PETER SCOTT, APPELLANT,
v.
FREIDA K. SCOTT, APPELLEE

Fla. 4th DCA | 1996-02-14
No. 94-3608
POLEN and PARIENTE, JJ., concur.
667 So. 2d 975 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 2 cases

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Synopsis

The appellant husband challenges a commitment order entered for failure to pay alimony. The Florida appellate court reversed because the trial court entered the commitment order before ruling on the husband's timely exceptions to the general master's report, violating Florida Rule of Civil Procedure 1.490(h).


Holding

Yes. The trial court violated Florida Rule of Civil Procedure 1.490(h) by entering the commitment order before hearing the timely filed exceptions. A court may take appropriate action on a general master's report only after hearing exceptions.


Headnotes

[1] A trial court may take appropriate action on a general master's report only after hearing timely filed exceptions.

[2] An order of commitment entered before a hearing on timely filed exceptions to the master's report is procedurally improper.

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Key Quotes

“Florida Rule of Civil Procedure 1.490(h) requires that a trial court may take appropriate action on a general master's report only after the court hears timely filed exceptions.”

Establishes the controlling legal standard that the trial court violated

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Facts & Procedural History

The husband was held in contempt for failing to pay alimony. A general master conducted a hearing and recommended commitment, finding the husband owed…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
WARNER, Judge.

WARNER, Judge.

The appellant challenges a Final Order of Commitment entered by the trial court. He contends that the court erred in entering the order prior to ruling on exceptions from the general master’s report recommending commitment. Based on Moskowitz v. Moskowitz, 611 So. 2d 615 (Fla. 4th DCA 1993), we reverse.

The husband had previously been held in contempt by the trial court for failure to pay alimony to the former wife. On September 22, 1994, the wife moved for commitment based on the order of contempt. A general master conducted a commitment hearing on October 18,1994, after which the master filed a written report finding that the husband should have paid $14,625.25 since the contempt order issued. Instead the husband had paid nothing. The master further found that the husband was unemployed and receiving unemployment compensation but that he was a shareholder of two corporations that had assets to which he had some access. Moreover, he had ownership interests in his residence and other property. The master recommended commitment. On October 31, 1994, the husband filed exceptions to the general master’s report. Before hearing the exceptions, the trial court signed an order of commitment on November 3, 1994. Nevertheless, on November 8, 1994, the trial court granted the husband’s exceptions and set a hearing for November 17,1994. At the hearing, after considering the exceptions, the trial court ruled from the bench that it was satisfied with the master’s findings that the husband had the present ability to pay.

Despite the fact that the hearing on the husband’s exceptions was held after the court rendered its order of commitment, the trial court did not vacate the prior order or issue an additional order of commitment. Further, the written order of commitment entered on November 3, 1994, does not contain an express finding that the husband had a present ability to pay the purge amount. The husband appeals the November 3, 1994, order of commitment.

In Moskowitz, we held that Florida Rule of Civil Procedure 1.490(h) requires that a trial court may take appropriate action on a general master’s report only after the court hears timely filed exceptions. In the instant case, the order was entered before the timely filed exceptions were heard.

The trial court should have vacated the November 3rd order of commitment when it entered its order setting the exceptions for a hearing. It then could have reentered the order of commitment after the hearing on the exceptions and avoided the procedural quandary and this appeal. Yet it did not, thus raising some concern on our part whether its oral ruling was its final determination on the matter. We therefore reverse and remand. Because of the passage of time during this appeal, a new hearing must be held. If the trial court determines that the order of commitment should be entered, the order should contain a finding of present ability to pay. See Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985).

POLEN and PARIENTE, JJ., concur.


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Citator

Cited By

  • Deirdre Murphy v. Murphy, 912 So. 2d 353 (Fla. 3d DCA 2005)
    …), emergency motion for release of funds. Because the trial court entered its order without conducting a hearing on the husband’s exceptions, we reverse. Fla. R. Civ. P. 1.490(h); Lehrman v. Vondra, 786 So. 2d 673 (Fla. 3d DCA 2001); Scott v. Scott, 667 So. 2d 975 (Fla. 4th DCA 1996); Berkheimer v. Berkheimer, 466 So. 2d 1219 (Fla. 4th DCA 1985); see also Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987)(master’s findings cannot be overturned by the trial court unless the findings are clearly erroneous)…

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