462, 468 (Fla. 1952); Harmon v. Harmon, 40 So. 2d 209, 212-13 (Fla. 1949); Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006).
73 Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc); accord Frank v. Frank, 75 So. 2d 285, 285 (Fla. 1954).
74 Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc).
75 Henderson v. Henderson, 905 So. 2d 901, 903 (Fla. 2d D.C.A. 2005); DeClements v. DeClements, 662 So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc).
76 Mounce v. Mounce, 459 So. 2d 437 (Fla. 3d D.C.A. 1984); Sitomer v. Sitomer, 397 So. 2d 373, 374 (Fla. 4th D.C.A. 1981); see, e.g., Silver v. Borrelli, 584 So. 2d 1077 (Fla. 4th D.C.A. 1991) (judge can increase recommended amount of child support).
77 Sonson v. Sonson, 815 So. 2d 685, 686 (Fla. 3d D.C.A. 2002).
78 E.g., Lowe v. Lowe, 948 So. 2d 836 (Fla. 4th D.C.A. 2007) ( in personam jurisdiction).
79 Sniffen v. Sniffen, 382 So. 2d 823, 824 (Fla. 4th D.C.A. 1980); Waszkowski v. Waszkowski, 367 So. 2d 1113, 1113 (Fla. 3d D.C.A. 1979).
80 See, e.g., Cohien v. Fincke, 39 So. 2d 65 (Fla. 1949).
81 Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003); Fla. R. Fam. P. 12.491(f).
82 Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003).
83 Carls v. Carls, 890 So. 2d 1135, 1138 (Fla. 2d D.C.A. 2004); see Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d D.C.A. 2006).
84 E.g., City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982) (local government); Fla. Stat. §120.68 (2006) (limited judicial review of administrative agency orders); Sheley v. Florida Parole Comm’n, 703 So. 2d 1202 (1st D.C.A. 1997, appv’d, 720 So. 2d 216 (Fla. 1998) (mandamus from Parole Commission).
R. Mitchell Prugh is a general magistrate and child support enforcement hearing officer in the Seventh Circuit. Mr. Prugh has served on the Juvenile Rules Committee since 2002.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard, editor.
