Legal Question in Family Law in Florida

I am currently in an ongoing fight with the DOR in a modification hearing.

The hearing officer issued an order, I filed exceptions to the report and recommendation of the

hearing officer within the 10 days provided by law.

However the judge signed the order the same day of the hearing and did not wait the 10 days as he should have.

I have a hearing set on 11-16-09 on the exceptions to the report and recommendation but they still went ahead and issued an amended garnishment and increased my child support.

The 5th DCA stated this is a recent case:

SIMMONS v. SIMMONS Case No. 5D08-2138

we reverse because the trial court failed to hold a hearing on Husband�s

timely filed exceptions to the magistrate�s report before entering the final judgment.

See Fla. Fam. L. R. P. 12.490(f) (providing that if exceptions are filed to a general

magistrate�s report, they �shall be heard on reasonable notice by either party or the

court�); Yoxsimer v. Yoxsimer, 918 So. 2d 997 (Fla. 2d DCA 2006) (holding that rule

12.490(f) requires a mandatory hearing on timely filed exceptions to a magistrate�s

report and explaining that this rule derives from Florida Rule of Civil Procedure 1.490(h),

which also requires a mandatory hearing on timely filed exceptions to a magistrate�s

report); Knorr v. Knorr, 751 So. 2d 64, 65-66 (Fla. 2d DCA 1999) (observing that Florida

Family Law Rules of Procedure 12.490(f) and 12.492(g) derive from Florida Rule of Civil

Procedure 1.490(h) and that all three contain substantially the same provisions requiring

a mandatory hearing on exceptions to a master�s report and recommendation); McBride

v. McBride, 637 So. 2d 938, 940 (Fla. 2d DCA 1994) (�First, the trial judge erred when

he denied Wife�s timely objections to the master�s amended report without an

evidentiary hearing.�); see also L.P. v. State, 995 So. 2d 1140, 1141 (Fla. 5th DCA

2008)

(�[W]e write to re-emphasis [sic] the requirement that a hearing must be held on

timely-filed exceptions to a magistrate�s report.�);

Accordingly, we reverse the final judgment under review and remand this case to

the trial court to conduct an appropriate hearing on the exceptions to the magistrate�s

report filed by Husband.

REVERSED and REMANDED.

Can or should I file a writ of certiorari or writ of prohibition to stop the amended child support order.

There is also a motion to dismiss that was filed on 12-8-08 and server under subpoena by the Leon county sheriff that the DOR defaulted on and a default was entered by the court but yet they still go forward with this crazy nonsense.

What do you think I should do?

1 Answer from Attorneys

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