Three times was too many for Miami Heat star Dwayne Wade’s ex-wife. Four years ago, an Illinois court entered a 102-page (!) judgment after a 38-day (!) trial, detailing D-Wade and his ex-wife’s custody and timesharing arrangements. D-Wade was given sole custody and permission to relocate the minor children to Florida, with his ex-wife granted timesharing/visitation rights.

D-Wade registered and domesticated the judgment in the Miami-Dade Circuit Court in 2012. When he did that, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), jurisdiction over custody issues was relinquished from the Illinois court to the Family Division of the Miami-Dade County Circuit Court.

Three years later, Wade and his ex-wife are still fighting over visitation. D-Wade’s ex has filed three separate appeals to the 3rd District Court of Appeal. In her first two appearances before the 3rd DCA, D-Wade’s ex-wife successfully challenged an order by a Miami-Dade Circuit Court judge requiring her to submit to a psychological evaluation, and successfully petitioned for the judge to be disqualified from presiding over the case.

By the former Mrs. Wade’s third appeal, however, the 3rd DCA was disturbed that the parties were continuing to fight it out in court instead of resolving their differences — suggesting that their lawyers may be responsible for unnecessarily prolonging the battle. In an opinion released on March 25, 2015, the court rejected the former wife’s argument that the circuit court had impermissibly modified the Illinois court’s custody judgment when it ordered that she give more advance written notice be given for time-sharing and declined to award “make-up days” to her to compensate for lost visitation days.

But the substance of the dispute, which was over a pretty minor issue, seemed to have been of secondary importance to the 3rd DCA. Most of the opinion is dedicated not to that issue, but to critiquing the conduct of both parties’ lawyers. The court chastised both sides’ lawyers for sending “abrasive and accusatory” emails to each other instead of working to resolve the issues.

Even more concerning to the court, however, was the lawyers’ apparent lack of attention to the custody judgment’s requirement that a Parenting Coordinator be consulted to minimize and resolve disputes. Although the originally appointed Parenting Coordinator had resigned, the lawyers should have arranged for the appointment of another, the court felt. Doing so could have avoided continued litigation — and kept the star player’s family out of the news — by providing “a path of confidentiality and non-judicial resolution for the benefit of the children and, by benefiting the children, the parties.”

Anticipating future court battles and appeals — this dispute centered on visitation for the summer of 2014, so similar disputes ostensibly could arise over time-sharing over future summers — the 3rd DCA made clear that it would not welcome future appeals over similar minutiae:

In a high-conflict, high-profile case such as this, the parties and their counsel have the resources to appeal every adjustment of time-sharing procedures based on particular occurrences, but it does not follow that every such adjustment warrants the comprehensive appellate review accorded a substantive post-judgment modification.

In other words, do not waste your money or our time appealing again over relatively trivial issues.                    

Avenues of communication have dramatically expanded over the past few decades, with email, social media, the proliferation of mobile phones, and text messaging making it easier and easier to make contact with the vast majority of people. Whether they want to be in contact with us or not.

Rules for service of process in most jurisdictions were written long before these developments. It remains the rule that when serving process (notifying a defendant that a lawsuit has been filed against him/her/it), personal service (hand delivery) is required. And that requirement is not likely to go away anytime soon, for the simple reason that there is no more effective way to ensure that someone is informed that he/she/it is being sued than to deliver the lawsuit into that person’s hands.

But sometimes a process server can’t find the defendant for personal service. If the plaintiff has made a diligent search for the defendant and still can’t find him/her/it, the rules in most jurisdictions allow for substitute service of process, where service of process can be transmitted to the defendant by some means other than in-person delivery.

In the realm of substitute service of process, the reality that so many forms of communication are now available is beginning to have an impact. Despite that rules of court have not changed, courts are now taking into account the availability of modern forms of communication when considering both whether a plaintiff has made sufficient efforts to locate the defendant before resorting to substitute service of process, and the means that should be used to deliver the lawsuit to the defendant when substitute service of process is appropriate.

Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., a recent decision of Florida’s Second District Court of Appeal (2nd DCA) in Lakeland, Florida, illustrates how modern forms of communication have impacted the search a plaintiff must make before resorting to substitute service of process. In that case (in which Bushell Appellate Law, P.A. represents the defendants/appellants) the plaintiff obtained a default judgment after using substitute service of process by mailing a copy of the lawsuit to the Secretary of State.

The plaintiff contended that substitute service of process was appropriate, because it had conducted a diligent search. It had tried multiple times to serve the defendants at a condominium they owned, and had hired an investigator to conduct a “skip trace,” which did not uncover another address for them.

But the defendants/appellant argued, and the 2nd DCA agreed, that the search was inadequate because the plaintiff had failed to look to the most obvious source to find out where the defendants could be served. Here’s where modern communication came into play: the plaintiff’s president and one of the defendants (who was the principal of the two corporate defendants and the husband of the other individual defendant) had been exchanging text messages during the time period when the plaintiff was trying to serve process. And despite text messages from the defendant saying he was in California, the plaintiff didn’t ask the defendant where he could be located and served with process.

Coastal Capital stands as a lesson that if a plaintiff has a defendant’s cellphone number (as is frequently true in commercial and family litigation and some other types of disputes), the plaintiff must try calling and texting the defendant before resorting to substitute service. And there is no reason to think that the result would have been different if the plaintiff had had the ability to contact the defendant via social media rather than text messaging.      

On the other side of the coin are some recent decisions on how substitute service should be carried out. The goal of service of process, after all, is to make sure the defendant has notice of the lawsuit. So courts have understandably begun recognizing that communication via social media can be an effective way to accomplish substitute service of process. For example, a New York family court judge recently issued an order allowing service of process to be made via Facebook (in conjunction with service by regular mail to the last known physical address) after attempts to locate the defendant at her last known physical address were unsuccesful.

And a few federal court decisions have also authorized substitute service of process via email and social media, but so far they have been confined to substitute service on international defendants. One such decision authorized substitute service of process via Facebook in conjunction with email, while another authorized substitute service via Facebook and Linkedin in conjunction with email. 

Service of process rules may not have changed as means of communication have expanded. But as court are increasingly recognizing, newer means of communication should not be ignored when deciding whether substitute service is appropriate, or in deciding the best way to effectuate substitute service when it is appropriate. 

Is a Facebook friendship really a friendship? Can judges be “friends” with attorneys on Facebook? Florida judges and legal ethicists have been debating these questions for more than four years. Florida District Courts of Appeal have now begun to offer their opinions, as Facebook friending has emerged as an issue in motions to recuse trial court judges. But definitive answers remain illusory. 

Back in 2009, the Judicial Ethics Advisory Committee of the Florida Bar thought it had resolved the issue when it released an ethics opinion weighing in on these issues. According to the JEAC’s opinion, a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her.  

But more than three afters that opinion was released, at an educational program discussing this topic, a justice of the Florida Supreme Court reminded appellate judges and lawyers that the JEAC’s opinion is not necessarily authoritative. The JEAC is an advisory committee, the justice pointed out, and the Supreme Court of Florida is the ultimate arbiter of legal and judicial ethics in Florida. 

During the same discussion, other Florida appellate court judges offered varying viewpoints about the propriety of Facebook friending. Judges are permitted to be friends with lawyers in real life, one pointed out, so why can’t they also be Facebook friends with lawyers? Another took the view that because Facebook is so public, allowing a lawyer to list a judge as his/her Facebook friend might create a forum for a lawyer to try to woo clients by giving the impression of having special influence over the judge presiding over their cases, or might cause opposing parties to fear that the judge might be biased in favor of his/her “friend.”

The 4th DCA Frowns on Facebook Friendship

Now Facebook friendship has become an issue in litigation. In September 2012, the Fourth District Court of Appeal in West Palm Beach became the first Florida appellate court to address Facebook friendship between judges and lawyers in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). Agreeing with the reasoning of the JEAC’s opinion, the 4th DCA held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend.

It may be that the prosecutor’s Facebook friendship with the judge entailed no special influence over the judge whatsoever, the 4th DCA explained. But the existence of the Facebook friendship could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial” and that fear is sufficient to require the judge’s recusal. The Supreme Court of Florida declined to hear the appeal. 

The 5th DCA Disagrees 

On January 24, 2014, in Chace v. Loisel, the Fifth District Court of Appeal in Daytona Beach became the second Florida District Court of Appeal to weigh in. Making clear that the issue is far from settled, the 5th DCA called into question the 4th DCA’s understanding of the implication of Facebook friendship:

 We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary.

To require judges to step aside from hearing cases based on Facebook friendships, the 5th DCA explained, is to misunderstand “the true nature of a Facebook friendship,” and doing so “casts a large net in an effort to catch a minnow.”

Both Courts Agree That Some Facebook Friending is Out of Bounds

Despite its criticism of Domville, the 5th DCA held that the trial court in Chace should have followed the 4th DCA’s guidance and recused herself. Why? 

For two reasons. First, at the time that the motion to recuse was made, Domville was the only decision of a Florida appellate court on the issue of Facebook friendship. When there is only one appellate court decision on an issue, every trial court in the state is required to apply the law as interpreted in that decision.  

Second, the Facebook activity of the judge in Chace was worse and more likely to result in bias than merely being Facebook friends with one of the parties’ lawyers. The judge in Chace actually sent a Facebook friend request to one of the parties, i.e., Ms. Chace, while her divorce litigation was pending before the judge. On her attorney’s advice, Ms. Chace didn’t accept the request, and feared the judge might hold it against her.

The 5th DCA found the judge’s conduct of reaching out to a litigant with a case pending before her more troubling than a mere Facebook friendship between a judge and an attorney. It regarded Ms. Chace’s fear of bias as well founded, and ordered the judge to recuse herself.

An Open Question

The reality is that most judges are former litigators, and most former litigators have friends — on Facebook and in real life — who are litigators. But it is also a reality that even without Facebook friendships, many litigants are suspicious of the relationships between judges and lawyers.

It is unlikely that judges will ever be banned from having real life friendships with lawyers. At least in the short term, judges in Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties cannot be Facebook friends with lawyers appearing before them. It remains an open question whether they, and judges throughout the state, will be able to maintain Facebook friendships with lawyers in the long run.   

Issuing its opinion in DMT vs. TMH, a closely watched case that drew national attention, the Supreme Court of Florida today declared that a woman has constitutionally protected rights to raise a child created by artificial insemination using her ovum, with the fertilized ovum carried and the child born by her then-committed partner, and initially raised by the woman and her former partner. Justice Pariente wrote the opinion for the Court, with Justice Polston writing a dissenting opinion in which two other justices joined.

The facts are these. DMT and TMH were in a committed lesbian relationship for about 11 years. They decided to have a child by in vitro fertilization, using TMH’s ova fertilized by donated sperm, with the fertilized ova implanted in DMT. DMT gave birth to the child and DMT and TMH raised the child together as equal parents, initially in the home they shared. DMT and TMH, who could not marry in Florida, split up about 17 months after the child was born. They initially continued to co-parent the child after the split, agreeing that the child would divide time between their homes. But things turned nasty, and DMT ran away with the child and denied TMH any contact with the child.

TMH finally found DMT in Australia. She sued DMT to establish her right to co-parent the child. The problem for TMH was that section 742.14, Florida Statutes, which deals with surrogacy, extinguishes the parental rights of egg and sperm donors to  children created from their donated genetic material. The trial court found that section 742.14 was controlling, and ruled in favor of DMT, despite stating that DMT’s actions were morally reprehensible and against the interests of the child.

The Fifth District Court of Appeal (in Daytona Beach, which hears appeals from portions of central and northern Florida) reversed the trial court, holding that section 742.14 did not apply, finding TMH was not a “donor” under the statute because she did not intend to give her ova away (i.e. to “donate” it), but rather always intended to raise any child that resulted from her egg, even though she wouldn’t be carrying and giving birth to the child. 

The majority of the Florida Supreme Court rejected that interpretation. It held that section 742.14 did apply, because whether someone is considered a “donor” under the statute doesn’t depend on what her intentions were, but rather only on whether she gave genetic material. That conclusion was compelled by statutory language as well as practical considerations. If intentions matter, then any sperm or egg donor could say that he/she didn’t really intend to give up the child, and thus avoid the effect of the statute, which aims to prevent drawn out custody battles over children created from donated eggs and/or sperm.

But the the majority agreed with the 5th DCA’s result, based on a more monumental, and potentially farther reaching, basis. They found that the statute was unconstitutional as applied to the circumstances in DMT, in that TMH not only contributed genetic material, but also took on the responsibility for raising the child after it was born. Thus, her situation was analogous to an unmarried father of a child, which courts have held has inchoate parental rights that become constitutionally protected if the father takes on the responsibilities of raising the child.

Denying parental rights to an individual in TMH’s circumstances, the majority held, violates the Due Process, Privacy, and Equal Protection clauses of the Florida Constitution, as well as the Due Process and Equal Protection clauses of the United States Constitution.

Not surprisingly, the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court declared Title II of the Defense of Marriage Act to be unconstitutional by denying Equal Protection to gay married couples, figured prominently in the Florida Supreme Court’s constitutional analysis in DMT.

But the Court also based its decision on the Florida Constitution (in addition to the United States Constitution), and was careful to point out that its finding that the Florida Constitution was violated was “separate” from its finding that the United States Constitution was violated. In doing so, the Court likely insulated its decision from further review by the United Supreme Court. The Florida Supreme Court has the last word in interpreting the provisions of the Florida Constitution, and the United States Supreme Court generally does not involve itself in cases in which there is an independent state law basis for the decision, even if federal issues are also decided.

The Court further insulated its decision from review by the United States Supreme Court by grounding its decision on the Privacy clause in the Florida Constitution, which has been held to provide broader protection of privacy rights, including parental rights, than is provided by the United States Constitution. (Unlike the Florida Constitution, the U.S. Constitution does not have an explicit privacy clause, although privacy is addressed in the context of searches and seizures, and has been held to be implied by the Due Process clause.) So the Florida Supreme Court’s interpretation of the United States Constitution (as well as of the Florida Constitution) as protecting the parental rights of women in TMH’s position is likely to stand.  

In the past few years, the strangest things have started appearing in appellate decisions: images. That has been seen as so revolutionary that it has been widely covered in the legal press, with 7th Circuit opinions authored by Judge Richard Posner (as is often the case) drawing the most attention. The question is: why are judges now inserting images into their opinions?

The answer may be that astute judges are responding to the changing environment in which their opinions are being read. Appellate court opinions have been accessible online for years, and they are now more commonly read on “screens” — computers, iPads/tablets, and smartphones — than in books. And studies have shown that we read differently when looking at a screen than when looking at printed text on paper.

For example, here’s how scientists say our eyes track the data on a webpage:

http://www.usability.gov/images/fpattern.JPG

Notice the concentration of red on the left hand border of the page created by the eye searching down the page for its structure. Note also how the eye tends to skip around.

Astute legal writers — especially appellate lawyers — would be wise to take note of how different the reading experience is on a screen, and to take it into account when drafting court submissions. That point was persuasively made during a presentation at the Florida Conference of District Court of Appeal Judges last fall (which I and other members of the Florida Bar’s Appellate Practice Section were fortunate enough to attend).

Judges (and their clerks) are increasingly reading appellate briefs and other court submissions on computer screens, and when travelling, on iPads, Kindles and other e-readers, or on smartphones. (An informal survey during another presentation at the conference revealed Florida appellate judges to be tech-savvy and partial to iPhones and iPads, although Android phones were also represented).

The trend toward screen-reading will only increase now that e-filing is replacing paper filing.

In order for an appellate brief or any piece of legal writing to be persuasive, it must command the reader’s attention. And to get and keep a reader’s attention when he or she is reading on a screen, attorneys need to adopt the format of their documents to fit the environment.

How? In much the same way as one makes a webpage easy to read and engaging. Here are some suggestions:

  • Add spacing — Text is easier to read when it is surrounded by white space. Increase margins.  Large block paragraphs extending from margin to margin are a relic of book reading. They are difficult to digest when read on a screen, particularly when read on a Kindle or similar e-reader.
  • Shorten the paragraphs. Not only do shorter paragraphs make the document more palatable to the eye (and increase white space), but they also account for the attention span issues that have been engendered by the digital age.
  • Use headings more liberally. Effective headings are alot like soundbites — they grab the reader’s attention and drive home the point quickly before that attention is lost. Hopefully, they also encourage the reader to continue to read and pay attention.
  • Insert document bookmarks. If you’ve opened a .pdf of a recent Florida Supreme Court opinion, you may have noticed a menu bar on the left hand side mapping out the sections of the opinion. Document bookmarks help the reader to get a feel for the overall structure of the document. They also help the reader to easily navigate between sections and arguments. When the reader must scroll up and down the screen to find sections, a traditional table of contents is a much less helpful roadmap than a bookmarks bar, where the reader can click right on the section he or she is looking for.

And finally there’s the most radical idea: illustration with images. This practice is the most obvious concession to the effect the internet and it remains relatively unorthodox and somewhat controversial. So a fair amount of tact and judgment is needed.

But when used appropriately, tactfully, and sparingly, images can be highly effective. (If the picture is worth 1000 words, it can also help to make the brief shorter, which judges always appreciate). If nothing else, images command attention. Just ask Judge Posner. 

No doubt family law disputes can result in some of the most acrimonious litigation. If France v. France, No. 5D11-1477, a decision handed down by Florida’s 5th DCA last week, is any indication, they can also result in highly complex issues of jurisdiction and conflicts of law among states.

Generally, if you’re injured while in Florida, due to negligent, reckless, or intentional conduct of someone else in Florida, Florida courts have jurisdiction, and Florida law applies. It becomes more complicated when the person who causes your injury is not in Florida at the time they do whatever it is that causes your injury. And what happens if that person is not only in another state at the time of the event that causes your injury, but he/she is in a state where it is perfectly legal and proper to engage in the conduct, even though it is unlawful in Florida?

The issue in France is even more complicated than that. The case involves Florida’s Security of Communications Act, § 934.03, Florida Statutes, which makes it illegal to record a telephone conversation without the consent of the other parties to the call. Under federal law, and in the majority of states, including North Carolina, it is not unlawful to record a telephone conversation in which you’re a participant, because only one party’s consent is necessary, so your consent counts.

But in a minority of states, including Florida, it is unlawful to record a telephone conversation unless every participant in the call consents. In France, the former husband sued his former wife for recording phone calls without his consent. He was in Florida during the calls. She was in North Carolina. The words she recorded were spoken in Florida, but recorded in North Carolina. His rights were unlawfully violated in Florida, but she acted lawfully according to North Carolina law.

Can he sue her in Florida? Maybe. The Fifth District said it felt constrained to find that the answer is yes, but the judges weren’t happy about it.

The court framed the issue as one of jurisdiction rather than of conflicts of law. Two showings are required before a Florida court can assert jurisdiction over a non-Floridian alleged to have injured a Florida resident through a negligent, reckless or intentional act or failure to act. The first requirement is to satisfy Florida’s long arm statue, which can be met if the person committed “a tortious act within” Florida. The second is to satisfy the constitutional requirement of having “minimum contacts” with the state, i.e., that the person acted in such a way that they could “reasonably have anticipated being haled into court” in Florida.   

The trial court in France dismissed the complaint based on its conclusion that the former wife had not committed a tortious act within Florida. To analyze that issue on appeal, the Fifth District looked to two decisions dealing with this issue from the 2nd DCA. In the first, Koch v. Kimball, 710 So. 2d 5 (Fla. 2d DCA 1998), the Second District said an insurance company employee who was in Georgia when she recorded a call with her supervisor, who was in Florida at the time, could be sued in Florida. Even though the tape recorder was in Georgia during the call, the court based its holding on case law saying words are captured where they are spoken, not where they are heard. So even though the employee was in Georgia, she committed a tortious act in Florida by recording words spoken in Florida.

In the second decision, Kountze v. Kountze, 996 So. 2d 246 (Fla. 2d DCA 2008), the 2nd DCA, sitting en banc, overruled Koch, and held that Florida courts did not have jurisdiction over a person who was in Nebraska while recording a phone call with his cousin, who was in Florida. That decision was based on concerns about the constitutionality of Florida asserting its police powers over persons in other states.

But 5 years before Koch was overruled by the 2nd DCA, in Acquadro v. Bergeron, a 2003 decision, the Florida Supreme Court said it approved of the holding in Koch in the course of holding that Florida’s long arm statute was satisfied where an out-of-state defendant made telephone calls into Florida in which she allegedly defamed the plaintiff.

In a footnote in Acquadro, the Florida Supreme Court said it “approve[d] the Second District’s decision in Koch because like [Wendt v. Horowitz, 822 So. 2d 1252, 1257 (Fla. 2002)] the decision held that a telephonic communication into Florida can constitute a tortious act.”

Based on that statement of approval, the Fifth District felt that it was bound to follow Koch, and find that the former wife’s conduct brought her within Florida’s long arm statute. But the judges made clear that if writing on a clean slate, they probably would have reached a different conclusion. The court certified conflict with Kountze, making it more likely that the Florida Supreme Court might take its own look at the issue.

The 5th DCA said the analysis in Wendt seems to support the opposite result in France, because in Wendt the Supreme Court said in order for a telephonic communication into Florida to confer jurisdiction, “the cause of action must arise from the communications,” and the cause of action in France arose from “the act of recording communications, not the communications themselves.” Maybe, but that seems like a strained reading of Wendt to me.

Wendt also cited Koch with seeming (though not explicit) approval, as an example of one of two lines of cases — the line of cases it ultimately agreed with. And the holding in Wendt is two-fold. First, a defendant doesn’t have to be in Florida to commit a tortious act in Florida.

Second, the defendant in that case was found to have committed a tortious act in Florida by negligently preparing documents while he was in Michigan based on the fact that he intended to, and did, send them to Florida. One could just as easily argue that the tortious act in that case didn’t arise from the communications themselves but from the negligent preparation of them (with the intent to send them to Florida), which occurred in Michigan, just as the 5th DCA intimated that the tort didn’t arise from the communications but from recording them.

It seems to me that the statement in Wendt about the tort arising from the communications was intended to address situations such as the following: An out-of-state defendant has business dealings with a Florida resident, and at a meeting in Texas, the defendant is alleged to have fraudulently induced the plaintiff to purchase property in Texas. After the contract is signed, the defendant participates in phone calls with the plaintiff while the plaintiff is in Florida, but the alleged fraud occurred before those calls took place. In that situation, the mere fact that the defendant called the plaintiff in Florida doesn’t give Florida courts jurisdiction over the defendant, because the tort was committed in Texas. 

And I think a different distinction can be made. What’s interesting is that while approving Koch in Acquadro, the court said it was doing so because the 2nd DCA had “held that a telephonic communication into Florida can constitute a tortious act.” On the other hand, the Supreme Court doesn’t seem to have adopted the underlying premise of Koch.

Recall that the logic of Koch was that interception of the call actually occurred in Florida because it’s where the words are spoken that matters, not where they’re heard. By contrast, in Acquadro and Wendt, the place where the words were heard is what mattered.

So it might be that although the Supreme Court agreed with the general principle in Koch that one can commit a tort in Florida over the phone, it might reach a different result if confronted with a situation squarely raising the issue of where a call is recorded.

Real electronic filing may finally make its way to Florida courts in the not-too-distant future.  But before that happens, the Florida Supreme Court wants to make sure that there isn’t too much private information in court filings for the public to access.

On June 30, 2011, the Court adopted sweeping new rules about what information can and can’t be put in the court file.  Florida litigators who want to avoid the sanctions that can be imposed for violating the new rules shouldn’t wait too long to become familiar with them — they are going into effect on October 1, 2011.

For the time being, the privacy rules don’t affect criminal cases, for the most part, but they affect all civil cases.  And the reprieve in criminal cases isn’t likely to last very long.

Here is a breakdown of the Rule changes you need to know:

Florida Rule of Judicial Administration 2.425

Rule of Judicial Administration 2.425, which was added by the Court’s June 30, 2011 Amendments, contains the overarching principles. So if you learn that Rule (and remember to apply it in whatever context you find yourself) you’ll be most of the way there. But one caution: Rule 2.425 only states a default rule — it gives way to conflicting Rules, statutes, and orders.

This chart spells out the types of information that are subject to Rule 2.425:

Restricted Info:     Can include in a filing?           Exceptions:

Child’s Name           Initials only                        Orders re: time-sharing, parental
                                                                   responsibility, or child support. 
                                                                   Any document re: child’s ownership of real property.
Birthdates               Year only                           Any party’s full birthdate in writ of attachment
                                                                   or notice to payor. Child’s full birthdate when
                                                                   necessary for jurisdiction.
Social Sec. #s              No                               General exceptions
Bank Account #s           No                               General exceptions
Credit/Debit Card #       No                               General exceptions
Charge Account #          No                               General exceptions
Drivers License #          Last 4 digits only            General exceptions
Passport #                   Last 4 digits only            General exceptions
Taxpayer ID #              Last 4 digits only            General exceptions
Employee ID #             Last 4 digits only            General exceptions
Phone #                      Last 4 digits only            General exceptions
Insurance Policy #         Last 4 digits only            General exceptions
Loan #                        Last 4 digits only            General exceptions
Patient/health care #      Last 4 digits only            General exceptions
Customer Accont #        Last 4 digits only            General exceptions
Email address               Truncated                      General exceptions
User name                   Truncated                      General exceptions
Password                     Truncated                      General exceptions
PIN #s                        Truncated                      General exceptions
Other sensitive info:      Truncated as per court order

General Exceptions:

  • Statute, Rule or Order authorizes the inclusion of the information in a filing
  • Account number is necessary to identify property at issue in a case.
  • Information that is “relevant and material to an issue before the court.” [!!! This looks to me like an exception that you could drive a truck through.  It’ll be interesting to see how courts interpret it.]
  • Records in an administrative, agency, appellate, or review proceeding.
  • Information used by the clerk or the court for file and case management purposes.
  • Criminal cases are temporarily exempt.
  • Traffic court cases are temporarily exempt.
  • Small claims cases are temporarily exempt.

A Few Other Notes:

What effect does Rule 2.425 have on parties’ ability to obtain a protective order?  According to the Rule itself, none.  But I’d be surprised if judges’ opinions on what information should be kept private were not influenced by the views of the Supreme Court as expressed in Rule 2.425.

The Rule also claims that it “does not affect the application of constitutional provisions, statutes, or rules of court regarding confidential information or access to public information.”  I’m not sure how that could be so, but again, we’ll see how courts interpret that subsection.

The Court is also amending quite a few other Rules to accomodate Rule 2.425.  Changes are being made to the Rules of Civil Procedure, particularly with regard to filing discovery documents, the Family Law Rules of Procedure, the Rules of Appellate Procedure, Probate Rules, and to a lesser extent, Criminal Procedure and Small Claims Rules, as well as several forms.

The amendments to those rules and forms are listed below. 

Continue Reading A Primer on the New Privacy Rules for Florida Court Filings

FL Supreme Court Image_from_istockphoto_paid.jpg

The Florida Supreme Court’s precedential decision last Thursday in Kaaa v. Kaaa, No. SC09-967, could make life a bit more complicated Florida family lawyers.  Just what you needed, I’m sure!

The Court denied a petition for rehearing, and revised its September opinion, in an attempt to clarify a pretty confusing discussion.  The basic holding, which I think counsels a fairly common sense analysis of who owns what, remains unchanged. 

Here’s a thumbnail sketch of the facts:  

Mr. Kaaa bought a house for $36,500 just before marrying Mrs. Kaaa, put $2000 down and mortgaged the rest.  He was was the sole owner on the property deed.  Mr. and Mrs. K were married for 27 years, and like most couples, they used their marital funds to make mortgage payments.  They also used marital funds to improve the property by $14,400.  The Kaaas owed a little less than $13,000 in mortgage debt on the property at the time of distribution, having refinanced a few times.  The property had a stipulated value at that time of $225,000.

Here’s the Legal Issue

The house itself is non-marital property because Mr. K bought it before the marriage and held it in his own name.  But marital funds paid for all but $2000 of the house (that was also disputed) and enabled the Kaaas to continue living in the house and enjoy a tremendous value increase as a result of market forces.  Does Mr. K’s $2000 down payment entitle him to keep the $207,000 of the $225,000 present value of house?  The 2nd DCA (in Lakeland) said yes.  But under Stevens v. Stevens, a 1995 decision of the 1st DCA (in Talahassee), the answer would be no.  The Florida Supreme Court came down on the side of the 1st DCA.   

Here’s the Court’s Reasoning:

The Equitable Distribution Statute, Fla. Stat. §61.075, says “appreciation of nonmarital assets” is marital property if the appreciation is attributable to “the efforts of either party during the marriage” or “the contribution to or expenditure thereon of marital funds…”  Price increases due to market forces do not result from anyone’s efforts (in the way that, say, a value increase attributable to an addition that Mrs. K built herself would).

“Contribution[s] to or expenditure[s] thereon of marital funds” could be thought to refer to value increases resulting from actual improvements to the property that, instead of being created through the non-owner spouse’s efforts, are paid for with marital funds (as where the Ks use marital funds to pay a contractor to build the addition instead of having Mrs. K build it herself).  But the Supreme Court rejected that reading of the statute, finding that the literal meaning of the phrase also includes “expenditure…of marital funds” to make mortgage payments.  The Court particularly noted that equitable distribution is the default rule, and it was inclined to read ambiguous language in that light.  

Here’s the Rule:

Appreciation of nonmarital property that results solely from market fluctuations (which the Court referred to “passive appreciation”) can be marital property if:  (1) “marital funds were used to pay the mortgage”; and (2) “the nonowner spouse made contributions to the property”.  Once it is determined that a non-marital property’s value passively appreciated during the marriage and criteria (1) and (2) above are satisfied, trial courts should calculate how much of the appreciated value is subject to equitable distribution based on the percent of the property that was held unencumbered by the owner spouse at the time of the marriage. 

So, for example, suppose Mr. K had held equity equal to 50% of the property’s value at the time of marriage, with 50% mortgaged.  If the property value had increased by $100,000 during the marriage, $50,000 would be subject to equitable distribution, and the remaining $50,000 would go to Mr. K as his non-marital property.  The amount subject to equitable distribution is further reduced by any debt obligations remaining on the property.  So in this example, if the Kaaas still owed $40,000 on the mortgage, only $10,000 would be subject to equitable distribution.