Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

What happens when a party objects to a referral to the general magistrate in a Florida family law case? In order for a general magistrate to hear a case, all parties must consent to the referral. This issue arose in the case Humphrey v. Humphrey, 1D18-752 (Fla. 1st DCA May 8, 2020).

Soon after the parties were married, they committed a murder for which they were both incarcerated. The wife filed for divorce several years later while both parties were still incarcerated. The husband filed an injunction to prevent the wife from speaking about the murder, apparently in an effort to protect his ongoing pursuit of post-conviction relief. The husband gave to the department of corrections his written objection to the referral to the general magistrate for mailing within the deadline for objection. However, the document was not docketed by the clerk until after the deadline.

The parties subsequently appeared by phone at a hearing before the magistrate at which they agreed to dissolve their marriage. A follow-up final hearing was held by phone and the magistrate entered a report and recommendations that noted the husband’s written objection to the magistrate, but waived his objection based on his prior appearance before the magistrate and agreement to dissolve the marriage. The magistrate recommended the injunction be denied since the magistrate was not permitted to hear the request per rule 12.490(c), Florida Family Law Rules of Procedure. The husband filed timely exceptions to the magistrate’s report but the judge entered an order ratifying the report nonetheless. The husband appealed.

Noting that because of the mailbox rule, the husband’s objection to the general magistrate referral was timely (and holding that but for his status as a prisoner, this would not have been the case), the appellate court reversed the trial court’s order. The appellate court held “When a party properly objects to a referral to a general magistrate with a timely filing under rule 12.490, the magistrate has no more authority to proceed, and the magistrate cannot have a hearing to see if the objecting party wishes to reconsider. Once the objection is filed, the implied consent to proceeding before a magistrate has ended, and therefore, there is no ability under rule 12.490 for the magistrate to act any further. Unlike an Article V judge, a magistrate has no inherent authority but has only the authority permitted by rule [. . .] Here, once Appellant withheld his consent to the referral to the magistrate, the magistrate was unable to act, and the case should have remained with the circuit judge.”

Making sure you timely file your objection to a referral to a general magistrate is important. To understand how a general magistrate may be helpful in your case, schedule a consultation with a Miami family law attorney to go over your case.