ADMINISTRATIVE ORDERS FOR THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE & OSCEOLA COUNTIES, FLORIDA
Update by Jennifer Schulte
As one of his last official duties in office as the Ninth Judicial Circuit Chief Judge, Chief Judge Belvin Perry, Jr. signed several Administrative Orders on August 5, 2014. Judge Frederick J. Lauten has replaced nine-term Chief Judge Belvin Perry, Jr., as of September 1, 2014. There are four specific Administrative Orders effective immediately that as a family law attorney practicing in these two counties I find especially significant.
- Amended Order Governing Related Family Cases (No. 2014-09-01) addresses the overwhelming desire of the Florida Supreme Court and of this Ninth Judicial Circuit to attempt the implementation of “one family/one judge model” when dealing with various court matters.
- Pursuant to Florida Rule of Judicial Administration 2.545(d)(1)(A)-(D), a family case is related when:
|(A) it involves any of the same parties, children, or issues and it is pending at the time the party files a family case; or(B) it affects the court’s jurisdiction to proceed; or(C) an order in the related case may conflict with an order on the same issues in the new case; or(D) an order in the new case may conflict with an order in the earlier litigation.
An example of what the Court means in Section 1 would be a divorce proceeding where there is a pending domestic violence injunction matter involving the mom and dad. Another example could be where there is an ongoing department of revenue child support enforcement matter and now someone has filed a petition to determine paternity. But there can be more than two related family law cases. I previously had a client where there was a divorce action pending, a domestic violence injunction against the mom and another one against the dad, a juvenile dependency action and a non-family law case wherein my client was the alleged defendant in a criminal battery against the other spouse. In that situation the divorce judge handled both of the domestic violence cases as well. A separate judge handled the juvenile dependency matter but the Court’s emergency ruling to protect the children superseded my domestic relation’s judge as far as the timesharing matter. And a third judge handled the criminal matter.
|Pursuant to Family Law Rule of Procedure 12.004(a)(1), all related family cases must be handled before one judge unless impractical.
In my example above it was practical for my domestic violence judge to also hear the divorce case since the cases involved the same parties. If the domestic violence events had occurred in a different county (I have had cases like this) then the Court will usually keep the cases separate instead of transferring the case into a different jurisdiction.
|and 4. The Judges are supposed to consult with each other on the practicality of one judge handling all related family cases for the reasons stated above, to confer with each other for purposes of case management and coordination.
Judges are supposed to work together to obtain an overall more efficient handling of their caseload.
|Additionally, the court or the party who filed the Notice of Related Cases may coordinate a case management conference between the parties and the judges hearing the related cases under rule 12.200 to:(1) consolidate as many issues as is practical to be heard by one judge;(2) coordinate the progress of remaining issues in order to facilitate the resolution of pending actions and avoid inconsistent rulings;(3) determine the attendance and participation of minor children in the proceedings; and(4) determine the access of the parties to court records if a related case is confidential pursuant to Rule of Judicial Administration 2.420. Further, pursuant to rule 12.003(b)(1), the court may order joint hearings or trial of any issues in related family cases.
When filing a new case in the Ninth Judicial Circuit you must file a Notice of Related Cases wherein you identify if there are any related cases. You must serve a copy of this document on the administrative judge, the opposing party, and the judge assigned to a related case. As the case progresses you need to amend, when appropriate, this document. It is important that any party to the case(s) is served with a copy of this document. For example, if you have a department of revenue child support enforcement case and then you file a petition to determine paternity, in the Notice of Related Cases you will address the related case and then make sure to serve a copy of the notice on the Department of Revenue Child Support Enforcement attorney, the opposing party, the administrative judge and the judge assigned to your paternity matter.
|Judges hearing a family case are authorized, pursuant to Family Law Rule of Procedure 12.004(a), to access and review the files of any related case, whether pending or closed.
That means when you are in a hearing on a motion for contempt related to non-payment of child support, the Judge hearing your contempt motion is able to electronically access the arrearage affidavit filed in the department of revenue child support enforcement case. I have had many a case where we are addressing a timesharing matter or child support issue and the Court is able to pull information about the parties. Sometimes a party’s criminal record or driver’s license suspension is a matter of interest in a family law proceeding and the Court is able to access records related to same.
|After entry of a final judgment on domestic violence injunction, and by Order of the Family Court Division Administrative Judge, only those domestic relations cases with an active related domestic violence case shall be assigned/reassigned to the domestic violence subdivision that entered the final domestic violence injunction.
The Court is attempting to ensure that if there are ongoing issues then the domestic violence judge is going to hear the domestic relations matter. I have had countless divorce cases that have been transferred to the domestic violence judges due to ongoing domestic violence matters. If, however, you have a pending family law matter and a domestic violence injunction is not granted then the case will not transfer to the domestic violence court just because there was a temporary injunction in place.
|The Clerk of Court is responsible for identifying overlap between related family cases and to notify the Court Administration Related Case Liaison who then will complete a thorough review of the matter and advise the judge pursuant to rule 12.004(d) of the related legal proceedings, the legal issues involved, and the administrative information.
This is a large task and it is made all the more difficult by parties not complying with the rule in failing to file the appropriate Notice of Related Cases. Now that the initial filing of a family law matter can be done electronically, the room for error has greatly diminished. If an attorney or their office accidentally forgets to include a Notice of Related Cases, the family law case will not be opened by the clerk until this is corrected.
|Pursuant to Family Law Rule of Procedure 12.006, each Clerk of Court for the Ninth Judicial Circuit shall ensure that copies of court orders are filed in related family cases involving the same parties. The Clerk must record all relevant case numbers on the orders and a separate copy must be placed in each related case file.
I recently had a domestic violence injunction case in one county where the parties had a related family law divorce matter in a completely different county. The Court had to instruct counsel to file a copy of the domestic violence permanent injunction paperwork in the divorce case because the injunction dictated specific parenting plan requirements which were in conflict with the divorce final judgment. Because each of those cases were in two separate counties, the clerk of court would not have the knowledge to identify those related cases.
- Amended Administrative Order Establishing The Ninth Judicial Circuit Courtroom Decorum Policy (No. 2003-07-01) addresses the required behavior of attorneys and parties who appear in court (and all persons at the counsel table).
- Stand when Court is opened, recessed or adjourned. Stand when addressing, or being addressed by the Court. When making opening statements, closing arguments or examining witnesses, do not approach the witness without the Court’s permission.
You will often hear the bailiff say “all rise, the honorable >>>>> presiding, Court is now in session” or something to that effect when the Judge walks into the courtroom. Sometimes you will even hear the Judge say that you can remain seated. It is always, always best to stand any time the Judge is standing. Just stand up and let the Judge or bailiff tell you when to sit back down. Showing respect to the Judge is not only a requirement but it goes a long way in making a good impression during your family law matter.
|Address all remarks to the Court, not to opposing counsel or the opposing party. Avoid disparaging personal remarks or acrimony toward opposing counsel and remain wholly detached from any ill feeling between the litigants or witnesses. Refer to all persons, including witnesses, other counsel and the parties by their surnames and not by their first or given names unless the permission of the Court is sought in advance.
The above three requirements are mostly aimed at your attorney and how the attorney is required to behave in front of the Court. I have found it beneficial in some court proceedings to provide the Judge, the court reporter and opposing counsel with a “cheat sheet” that has an explanation of nicknames, identifies which person is a party/child and identifies relevant witnesses (i.e., Skip is the youngest child named Jonathan; Dr. Pierce is the child’s therapist, etc.). While presenting the case and/or questioning the witnesses the attorney must use the person’s surname and not the nickname. But a witness will often revert to using the first name or the nickname so a cheat sheet is helpful to the Court.
|Only one attorney for each party shall examine, or cross examine each witness. The attorney stating objections, if any, during direct examination, shall be the attorney recognized for cross examination. Counsel should request permission before approaching the bench. Any documents counsel wishes to have the Court examine should be handed to the clerk. Any paper or exhibit not previously marked for identification should first be handed to the clerk to be marked before it is tendered to a witness for his examination; and any exhibit offered in evidence should, at the time of such offer be handed to opposing counsel. No exhibit, whether marked for identification or not, shall be held in any manner, or placed in any position in the courtroom, that would allow the trier of fact to see the exhibit unless it has been admitted into evidence and permission to publish the exhibit to the jury has been obtained from the Court.
I find that number 7 is difficult for counsel and parties alike. I have had hearings previously where a pro se litigant actually had photos in a frame on his desk facing the Judge in an effort to invoke sympathy from the Judge. I have had opposing counsel spread documents on their counsel table knowing that the documents would not be admitted into evidence but rather in an effort to illicit some type of response from the Court by merely seeing the nature of the documents. The Court is not amused, impressed or moved by such blatant non-compliance with these rules.
|In making objections, counsel should state only the legal grounds for the objection and should withhold all further comment or argument unless elaboration is requested by the Court. When examining a witness, counsel shall not repeat or echo the answer given by the witness. Offers of, or request for, a stipulation should be made privately, not within the hearing of the trier of fact.
Some of these rules are geared more for jury trials and less for a family law setting where you are in front of the judge alone. It is often difficult for attorneys, especially in family actually discuss whether the parties have stipulated to a matter in open court while handling a family law matter but if the Court has not directed the conversation, the administrative order dictates that counsel must discuss same outside the hearing of the Judge.
|In opening statements and in arguments to the trier of fact, counsel shall not express personal knowledge or opinions concerning any matter in issue. Counsel shall admonish all persons at the counsel table who make gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses, or at any other time. This behavior is strictly prohibited. All parties, attorneys and witnesses should refrain from interrupting or talking over one another. Counsel shall refrain from attempting to make a re-argument after the Judge has ruled.
In a recent trial the opposing attorney in her closing argument started telling the Court what her grandmother always said about “such and such” and basically expressed her opinion related to the matter at hand. That is not acceptable behavior according to the order herein. I have to go over number 12 with many a client prior to a hearing and remind my client to basically keep a poker face during the proceedings. I know how difficult it is for me to do this when the other side is spewing lies so I can only imagine how much more difficult it would be to sit there as a party to the case. The Court does not want to be distracted by a party’s commentary under their breath, etc.
|Counsel shall complete resolution negotiations and advise clients of their settlement options in advance of court hearings.
The Judge understands that sometimes parties cannot come to a full settlement until 5 minutes before trial starts but clearly it is the best use of everyone’s time for the parties to settle prior to the start of trial and not during the actual time slotted for court. Judge’s calendars fill up quickly and it can be extremely difficult to get the appropriate hearing time for your pending matter. That is why as soon as my client settles we contact the Judge’s Assistant immediately so they can open that time slot up on the calendar for another proceeding.
|No tobacco use in any form is permitted. No bottles, beverage containers, paper cups or edibles are allowed in the courtroom, except as permitted by the Court. No gum chewing is permitted. Cell phones and pagers should be turned off or in vibrate mode. Computers should be used with audio off.
If you have diabetic or other dietary needs please be sure to let your attorney know prior to the hearing so they can request permission for accommodations for you. The Court will accommodate many different scenarios including the need to take breaks to pump for breastfeeding mothers and other situations that require a break from the proceedings.
|All counsel should provide a copy of this policy to clients prior to coming to court. Pursuant to Family Law Rule of Procedure 12.407, no children are allowed in the courtroom, waiting area or adjacent hallway without prior approval of the court, unless the child(ren) is a party to the action.
It is a distraction when people bring their children to a court proceeding in which the child is not a party to the action. The Orange County Courthouse has A Place for Children that is located on the second floor, room 270, and is a licensed drop-in child care center for children whose families have business with the court (hours of operation are 8:00am – 5:30pm).
- Administrative Order Establishing Ninth Judicial Circuit Court Domestic Court Guidelines (No. 2014-19).
- If an ex parte or short matter is to start late or be covered by a different division, without prior notice, attorneys and litigants shall be made aware through the posting of a note on the hearing room door.
|All circuit civil judges shall start ex parte, short matter and regular hearings on time, or as soon as practicable, and all judges shall strictly enforce allotted hearing time between attorneys except for good cause shown. In the event that a party seeks to cancel a hearing that has been previously scheduled with the Court, the party must immediately notify the judge’s judicial assistant and file a notice of cancellation with a copy to the judicial assistant as soon as it is cancelled.
The above are ordered in an attempt to assist cases to move forward efficiently. Previously, an attorney might set three or more motions for a 15 minute time slot hearing. Any hearing must afford each party/counsel the same amount of time to be heard so a 15 minute hearing is really only 7 ½ minutes per side (really more like 6 ½ with 2 minutes for the Judge to provide a ruling).
|A mandatory meet and confer process is hereby established, as set forth below, for all motions to be set for hearing in the domestic division and must occur before scheduling the hearing, except for the following motions: injunctive relief without notice; judgment on the pleadings; or summary judgment.
The specific requirements that attorneys must follow for number 4 are laid out in the order. This requirement is a result of too many hearings being held in which the defending party might not have even been afforded the opportunity to “cure” the issue at hand. The rule is very detailed and lays out step by step the process of conferring/scheduling/coordinating a hearing. Be aware that this may have an impact on the speediness of obtaining a hearing on your family law matter.
|Counsel is required to provide the court (and opposing counsel) with courtesy copies of any memoranda, case law or any other materials on which counsel may rely at a scheduled hearing at least three (3) court days before the scheduled hearing. A party seeking to schedule hearing time shall check the Judicial Automated Calendaring System (JACS) via the Ninth Judicial Circuit website https://www.ninthcircuit.org/ for available time slots. The opposing party may not refuse to cooperate with setting the hearing just because they object to the hearing being set.
Number 6 in the order provides step by step instructions for the attorney when coordinating and scheduling hearing time. It details what to do when the other side is not responsive and also when you are not able to agree on the hearing time.
Number 7 and 8 of the order discuss the use of electronic technology and how these have become the norm for family law cases. Attorneys are required to copy opposing counsel when communicating with the judicial assistant in coordinating hearing time and must include the case name, number and attorney name assigned to the case.
- Amended Order Implementing A Standing Temporary Order for Dissolution of Marriage Actions With or Without Minor Children, Orange & Osceola Counties (No. 2004-05-04).
There are only a few changes to the previous Standing Temporary Order dealing with divorce proceedings.
|Page 3, Section 2. Contact with Both Parents: Shared Parenting.(a) …However, until a court order is entered each party is entitled to the same rights to timesharing with the children.
The above is the last sentence added to that subparagraph (a) but it is a huge addition. This addition demonstrates how progressive the Ninth Judicial Circuit continues to be despite the legislature not passing the equal timesharing statute. In Orange and Osceola counties the judges are increasingly ordering equal timesharing between parents whenever it is practical to do so. As in, if the parents live in nearby counties or in close enough proximity and in taking into account the parent’s work schedules, the court is likely to order some form of equal timesharing. This also means that parents are ordered to come up with a temporary equal timesharing schedule during the pendency of the case despite their aversion in doing so.
|Page 4, Section 4. No Relocation of Children or Foreign Travel.…Neither party shall allow the children to travel outside the country without written agreement of the parties or Court order.
If you have pre-arranged travel/vacation prior to the initiation of the family law proceeding you will need to obtain the other party’s permission or Court order to take the children out of the country. If you have a yearly cruise planned over the children’s spring break, for example, you should let your attorney know immediately so they can start working on getting an agreement/Court order.
|Page 4, Section 5. Child Support.In general, the law requires child support to be paid from the date the parties separated, which is nearly always a date before the petition was filed. Therefore, to avoid building up an arrearage in child support, the parent with a support obligation according to the guidelines must make voluntary payments of child support to the other parent prior to the entry of an order requiring payment of support.
This is a change from the previous administrative order in that it is possible for the parent with the majority of the timesharing to actually owe child support to the other parent due to a disparity in income or otherwise. Previously the order contemplated that the “non-custodial” parent would always be the payor.
|Page 5, Section 6. Conduct of the Parties During the Case; Sanctions.Any unwanted physical contact between a husband and a wife is a crime and is vigorously prosecuted. Food, shelter, utilities, transportation and necessary medical expenses shall continue to be paid as they were during the intact marriage until further order of the Court or written agreement of the parties. Failure to obey this provision and/or any other part of this Order may result in injunction orders and/or contempt proceedings.
The language detailing what exactly the parties are required to continue to pay for during the proceedings has changed and includes additional items that are commonly covered by the martial resources during an intact marriage. The administrative order is clear that if a party stops covering these expenses then there may be injunctive relief or contempt proceedings. This is especially critical when contemplating how the party with less resources/lower financial ability is going to separate from their spouse prior to any temporary relief hearing. When Judge Evans discussed this section during the Family Law Inns of Court meeting recently he stated that the reason behind this change and others in this administrative order was to diminish the leverage that one party has over the other party in finances or with timesharing during a family law case. The goal of the committee that worked on this and other administrative orders was to provide parties and their counsel with rules, regulations, orders and clarity in how to maneuver through the process and to limit the necessity for temporary relief hearings.
|Page 5, Section 7. Disposition of Assets; Accounting.…Nothing herein prohibits the Court from allocating attorney’s fees and costs paid out of marital funds to either party in equitable distribution as allowed by law.
The Court will take into account where each party acquired the necessary funds to retain and maintain counsel throughout the case. The Court has the power to order a party to liquidate an asset or move funds around in order to provide resources for each party. This again is a means to do away with one party leveraging financial control over another party in the hiring of counsel.
|Page 5, Section 9. Additional Debt.Neither party will incur additional debt which would bind the other party, pledge, encumber and/or mortgage any assets, except by written consent of the parties, order of this Court or as provided herein. The parties are urged to temporarily stop using joint credit cards. This does not prohibit use of joint credit for absolute necessities but only as a last resort. No joint credit cards may be cancelled or modified absent agreement of the parties or court order.
This section is designed to inform the parties that while the use of joint credit is acceptable in emergency situations, it should not be used to buy non-essentials. I have told clients that this might apply to the purchase of groceries when the other party removes all monies from the joint bank account and cancels the use of any debit cards. This would likely not be a good rule to cite if you want to purchase a new handbag/purse or get your nails done.
|Page 6, Section 10. Sanctions for Failure to Comply with Court Rules and This Order.If a party fails to comply with the rules requiring the production of financial records and other documents, or fails to answer interrogatories or attend a deposition, or otherwise fails to comply with the rules requiring disclosure or discovery, or if a party fails to comply with the terms of this Order, that party will be sanctioned by an order the Court, which may include a monetary payment to the other party.
The Court wants to impress upon the parties the importance in complying not only with disclosure requirements but also each section of this administrative order. The administrative order concludes with reminding counsel and their parties that they must comply with the other relevant administrative orders in effect.