author: WALLACE, Judge.

text:
    In the Interest of J.P., a child. J.P., Petitioner, v. Department of Children and Family Services, Guardian Ad Litem Program, and P.S., Respondents.
    No. 2D08-5486.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.

      Charles Michael Kelly, Bradenton, for Petitioner.
    Jeffrey Dana Gillen, Statewide Appeals Director, and David G. Taylor, Children’s Legal Services, West Palm Beach, for Respondent Department of Children and Family Services.
    Jennifer S. Paullin, Appellate Counsel, Orlando, for Respondent Guardian ad Li-tem Program.
    Mira Staggers White, Murdock, for Respondent P.S.
   WALLACE, Judge.

J.P. (the Father) is the father of the minor child, J.P. The Father petitions this court for a writ of certiorari to review the circuit court order that granted P.S.’s motion to intervene as a party. P.S. (the Maternal Grandmother) is the child’s maternal grandmother. Because a grandparent cannot intervene as a party in a dependency proceeding, we grant the petition and quash the circuit court’s order.

During the dependency proceeding, the circuit court granted the Maternal Grandmother’s motion to intervene as a party. In his petition for certiorari review, the Father argues that the circuit court’s order should be quashed because the Maternal Grandmother could intervene as a participant in the dependency proceeding, but not as a party. The Department of Children and Family Services (DCF) correctly concedes error based on J.L. v. G.M., 687 So.2d 977 (Fla. 4th DCA1997).

A petition for writ of certiorari is appropriate to review an order granting a grandparent’s motion to intervene as a party in a dependency proceeding. Id. at 977. The jurisdictional requirements for certiorari review are met in this case because the circuit court’s order may reasonably cause material injury of an irreparable nature. See id. (finding that orders granting a grandparent’s motion to intervene as a party would interfere with [the parents’] parental rights, [and] also with the actions deemed necessary by [DCF] to prevent risk to the child while the dependency case is pending). Thus we turn our attention to whether the circuit court departed from the essential requirements of the law.

In dependency proceedings, a party is defined as the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child. 39.01(50), Fla. Stat. (2007); see also Fla. R. Juv. P. 8.210(a). The plain language of the statute does not include grandparents within the definition of a party. Here, as in J.L., the circuit court

departed from the essential requirements of the law by allowing persons who do not fall within the definition of “parties” to intervene. The granting of party status to these relatives was also contrary to Florida’s strong public policy against unwarranted interference with the parenting decisions of an intact family unit.

687 So.2d at 977-78.

Accordingly, we grant the Father’s petition for writ of certiorari and quash the circuit court’s order. On remand, the circuit court may consider whether the Maternal Grandmother should be allowed to intervene as a participant in accordance with section 39.01(49) and Florida Rule of Juvenile Procedure 8.210(b).

Petition granted, order quashed, and case remanded.

VILLANTI, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


source: Caselaw Access Project

author: WOLF, J. BENTON, J.,

license: Public Domain

text:
    Leo DORBAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3741.
    District Court of Appeal of Florida, First District.
    May 11, 2009.
    Rehearing Denied June 15, 2009.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant appeals from his judgment and sentence for second-degree murder. He raises three issues on appeal: (1) whether the trial court erred in denying his motion for judgment of acquittal based on insufficient evidence to overcome his claim of an accidental shooting; (2) whether the trial court abused its discretion by excluding the testimony of Dr. Greer regarding appellant’s calm demeanor on the night of the shooting; and (3) whether the trial court erred in admitting hearsay testimony of several witnesses pursuant to the “state of mind” exception to the hearsay rule. We find that there was sufficient evidence to support the charge. We, therefore, affirm as to this issue without further comment. We agree with appellant as to issue 2 and address it, even though it is unclear that it was preserved, in order to guide the trial court in conducting a new trial. As to issue 3, we agree with appellant and reverse and remand for a new trial.

On July 5, 2006, appellant, by way. of a grand jury indictment, was charged with first-degree murder of Dawn Luciano. Appellant was accused of shooting and killing the victim, Luciano, a young woman who lived with him as a boarder. On Api-il 12, 2007, appellant proceeded to trial, which ended in a hung jury.

On April 12, 2007, during the first trial, appellant sought to introduce the testimony of Dr. Richard Alden Greer, a psychiatrist, regarding appellant’s post-shooting demeanor. During the first trial, and again in the second trial, the State placed heavy emphasis on appellant’s “calm” demeanor following a traumatic shooting. Appellant sought to introduce Dr. Greer’s testimony in an effort to characterize appellant’s “calm” demeanor as one signifying stress.

Dr. Greer’s testimony was proffered for the record. During the proffer, Dr. Greer explained that he had been a board certified psychiatrist for over 17 years. The State accepted Dr. Greer as an expert in forensic psychiatry. Thereafter, Dr. Greer stated that he had reviewed (1) appellant’s 911 phone call on the night of the shooting, (2) depositions of law enforcement officers regarding appellant’s demeanor on the night of the shooting, and (3) police reports noting the officers’ observations of appellant on the night of the shooting. Based on this review, Dr. Greer opined that appellant appeared to be under stress and “acting in a manner I would characterize as withdrawn, shock like manner; someone who is being flat, withdrawn, unemotional.” Dr. Greer opined that “[p]eo-ple respond to shocking or traumatic events in a variety of ways, from hysteria ... to complete catatonia or complete unresponsiveness.” In addition, Dr. Greer stated that:

A lay person might indicate that someone who had immediately or accidentally or in some way shot another person might be hysterical, might be very upset or tearful or shouting. On the other hand, in my experience and from my listening to [appellant], obviously that was not the case; that he was flat.... That, in and of itself, is an element of shock, surprise, trauma.... They may repeat themselves, as I heard in [appellant’s] voice.

The trial court excluded the testimony, finding that (1) the testimony would cause confusion in the minds of the jury and (2) Dr. Greer had not witnessed the officers’ testimony at the time of trial nor had he examined the defendant; thus, his testimony lacked reliability.

In addition, prior to the first trial, appellant filed a motion in limine seeking to exclude the hearsay testimony of several witnesses who were expected to testify at trial, to include: Kahall Aharoni, Christopher Gordon, Ashley Guba, Danille Kratz, and Judith Poli. After hearing argument on the motion, the trial court entered an Order Granting in Part and Denying in Part Defense Motion in Limine Number One Statements Purported To Be Made By Dawn Luciano, ruling that (1) Kahall Aharoni could testify that appellant had many guns and that Luciano said she was scared without identifying of what she was scared; (2) Christopher Gordon could testify that Luciano told him that appellant was so jealous he slept with a gun under his pillow and that she was planning to leave his home as soon as possible; (3) Ashley Guba could testify that Luciano told her that appellant was a jealous guy and that she was afraid of him; (4) Danille Kratz could testify that Luciano told her she wanted Kratz to take her home to keep appellant from knowing that she had been out with another man; and (5) Judith Poli could testify that Luciano explained to her that appellant was very possessive and got very angry, yelled at her, and that she was scared. Defense objections to this testimony were renewed at the time of the second trial.

As to the trial court’s concern regarding the sufficiency of Dr. Greer’s observations, we would first note that this concern would go as to the weight to be given his testimony rather than its admissibility.

Section 90.704, Florida Statutes (2006), governs the use of expert testimony and provides in pertinent part:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial....

The trial court appears to believe this language limited Dr. Greer to testifying only about matters upon which he had personal knowledge: personal knowledge meaning ‘personal observation of the officers’ testimony regarding appellant’s demeanor the night of the incident. However, the statute specifically authorizes opinions based on data perceived before trial. In addition, when an expert is testifying on evidence he or she has not personally observed, the expert may state an opinion based on record facts through a hypothetical question, as long as those facts are supported by evidence that has been or will be introduced at trial. Atl. Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922); N. Broward Hosp. Dist. v. Johnson By and Through Johnson, 538 So.2d 871 (Fla. 4th DCA 1988); Young v. Pyle, 145 So.2d 503, 504 (Fla. 1st DCA 1962).

Illustrative of this point, in Holt v. State, 422 So.2d 1018, 1019 (Fla. 1st DCA 1982), this court considered whether a trial court erred in permitting an “expert witness to respond to a hypothetical question which assumed facts which were not yet in evidence” and upheld the admission of the testimony stating, “[t]his contention is without merit because sufficient facts to form the basis of the hypothetical question were established later in the trial.”

Here, Dr. Greer testified that he was asked to provide his expert opinion “based on the ... behavior that was documented with regard to [appellant’s] 911 call and the observations of law-enforcement officers at the time after the shooting of Miss Luciano.” The information he reviewed prior to reaching a conclusion included “officers’ statements, depositions, as well as [a review of the] actual 911 tapes.” The evidence considered by Dr. Greer was substantially similar to the evidence later admitted at trial. Based on the foregoing, Dr. Greer could testify that appellant’s calm demeanor was consistent with a person undergoing shock.

As to the confusion Dr. Greer’s testimony might cause, we determine any confusion, if it exists, would not justify exclusion of this testimony.

Section 90.702, Florida Statutes (2006), governs the admissibility of expert testimony and provides in pertinent part:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

Here, the trial court inexplicably reasoned that Dr. Greer’s use of words such as “calm” and “shock” would confuse the jury based on their divergent clinical and lay definitions. Based on section 90.702, the evidence should have been admitted unless it would not assist the trier of fact in understanding the evidence or determining a fact in issue.

In Boyer v. State, 825 So.2d 418, 419-20 (Fla. 1st DCA 2002) (citations omitted), this court considered a trial court’s exclusion of a psychiatrist’s testimony regarding the phenomena of false confessions, stating in pertinent part:

Expert testimony should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions. However, the trial court is not compelled to exclude the expert just because the testimony may cover matters within the average juror’s comprehension. Even though the jury may have beliefs about the subject, the question is whether those beliefs are correct.
.... Had Dr. Ofshe’s testimony been admitted, it would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried. It is for the jury to determine the weight to give to Dr. Ofshe’s testimony, and to decide whether they believed his theory or the more commonplace explanation that the confession was true.

In determining whether evidence will assist the trier of fact in a meaningful way, the first step is considering what the evidence, if admitted, would have tended to explain or prove.

It is clear the State opined that appellant’s calm demeanor was highly unusual and indicative of his cold-blooded nature. It is likewise clear that appellant was attempting to rebut this contention with Dr. Greer’s expert opinion by suggesting that appellant’s calm demeanor was a result of his shock and stress, not his callousness. Dr. Greer’s expert testimony on demeanor in stressful situations would allow the jury to consider two opposing views of the evidence and assist the jury in determining what weight to place on evidence of appellant’s calm demeanor. Thus, it would clearly aid in the jury’s understanding of the evidence. Furthermore, whether appellant’s calm demeanor was indicative of a cold-blooded nature or stress is probative of appellant’s guilt because the jury would be more likely to believe appellant committed the crime in anger and hate if it believed the State’s version of the evidence. If the jury accepted Dr. Greer’s opinion that appellant was in shock and under stress in the hours after the shooting, the jury would be more likely to believe appellant’s accidental shooting defense. As such, it appears the trial court erred in excluding the evidence as it (1) aided the jury in understanding two possible motivations for appellant’s behavior and (2) was probative of appellant’s guilt.

We next address the hearsay statements made by the victim in this ease. Appellee asserts the disputed hearsay statements were admissible pursuant to the state of mind exception to the hearsay rule. Section 90.803(3)(a), Florida Statutes (2006), governs the state of mind exception to the hearsay rule and provides in pertinent part:

(а) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.

The state of mind exception authorizes the use of hearsay to establish the declarant’s state of mind when his or her state of mind is material to the action. Stoll v. State, 762 So.2d 870, 875 (Fla. 2000). When applied to murder prosecutions, the state of mind exception does not typically authorize the use of a victim’s hearsay statements as establishing the victim’s state of mind because the victim’s state of mind is not generally a material issue in a case. Id.

In some homicide cases involving claims of accident or self-defense, the victim’s state of mind may be pertinent, such as where there is an issue of who instigated the confrontation. See Peterka v. State, 640 So.2d 59, 64 (Fla.1994) (Florida Supreme Court allowed hearsay statements of victim to rebut defendant’s theory that victim instigated the fight); see also Huggins v. State, 889 So.2d 743, 757 (Fla.2004) (allowing hearsay statements establishing victim’s state of mind to rebut appellant’s theory that victim willingly left a local shopping area with him); Kingery v. State, 523 So.2d 1199, 1202 (Fla. 1st DCA 1988) (holding that a claim of self-defense will open the door to hearsay statements establishing the victim feared the accused). In the instant case, however, there was no doubt that the initial instigator of the confrontation was appellant. The main relevance of the admission of these statements was to demonstrate the bad character of appellant. Under these circumstances, the admission of the statements constituted reversible error.

We reverse and remand for a new trial.

BROWNING, J., concurs; BENTON, J., concurs in the judgment with opinion.

BENTON, J.,

concurring in the judgment.

I agree that the trial court erred in allowing the hearsay testimony the defense sought to exclude by its motion in limine, and that the conviction must be reversed for that reason. As the majority opinion explains, however, we are not holding that exclusion of Dr. Greer’s testimony required reversal.

      . The record is unclear whether appellant renewed his objection to the exclusion of Dr. Greer's testimony at the time of the second trial.


author: SALTER, J.

text:
    Aulette ANDRIES, Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., Appellee.
    No. 3D08-845.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Rehearing Denied June 16, 2009.

      Bernstein, Chackman, Liss & Rose and Neil Rose and Seth M. Loft (Hollywood); Steven M. Dunn, for appellant.
    Hamilton, Miller & Birthisel and Michael J. Dono and Jerry D. Hamilton and Jennifer Quildón Miller, Miami, for appel-lee.
    Before CORTIÑAS and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   SALTER, J.

Aulette Andries appeals an adverse final summary judgment on her Jones Act and maintenance and cure claims against a passenger cruise line. Ms. Andries alleged that her staphylococcus infection was incorrectly treated by medical staff aboard her ship and that this resulted in the onset of an incurable kidney disease known as “immunoglobulin A nephropa-thy” (“IgA nephropathy”). The circuit court granted summary judgment because it found the plaintiffs experts’ testimony on the alleged causation too novel and investigational to be admissible.

The clinical observations of those experts and scientific literature regarding an association between a staph infection and IgA nephropathy require us to apply the analysis detailed by the Supreme Court of Florida in Marsh v. Valyou, 977 So.2d 543 (Fla.2007). Finding that in this case the plaintiffs medical and scientific evidence constituted a sufficient predicate for admissibility under Marsh, we reverse.

I. “Pure Opinion” versus “New or Novel Scientific Evidence”

Marsh distinguishes two types of expert medical/scientific opinions. When the method of formulating an expert opinion is not “new or novel,” but is instead “widely accepted” and based on established scientific principles and methodology, an expert may render “pure opinion testimony” and it may be based solely on the expert’s training and experience. Marsh, 977 So.2d at 548. Such “pure opinion” testimony is the first category of expert scientific/medical evidence considered under Marsh. The fact that experts may disagree about an opinion or medical diagnosis does not transform an expert’s opinion into a “new or novel principle” in the second category of opinions, nor does that disagreement preclude or limit admissibility. Rather, the resulting “battle of the experts” creates an issue for resolution by the jury (precluding summary judgment on that issue if material to the underlying cause of action).

The second category of expert scientific/medical evidence pertains to expert opinions based upon new or novel scientific tests or methodologies. To be admissible, this type of evidence must have “sufficient indicia of reliability” to satisfy the Frye test. Marsh, 977 So.2d at 549. Under that test, “[t]he proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology.” Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So.2d 1264, 1268 (Fla.2003). Frye issues are reviewed de novo, with “general acceptance determined as of the time of the appeal.” Id.

In Marsh, the issues were whether the court should admit expert testimony linking the trauma occurring in a car accident to the onset of fibromyalgia, and whether the testimony was “pure opinion” or subject to the Frye test. Our Supreme Court determined that the Frye test did not apply, and that even if it did, the expert testimony satisfied that test. That Court concluded that the causation testimony in that case was not new or novel:

The American College of Rheumatology published classification criteria for fibro-myalgia in 1990. Marsh’s experts based their diagnoses and opinions about the cause of her fibromyalgia on a review of her medical history, clinical physical examinations, their own experience, published research, and differential diagnosis.

Marsh, 977 So.2d at 548 (citations and quotation omitted). The Court also concluded that Marsh’s experts did not base their opinions on' new or novel scientific tests or procedures.

Marsh also reaffirmed that admissibility does not depend upon proof of scientific studies “conclusively demonstrating a causal link” or an identification of the “precise etiology” of the medical condition allegedly caused by predicate events. Id., 977 So.2d at 549.

II. The Expert Testimony Regarding Staph and IgA Nephropathy

We next consider the nature of the expert opinions offered by Ms. Andries in this case. Her first expert witness was a physician at the University of Miami specializing in nephrology, the treatment of kidney disease. Based on the witness’s twenty years of experience and his review of records relating to Ms. Andries’s medical care and certain laboratory studies, the physician testified that the relationship between a staph infection and IgA nephropa-thy likely occurred in Ms. Andries’ case and “is well known to all of us even from the early part of our training.” He testified that a staph infection is characterized by antigens that precipitate an immune response and the production of antibodies which are believed to accumulate in the glomeruli (essentially the filtration tubes in the kidney). In certain cases, these deposits accumulate quickly and culminate in an acute, progressive kidney disease of the kind observed in this case. Because other diseases are also associated with IgA nephropathy (including HIV infection, liver disease,- and certain allergies), this physician reviewed Ms. Andries’s medical records and history in order to rule out those conditions.

A second physician and professor of medicine also opined regarding an observed, if idiosyncratic, association between staph infections and IgA nephropa-thy. Applying the so-called “Bradford Hill” criteria for the establishment of causality from epidemiologic data on association of disease and environmental factors, he opined that “the association of staphylococcal infection and glomerulonephritis satisfies these criteria to a sufficient degree to indicate causality.” This expert had practiced medicine for over 40 years, was a specialist in immunological kidney diseases, and had authored numerous peer-reviewed research papers on nephro-pathy and related immunologic injury to the kidney.

Finally, Ms. Andries offered published Japanese (and other) research studies regarding the observed incidence of IgA ne-phropathy following methicillin-resistant staph infections. Among other published articles, a 2003 journal described a case of IgA nephropathy following a patient’s staph infection apparently acquired during knee surgery. A 2004 study described a staph-related antigen as “a new candidate for the induction of IgA nephropathy,” based upon studies using mice as subjects. A 2006 article documented eight cases in which staph infections were the confirmed sources of IgA buildup in the kidney. A number of other medical and scientific articles described the clinically-observed correlation between staph and IgA nephropa-thy and evaluated the mechanisms that might be at work.

The appellee and its experts focused their attention on the developing and in-vestigational status of causation, rather than the expert opinions that an association existed. The appellee’s experts are unquestionably qualified physicians and scientists specializing in the areas of kidney disease, related pathology, and IgA nephropathy, and they testified that “the etiology of IgA nephropathy is unknown.” As noted, however, Marsh does not require scientific literature or other proof regarding the precise etiology. The appel-lee’s experts also criticized Ms. Andries’ experts for rendering opinions that were “too specific” and that did not take into account “many other possible causes” of her nephropathy.

One of the appellee’s experts is a leading physician and researcher regarding IgA nephropathy, and he is the author of a recent electronic article entitled “The Pathogenesis of IgA Nephropathy.” He testified that there is no known cause for IgA nephropathy, that he considers any such studies using mice as subjects to be unreliable, and that “association studies” (such as some of those relied upon by Ms. Andries’ experts) are not scientific proof that a staph infection may cause IgA ne-phropathy:

Q: And was there anything in the Japanese studies that would lend any credence to you to render an opinion that a staph A skin infection can cause IgA nephropathy?
A: No. The only human study that they present is a study looking at kidney biopsy specimens and looking at whether a fragment of the staphylococcal bug appears in the very fine filters of the kidney. And they show that. They don’t show that the IgA molecule that is deposited in these very fine filters is there because of the staph, because of this fragment of bug. They don’t show that the IgA in the kidney has actually got anything to do with this, this fragment of the staphylococcal bacteria.
Q: Okay.
A: It’s what we call an association study.
Q: Can you explain that to me and the court?
A: So what they have done is they have associated one event with another. So — and this is how I teach association, but essentially if we were to look at say a cause for obesity and we were to look, for instance, in Europe at the number of houses that own a television, and we were to look in Africa the number of houses that own a television and then we look at the instance of obesity, we would see that the number of televisions in Europe is very high, the level of obesity is very high. The number of televisions in Africa is very low and the level of obesity in Africa is very low. You can then say that the number of televisions is associated with obesity. It doesn’t correlate or suggest that one is caused by the other, it’s simply an association. And that is the biggest drawback to this Japanese study because it is associating one event with another and there is no causality.

This and other testimony merely focused again, however, on a search for causation. The appellee’s experts did not deny that staph infections are suspected of triggering IgA nephropathy in some persons. In fact, the study to identify a cause is in many ways an acknowledgment that there is some type of biological mechanism at work for staph infections and other triggering events.

In this case, therefore, as in Marsh, the clinical observations (based on Ms. An-dries’ physicians’ “review of her medical history, clinical physical examinations, their own experience, published research, and differential diagnosis”) indicate a link between a staph infection and Ms. Andries’ kidney disease. Because of the general acceptance of those evaluative measures in the scientific community, her experts’ opinions are not “new or novel” within the meaning of Frye and Marsh.

The experts’ disagreements on the nature of the staph-IgA nephropathy link, and the lack of certainty regarding the precise causative process, are genuine disputes that should be decided by a jury. The jurors will give appropriate weight to the experts, their qualifications, and the facts and literature relied upon by each expert in rendering his or her opinion.

Marsh represents the latest effort in a continuing attempt to limit the admission of opinions based on so-called “junk science” or pseudo science. In this case, however, each condition (staph infection and IgA nephropathy) is a recognized diagnosis, and the anecdotal association between the two has been recognized to be worthy of formal and published research. The fact that the precise causation is still under investigation does not make the expert opinions in this case “new or novel” or inadmissible under the more demanding requirements of Frye.

III. Conclusion

The trial court studied this medical mystery diligently and patiently. The appel-lee’s experts are certainly among the leaders in researching the pertinent disease process, and their opinions seem forceful. Nonetheless, in this case qualified physicians for the appellant have expressed an opinion that there is a link between recognized medical condition X and sequela Y, those and other observations have been found worthy of further detailed scientific investigation, and the published results of such investigations have focused on the possible etiology. It is precisely this sort of disagreement that, under Marsh, amounts to a duel of competing — and admissible — pure opinions.

Reversed and remanded for further proceedings.

      . Ms. Andries alleged that she developed a boil on her right leg while an employee aboard the Royal Caribbean vessel "Explorer.” A medical doctor specializing in dermatology expressed an opinion that the infection was more likely than not a "methicillin resistant staphylococcus aureus infection.”

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923) (holding that an early version of a polygraph machine lacked sufficient scientific acceptance and reliability to support the admission of expert testimony interpreting the results.

      . Quoted with approval in Marsh, 977 So.2d at 547.

      . The nephropathy only develops in a fraction of the individuals exposed to a staph infection, and the reasons for differences in susceptibility are not clearly understood.

      . See Meirell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 718 n. 2 (Tex. 1997).

      . The expert testified that the highest incidence of IgA nephropathy occurs in Japan.

      . S. Sharmin, Y. Shimizu, A. Hagiwara, K. Hirayama, A. Koyama, "Staphylococcus au-reus antigens induce IgA-type glomerulone-phritis in Balb/c mice,” J. Nephrology 17:504-511 (2004).

      . A. Satoskar, G. Nadasdy, J. Plaza, D. Sed-mak, G. Shidham, L. Hebert, and T. Nadasdy, "Staphylococcus infection-associated glomer-ulonephritis mimicking IgA nephropathy,” Clin. J. Am. Soc. Nephrologists, 1:1179-1186 (2006).

      . The article appears as part of a licensed online medical textbook, "UpToDate," constantly updated to include current world medical and scientific literature on specific medical topics.

      . Marsh, 977 So.2d at 548.


author: LAWSON, J.

text:
    Mack Reed TEDDER, II, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4510.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.
    Rehearing Denied July 9, 2009.
    Mack Reed Tedder, II, Polk City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

In an attempt to collaterally attack his 38-year-old first degree murder conviction, Mack Reed Tedder, II, filed a declaratory judgment action alleging defects in the underlying information charging him with murder. The trial court dismissed the complaint, and we affirm. Tedder’s collateral attack is time-barred under Florida Rule of Criminal Procedure 3.850, and a defendant cannot circumvent that rule by filing a civil action for declaratory judgment. See, e.g., Hollywood Lakes Section Civic Ass’n, Inc. v. City of Hollywood, 676 So.2d 500 (Fla. 4th DCA 1996) (“The ‘declaratory decree statute is no substitute for established procedure for review of final judgments or decrees. Nor is it a device for collateral attack upon them.’”) (quoting deMarigny v. deMarigny, 43 So.2d 442, 445 (Fla.1949)); Stahl v. Wilson, 121 So.2d 662, 663 (Fla. 3d DCA 1960) (“[T]he declaratory decree proceeding is not a substitute for established procedure for review of final judgments and decrees. Nor is it a device for collateral attack upon them.”); see also State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409-10 (Fla.1998) (explaining that “postconviction relief proceedings, while technically classified as civil actions, are actually quasi-criminal in nature because they are heard and disposed of by courts with criminal jurisdiction,” and indicating that a purely civil action cannot be used to test the legality of a criminal conviction or sentence).

AFFIRMED.

TORPY, J., and PLEUS, JR., R., Senior Judge, concur.


author: BROWNING, J. KAHN, J.,

text:
    D.H., the Mother, in the Interest of J.R., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-3082.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    Rehearing Denied June 26, 2009.

      Edith E. Sheeks and Octavia Edwards, Assistant Regional Counsels, Office of Regional Conflict Counsel, Tallahassee, for Appellant.
    Jennifer S. Paullin, Appellate Counsel for Guardian ad Litem Program, Orlando; and Anthony C. Musto, Special Counsel for Florida Department of Children & Families.
   BROWNING, J.

D.H. (Appellant), the mother of three-year-old J.A.R., appeals the circuit court’s final order terminating her parental rights and committing the child to placement in the custody of Appellee, the Florida Department of Children and Families (Department), for the purpose of adoption. Appellant seeks a reversal of the termination order and a remand for further proceedings before a different trial judge based on allegations 1) that the trial court erred as a matter of law by denying Appellant’s motion to disqualify the judge; 2) that the court abused its discretion by denying a motion to continue the proceedings for 45 days to allow Appellant to have another psychiatric evaluation; and 3) that the evidence completely contradicts the court’s conclusion that Appellant did not substantially comply with her case plan despite Department’s making reasonable efforts to assist her toward reunification with the child. Because we conclude that the “disqualification” issue is dispositive and the trial court reversibly erred by denying the motion for disqualification, we are constrained to reverse the order terminating Appellant’s parental rights and to remand for further proceedings in the circuit court in front of a different judge. Our disposition of the appeal on this ground effectively moots the issue concerning Appellant’s lack of time to submit to another psychiatric evaluation and the denial of the motion for continuance.

Appellant herself was adjudicated dependent and was a minor when the child in question was born. The child was adjudicated dependent in 2006 and placed in Department’s custody for appropriate foster care placement. The trial court approved a child welfare case plan in 2006 with the goal of reunification. More than one year later, Department initiated proceedings against Appellant pursuant to section 39.806(1), Florida Statutes (2007), which states several grounds for terminating parental rights. Grounds for termination may be shown:

[when] the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

§ 39.806(l)(c), Fla. Stat. (2007). Department’s petition for termination alleged that Appellant’s continuing involvement in the parent-child relationship endangered the child’s safety and well-being, in that, irrespective of the provision of services, Appellant failed to understand the appropriate parenting skills necessary to care for her child. Department alleged that the evidence would prove that Appellant is incapable of meeting her child’s daily needs. Specifically, Department contended that Appellant’s intellectual deficits, mixed personality disorder, and parenting skills deficiencies created an unacceptable risk of abuse and/or neglect of her child.

Section 39.806(l)(e)l, Florida Statutes (2007), sets out the following circumstances as another proper ground for termination of parental rights:

When a child has been adjudicated dependent, a case plan has been filed with the court, and:
The child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever came first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due either to the lack of financial resources of the parents or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the approval by the court of a case plan with a goal of reunification with the parent, whichever came first....

Department’s petition alleged that, notwithstanding the approval of a child welfare case plan for Appellant with the goal of reunification, the child continued to be abused, neglected, or abandoned by Appellant, in that she had failed to comply substantially with the case plan in five material respects. The petition stated that Department would show, using the criteria set forth in section 39.810(1)-(11), Florida Statutes (2007), that it is in the child’s manifest best interests for Appellant’s parental rights to be terminated and for the child to be permanently committed to Department’s custody for subsequent adoption.

On May 1, 2008, the child’s father executed a surrender, consent, and waiver of notice for termination of his parental rights pursuant to section 39.0806(l)(a), Florida Statutes (2007). Only Appellant’s parental rights are involved in this appeal. The trial court scheduled a pretrial conference for May 13, 2008, and the adjudicatory hearing on the termination petition for May 27, 2008. On May 6, 2008, Appellant’s counsel filed a specific discovery request to Department as part of an attempt to locate a copy of Appellant’s psychiatric evaluation. At the May 13 pretrial conference, Department’s counsel acknowledged the discovery request and admitted that the evaluation could not be located. The attorneys informed the court that Dr. Mandoki, who had performed the evaluation two years earlier, did not retain a copy and had no independent recollection of the evaluation or results. Appellant’s counsel considered this missing evaluation to be a significant item of evidence.

On May 14, 2008, counsel for Appellant filed a motion for a 45-day continuance to allow time to arrange an independent, updated psychiatric evaluation of Appellant and to allow the presentation of witnesses at the adjudicatory hearing who could report on Appellant’s current psychiatric status. The lawyers were allowed to argue in support of, or against, the motion. Concluding that the Florida Legislature has mandated the expeditious handling of proceedings to establish permanency for children in dependency and that Appellant’s counsel’s office had not used due diligence and shown good cause, the trial court orally denied the motion for continuance. See § 39.0136(1), (2)(b)1. & (3), Fla. Stat. (2007); R.S. v. Dep’t of Children & Families, 956 So.2d 1242 (Fla. 4th DCA 2007). At that same pretrial conference, the trial judge noted on the record that he knows Appellant, who “has been in the foster care system herself for years,” that she has had “very competent legal representation,” and that she is “a mother, well known to have psychiatric and psychological deficits.” With these comments, the conference concluded.

On May 22, 2008, counsel for Appellant filed a timely, sworn motion to disqualify the trial judge essentially on three main grounds. First, the motion alleged Appellant’s belief that she would not get a fair adjudicatory hearing because the judge, having presided repeatedly over Appellant’s earlier proceedings, was biased or prejudiced against her based on his knowledge of Appellant’s and her child’s history in the dependency system. § 38.10, Fla. Stat. (2007) (“Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the appellant or in favor of the adverse party, the judge shall proceed 'no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified.”). Second, Appellant alleged that the judge’s remarks at the pretrial conference suggested that the court had prejudged her mental health status and predetermined the merits of the case before hearing all the evidence, compelling his removal under Florida Rule of Judicial Administration 2.330(d)(1) (requiring a motion for disqualification to show “that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge”). See also § 38.10, Fla. Stat. (2007). Third, the motion alleged that the judge “is a material witness for or against one of the parties to the cause,” requiring his disqualification under Florida Rule of Judicial Administration 2.330(d)(2) (requiring the motion to show “that the judge before whom the case is pending ... is a material witness for or against one of the parties to the cause”). See also § 38.02, Fla. Stat. (2007). A “material witness” is one who “gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify.” Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934); Rodriguez v. State, 919 So.2d 1252, 1276 (Fla.2005). In support of this third ground, the motion alleged that, given the denial of the motion for continuance, the trial judge “may be a material witness to establish the existence of a missing psychiatric evaluation performed on the Mother during a previous case involving the Mother before this Court.” Further, the motion alleged that Appellant may require the judge’s testimony concerning Appellant’s prior legal representation and another of Appellant’s children.

Whereas the statutes provide the substantive right to move for disqualification, the rules set out the procedural requirements. See Cave v. State, 660 So.2d 705, 707 (Fla.1995); MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990); Livingston v. State, 441 So.2d 1083, 1086-87 (Fla.1983). In Douglass v. Douglas, 633 So.2d 1166 (Fla. 1st DCA 1994), we stated:

Section 38.02 contemplates that the judge will determine the truth of the suggestion to disqualify. This is in contrast to a motion for disqualification for prejudice under section 38.10 where the judge may not pass on the truth of the allegations.

Id. at 1167. Florida Rule of Judicial Administration 2.330(f) circumscribes the trial court’s consideration of such motions as follows:

(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If the motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

“A verified motion for disqualification must contain an actual factual foundation for the alleged fear of prejudice.” 'Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986); see Scholz v. Hauser; 657 So.2d 950, 951 (Fla. 5th DCA 1995). The facts alleged in the motion must be taken as true by the trial judge when ruling on the motion. See Sleiman v. Sleiman, 975 So.2d 533, 535 (Fla. 1st DCA 2008). The trial court has a duty to determine whether the factual allegations are “reasonably sufficient to create a well founded fear that the moving party would not receive a fair trial.” Kowalski v. Boyles, 557 So.2d 885, 886 (Fla. 5th DCA 1990); see Rodriguez, 919 So.2d at 1274; MacKenzie, 565 So.2d at 1335; Paletti v. Corbin, 717 So.2d 1056, 1056 (Fla. 1st DCA 1998) (concluding that allegations of bias in motion for disqualification “were sufficient to establish that a reasonably prudent person would fear that he would not receive a fair and impartial hearing before the judge”). A subjective fear of bias is insufficient to justify granting the motion; rather, the fear must be objective. See Puckett v. State, 591 So.2d 326, 327 (Fla. 5th DCA 1992); Fischer, 497 So.2d at 242.

It was not until May 27, 2008, the date when the adjudicatory hearing was scheduled for just minutes later that morning, that the trial court filed its order denying the motion for disqualification and provided a copy of the written order to counsel. The court correctly stated that neither pri- or rulings against a party nor the court’s familiarity with the case and evidence from earlier proceedings, by itself, is a legally sufficient ground for disqualification. See Petition of Geisser, 554 F.2d 698, 706-07 (5th Cir.1977) (concluding that trial judge who had accepted accused’s guilty plea was not required to disqualify himself as a material witness when the accused later petitioned for a writ of habeas corpus seeking specific enforcement of the plea bargain); Jackson v. State, 599 So.2d 103, 107 (Fla.1992); Heier v. Fleet, 642 So.2d 669 (Fla. 4th DCA 1994); K.H. v. Dep’t of Health & Rehabilitative Servs., 527 So.2d 230, 232 (Fla. 1st DCA 1988) (recognizing the well-established principle that “adverse judicial rulings do not constitute sufficient grounds to disqualify a judge” and affirming denial of legally insufficient motion for disqualification alleging that the trial court, in a termination of parental lights proceeding, was prejudiced against mov-ant/mother because the court had presided over numerous proceedings involving mov-ant and had found movant’s child to be dependent before directing that permanent commitment proceedings commence); Claughton v. Claughton, 452 So.2d 1073, 1074 (Fla. 3d DCA 1984); Wilisch v. Wilisch, 335 So.2d 861, 865-66 (Fla. 3d DCA 1976). Responding directly to the allegations as to why the trial judge may be a material witness at the adjudicatory hearing, the court denied that Appellant has personal knowledge concerning what the judge knows and remembers about the missing psychiatric evaluation and about Appellant’s prior legal representation. Immediately before the adjudicatory hearing commenced, Appellant’s counsel orally moved to amend the pretrial stipulation to allow the trial judge to be called as a witness for Appellant; the motion was denied without discussion.

We have de novo review of the order denying the motion for disqualification. See Arbelaez v. State, 898 So.2d 25, 41 (Fla.2005); State v. Ballard, 956 So.2d 470, 472 (Fla. 2d DCA 2007). “If a judge attempts to refute the factual assertions in a motion for disqualification, he or she is deemed to have taken an adversarial role in the matter, which itself warrants disqualification.” Frost v. Ward, 622 So.2d 597, 598 (Fla. 4th DCA 1993); see Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978); Hill v. Feder, 564 So.2d 609, 609 (Fla. 3d DCA 1990). By attempting to refute the factual allegations as to why the trial court may be biased and the only material witness who could fill in the gaps created by the missing psychiatric evaluation, the judge did more than determine the legal sufficiency of the motion for disqualification, and thereby created the “adversarial position” establishing grounds for him to grant the motion as a matter of law. See Cave, 660 So.2d at 708; MacKenzie, 565 So.2d at 1339; Martin v. State, 804 So.2d 360, 364 (Fla. 4th DCA 2001); Hill, 564 So.2d at 609; Scholz, 657 So.2d at 951. We reject the suggestion that the circuit judge was merely acknowledging “the status of the record,” which occurred in Kowalski, 557 So.2d at 887. Cf. Niebla v. State, 832 So.2d 887, 888 (Fla. 3d DCA 2002) (finding no basis for disqualifying trial judge who classified defendant as a habitual violent offender and imposed 13 consecutive life terms for multiple felonies, where the court allegedly had prejudged the sentencing phase by asking the prosecutor, at a hearing on defendant’s Florida Rule of Criminal Procedure 3.800(b) motion, what was the maximum permissible sentence, and the judge did nothing more than “state the status of the record” in orally denying the motion for disqualification).

Appellant notes an alternative basis for granting the motion. Unquestionably, Appellant’s history of mental health deficits and her current mental health status were key components of Department’s decision to initiate proceedings to protect the child and to provide services to Appellant to help mitigate and/or eliminate these deficiencies and assist her in complying substantially with the case plan. Department’s suggestion that Appellant’s mental deficits and psychiatric history “were not at issue in this case” is disingenuous, in that the main controversies at the termination hearing related to the nature and extent of Appellant’s mental deficits and the question of whether, through the provision of services by Department, she currently was capable of substantially completing her case plan and functioning as an informed, safe, and effective parent of the child in question. Appellant’s counsel’s acknowledgment of Appellant’s adverse mental health circumstances was the starting point, not the end, of the determination of whether one or more grounds for termination exist. At the pretrial conference, the judge’s remarks that Appellant’s legal representation had been very competent and that Appellant was well-known to have psychiatric and psychological deficits would have caused a reasonably prudent person to have a well-founded fear that the court was biased or predisposed against Appellant and had formed an opinion about her psychiatric or psychological status (and, by inference, about Appellant’s ability to parent the child safely) before the evidence was presented at the adjudicatory hearing. See Ballard, 956 So.2d at 473 (concluding that the disqualification of a circuit judge presiding over a first-degree murder case of a sexagenarian defendant was warranted, where judicial comments at a pretrial status conference regarding the suitability and efficiency of the death penalty for a defendant of senior years could reasonably be construed as showing the court had prejudged the decision regarding an appropriate sentence, and the judge’s instructions to have the State re-evaluate its intent to seek the death penalty created the appearance the court would disregard a death recommendation); Holmes v. Goldstein, 650 So.2d 87 (Fla. 4th DCA 1995).

“[Ejvery litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); see Seay v. State, 286 So.2d 532, 544 (Fla.1973); Brown v. State, 885 So.2d 391, 393 (Fla. 5th DCA 2004). The trial court reversibly erred by denying the motion for disqualification. For these reasons, we are constrained to REVERSE the order terminating parental rights and to REMAND for further proceedings before a different trial judge.

We take this opportunity to address the Guardian Ad Litem’s contention that, given the deleterious effect upon children resulting from delays in permanent placement, Appellant should have sought immediate review of the denial of her motion for disqualification by the usual means, a petition for the “extraordinary remedy” of a writ of prohibition. See Dep’t of Children & Family Servs. v. J.C., 847 So.2d 487, 491 (Fla. 3d DCA 2002); Siegel v. State, 861 So.2d 90, 92 (Fla. 4th DCA 2003); Hill, 564 So.2d at 609; Philip J. Padovano, Florida Appellate Practice § 28.3 at 690 n. 11 (“Prohibition is an appropriate remedy to review the denial of a motion to disqualify the judge.”). First, we note that in our decision in K.H., 527 So.2d at 231-32, the appellant/mother challenged the denial of the motion for disqualification in her plenary appeal of the final order terminating her parental rights, and we addressed the merits of the trial court’s ruling on the “disqualification” issue before affirming that ruling. Thus, a petition for writ of prohibition is not the exclusive avenue for pursuing relief from the denial of a motion for disqualification. Second, given the exigencies of this case — apparently, the trial court delivered the denial order to counsel just minutes before the termination hearing was scheduled to begin— we believe that Appellant’s decision to proceed with the termination hearing rather than delay the proceedings further by seeking a writ of prohibition, is reasonable under the particular circumstances. We find no procedural bar (nor have the appellees cited one) to our consideration of this issue on plenary appeal. See K.H.

REVERSED and REMANDED for further proceedings in front of a different trial judge.

BENTON, J., concurs; KAHN, J., concurs with opinion.

KAHN, J.,

concurring with opinion.

I concur in the judgment of the court based upon the narrow principle articulated in the majority opinion that a trial judge may not attempt to refute the factual assertions in a motion for disqualification. I am not persuaded by the judge’s remarks about appellant’s history. The reality on the ground of dependency courts dictates that many judges will have had protracted prior experience with those unfortunate parents and children who come before the judge. Because this case can be decided on the narrow ground that the trial judge improperly attempted to refute the allegations of the motion, I would go no further.


author: STEVENSON, J.

text:
    Liz MacINTYRE, as Trustee of the Helen M. Wedrall Trust, Appellant, v. Agnes WEDELL, Appellee.
    No. 4D08-754.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    William R. Ponsoldt, Jr. of Wright, Pon-soldt & Lozeau Trial Attorneys, L.L.P., Stuart, for appellant.
    Jeffrey H. Skatoff and Jennifer M. Arthur of Clark Skatoff LLP, Palm Beach Gardens, for appellee.
   STEVENSON, J.

The issue in this appeal is whether a trustee may challenge the settlor’s revocation of an inter vivos revocable trust, on undue influence grounds, after the settlor’s death. We answer this question in the negative and affirm the trial court’s order dismissing the instant claim brought by appellant, Liz MacIntyre as Trustee of the Helen M. Wedrall Trust.

Many years prior to this litigation, Helen M. Wedrall executed a revocable trust agreement transferring her assets to a revocable trust. Under the terms of Wed-rall’s will, the residue of her estate would pour over into the trust. At the time of Wedrall’s death, the residue of Wedrall’s trust was to be equally divided among three of her sisters, Agnes Wedell, Dorothy Ziegler, and Liz MacIntyre. Following Wedrall’s death, MacIntyre, as Trustee of the Helen M. Wedrall Trust, filed suit against Wedell, alleging that, just weeks prior to her death, Wedrall had placed her money into an account that was jointly titled in Wedrall’s and Wedell’s names and that Wedrall had transferred cash and securities to Wedell. According to the allegations of the complaint, these transfers by Wedrall were made at a time when Wedrall was suffering from physical and mental ailments and were the product of Wedell’s undue influence over Wedrall. Upon defendant Wedell’s motion, the trial court dismissed the suit with prejudice, finding our supreme court’s decision in Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla. 1984), bars an undue influence challenge to a settlor’s removal of funds from her revocable trust. We agree and affirm the dismissal.

In Genova v. Florida National Bank of Palm Beach County, 433 So.2d 1211 (Fla. 4th DCA 1983), seventy-six-year-old Ann Cleary married Mark Genova, who was thirty-two. During the marriage, Cleary created a revocable trust, naming herself and Florida National Bank of Palm Beach County as co-trustees. About two years later, Cleary and Genova divorced. During the dissolution proceedings, the trial court set aside Cleary’s transfer of certain of her assets to Genova, finding the transfer was the result of undue influence. See id at 1213. Several months after the divorce, Cleary and Genova remarried. Five days after the remarriage, Cleary wrote to the bank, indicating she wished to revoke her trust. Aware of the prior finding of undue influence, the bank refused to transfer the funds and, instead, filed a petition in the probate court, seeking instruction on how to proceed. Cleary filed a petition for writ of mandamus. The trial court found Cleary’s attempts to revoke the trust were the product of her husband’s undue influence and were, thus, invalid. Cleary appealed. This court reversed, finding that concepts of undue influence could not be resorted to in order to deprive a “settlor, who is the sole beneficiary of the trust during her lifetime ..., prior to her death, of her right to revoke the trust in the absence of a judicial determination or medical certification of her physical or mental incapacity.” Id

The supreme court affirmed our decision in Genova. In so doing, the court explained that a revocable trust is “a unique type of transfer” and “[b]y definition, ..., when a settlor sets up a revocable trust, he or she has the right to recall or end the trust at any time, and thereby regain absolute ownership of the trust property.” 460 So.2d at 897. The settlor’s retention of control “distinguishes a revocable trust from the other types of conveyances in which the principle of undue influence is applied, i.e., gifts, deeds, wills, contracts, etc.” Id The court further wrote:

The courts have no place in trying to save persons such as Mrs. Genova, the otherwise competent settlor of a revocable trust, from what may or may not be her own imprudence with her own assets. When she created this trust, she provided a means to save herself from her own incompetence, and the courts can and should zealously protect her from her own mental incapacity. However, when she created this trust, she also reserved the absolute right to revoke if she were not incompetent. In order for this to remain a desirable feature of a trust instrument, the right to revoke should also be absolute.

Id. at 898. Genova thus held that a co-trustee could not seek to preclude the settlor from revoking her trust on the grounds of undue influence, but suggested that the settlor could be precluded from revoking the trust if she were incompetent.

Appellant MacIntyre insists Genova does not control here because, in Genova, the settlor was alive at the time of the challenge to the revocation and, here, the settlor is deceased. MacIntyre points to the decision in Paananen v. Kruse, 581 So.2d 186 (Fla. 2d DCA 1991). There, at the time Emma and Henry Carson moved into a retirement center, Emma Carson’s will left her estate to her husband’s nephew and, should the nephew and his wife predecease Carson, then to her great nieces. The nephew lived out-of-state and sought someone to help manage the Car-sons’ affairs. The director of the retirement center recommended Muriel Paananen, who did volunteer work at the center. Paananen helped Emma Carson -with her business affairs and the two became friends. Emma Carson then executed a new will and revocable trust, the terms of which provided that the assets of the trust were to be used for the benefit of the Carsons during their lifetime and then for the benefit of the nephew during his lifetime, with the residue going to Paananen. Emma Carson’s husband and the nephew died a short time later. After Emma Carson died, her great nieces, the beneficiaries under the 1985 will, filed suit, challenging the 1987 will and revocable trust on the ground that they were the product of Paananen’s undue influence over Emma Carson. The trial court revoked probation of the 1987 will and invalidated the trust, finding both were the product of undue influence.

The Second District affirmed in Pa em-anen and rejected the argument that Ge-nova precluded an undue influence challenge to the validity of the trust.

Appellant argues that Genova also stands for the rule that undue influence is not an available remedy to revoke an inter vivos revocable trust where at the time of the action for revocation the settlor is deceased and the trust has ripened into a testamentary disposition. Such is not the law in this state any more than it is the law that a will, which is by its nature revocable by the testator up until his or her death, is not revocable on the basis of undue influence after the death of the testator.

581 So.2d at 188.

Paananen is plainly distinguishable from the instant case. Despite the opinion’s quoted language above speaking in terms of the revocation of an inter vivos revocable trust, the actual claim there was that the creation of the trust was the product of undue influence. The decision in Paananen noted that, at the time of the action there, the inter vivos trust had ripened into a testamentary disposition, ie., the trust assets had poured-over into the 1987 will. Id. at 188. Here, the inter vivos trust was revoked during the set-tlor’s lifetime and never ripened into a testamentary disposition. Further, the Genova decision itself plainly suggests the availability of an undue influence challenge to the settlor’s revocation of his or her revocable trust should not turn upon whether the action is brought when the settlor is alive or deceased. Genova reached the supreme court as a consequence of the conflict between this court’s decision in Genova and the Second District’s decision in Hoffman v. Kohns, 385 So.2d 1064 (Fla. 2d DCA 1980). In Geno-va, the settlor of the trust was alive, the settlor herself was attempting to revoke the trust, and the co-trustee bank refused to act on her attempted revocation. In Hoffman, the action challenging the decedent’s revocation of the trust was brought by a would-have-been beneficiary of the trust after the settlor died. The Second District relied upon “undue influence” to disaffirm the decedent’s revocation of the trust. The supreme court expressly disapproved this result in Hoffman after writing that “the principle of undue influence has no place in determining whether a competent settlor can revoke a revocable trust.” 460 So.2d at 896.

In sum, we hold that, as a consequence of Genova, even after the settlor’s death, the settlor’s revocation of her revocable trust during her lifetime is not subject to challenge on the ground that the revocation was the product of undue influence. Thus, having considered all issues raised, we affirm the dismissal, with prejudice, of the “undue influence” claim.

Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

      . Paananen was decided in 1991. In 1992, the legislature enacted a statute providing that “[a] trust is void if the execution is procured by fraud, duress, mistake, or undue influence," see section 737.206, Florida Statutes (1993), and that language presently appears in section 736.0406, Florida Statutes (2008). In 2000, the legislature enacted section 737.2065, Florida Statutes (2000), which provides that "[a]n action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable.”


author: SCHWARTZ, Senior Judge.

text:
    GRANADA INSURANCE COMPANY, Petitioner, v. Carl RICKS, Triangle Fire, Inc. and Gary Wengloski, Respondents.
    No. 3D09-243.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Hinshaw & Culbertson and Sina Baha-doran, Miami, for petitioner.
    Krupnick, Campbell, Malone, Buser, Sla-ma, Hancock, Liberman & McKee and Kelley Stewart and Walter Campbell, Fort Lauderdale, for respondent Carl Ricks.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Triangle Fire, Inc. and an injured plaintiff joined in seeking insurance coverage under a liability policy issued by Granada Insurance Company for an accident allegedly caused by Triangle’s negligence. The company denied coverage.

While that issue remained unresolved, Granada sought protection from a notice of deposition directed by the plaintiff to the president of the company. Notwithstanding that he had no personal knowledge of the facts or handling of the case, the plaintiffs attorney argued that discovery was permitted to determine whether

... if there is a corporate policy in place that says to reject certain claims based on certain criteria and accept other claims based on other certain criteria, that’s something that’s going to flow from the top down. That’s going to be the president, the board, who are going to make those decisions ...
If there is a blanket policy out there from the company saying to deny all claims, I’m just throwing out a for instance, to deny all claims based on this, and you know, revisit them later, we’re entitled to know about that.

Adopting this argument, the trial judge permitted the deposition to go forward regarding the “policies and procedures concerning claims handling by Granada.”

We quash the order. Our decision is based upon the universally applied rule that discovery which concerns only potential issues of bad faith or other purported improprieties in defending the claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (recognizing that “discovery request [for] — internal procedural memos, claims manuals, and standards for proper investigation of claims — do, as the district court noted, appear irrelevant”); Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 619 (Fla.1994); Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991); GEICO v. Rodriguez, 960 So.2d 794, 796 (Fla. 3d DCA 2007) (quashing discovery order requiring insurer to produce documents regarding its policies and practices regarding the handling of claims in a coverage action); State Farm Fla. Ins. Co. v. Gallmon, 835 So.2d 389, 390 (Fla. 2d DCA 2003) (quashing order compelling the insurer to produce company policies and manuals as these items were irrelevant and/or privileged work product in a coverage dispute); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865, 866 (Fla. 3d DCA 2000) (holding that a discovery order requiring disclosure of the insurer’s business practices was premature without a determination of the coverage issue); Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA 1998) (holding that when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer’s claims handling manuals and materials).

Certiorari granted.

      . Although the point was understandably not pressed in the trial court, it is suggested on appeal that the president could properly be deposed concerning his own interpretation of the policy. Because, however, the meaning of an insurance contract is a question of law, and thus not subject to opinion testimony, this contention is wholly without merit. See Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla. 2007); Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005); Koikos v. Travelers Ins. Co., 849 So.2d 263, 266 (Fla.2003); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla. 1985); Smith v. State Farm Mut. Auto. Ins. Co., 231 So.2d 193, 194 (Fla. 1970); State Farm Fire & Cas. v. Nickelson, 677 So.2d 37 (Fla. 1st DCA 1996); Ellenwood v. S. United Life Ins. Co., 373 So.2d 392, 394 (Fla. 1st DCA 1979).


author: PER CURIAM.

text:
    FEDERATED NATIONAL INSURANCE COMPANY, Appellant, v. Ronald THOMAS a/k/a Thompson, Paul Lynch and Nancy Lynch, Appellees.
    No. 4D08-842.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Rehearing Denied June 17, 2009.

      Warren B. Kwavnick of Cooney, Matt-son, Lance, Blackburn, Richards & O’Con-nor, P.A., Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Dan Cytryn of Cytryn & Santana, P.A., Coral Springs, for appellees Paul Lynch and Nancy Lynch.
   PER CURIAM.

Affirmed. See Zautner v. Liberty Mut. Ins. Co., 382 So.2d 106 (Fla. 3d DCA 1980).

STEVENSON, HAZOURI and LEVINE, JJ., concur.


author: PLEUS, JR., R., Senior Judge.

text:
    Connie FRENCH, Appellant, v. William Thomas FRENCH, Jr, Appellee.
    No. 5D08-2793.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.

      Ronald E. Clark, Palatka, for Appellant.
    No Appearance for Appellee.
   PLEUS, JR., R., Senior Judge.

The former wife, Connie French, timely appeals the final judgment of dissolution of marriage rendered upon the court’s ratification and confirmation of the report and recommendations of the general magistrate. She argues that the trial court erred in refusing to consider, after it was brought to the court’s attention, a miscalculation by the general magistrate regarding her monthly expenses, which miscalculation resulted in the erroneous denial of alimony to her. The former husband, William French, has not favored this court with an answer brief.

After twenty-six years of marriage, the parties separated and the former wife filed for a dissolution. The case was referred to mediation. The parties were able to settle the division of their assets and liabilities by agreement, leaving only the issues of alimony and attorney’s fees for the general magistrate to determine. In the months preceding the hearing before the general magistrate, both parties experienced unexpected financial changes. The former husband’s expenses increased significantly due to his exit from the marital home. The former wife’s income decreased because of cutbacks by her employer, and her expenses increased. These changes led the former wife to regret her acceptance of one-half of the marital debt in the mediated settlement agreement; indeed, she believed that her very survival was dependent upon an award of alimony.

The parties testified to these matters before the general magistrate. In its report and recommendations, the general magistrate outlined their testimony and then addressed the expenses of the parties. It listed the former wife’s various expenses, converting some, but unfortunately not all, of the figures into monthly amounts before totaling the individual expenses to determine the former -wife’s total monthly expenses. The failure to convert all figures into monthly amounts apparently led the general magistrate to conclude, erroneously, that the former wife’s monthly expenses were $1546.66, when, in fact, her undisputed testimony was that her monthly expenses were $2012.86. Based on its calculations, which also failed to consider the former husband’s increased expenses, the general magistrate concluded that the former husband had the ability to pay alimony, but the former wife had no need.

The former wife filed exceptions to the general magistrate’s report and recommendations, challenging the denial of her claim to alimony. At the hearing on her exceptions, the former wife filed an affidavit in which she asserted, for the first time, the general magistrate’s errors in the calculation of her expenses. We emphasize that her affidavit pointed out errors that were plain on the face of the report.

Despite the magistrate’s errors, the trial court refused to consider the former wife’s challenge to the calculations because, it concluded, her challenge was untimely. The court ruled that the affidavit, filed as it was in open court, was too late because it was filed outside the ten-day period, set forth in Florida Family Law Rule of Procedure 12.490(f), for filing exceptions. This ruling was error.

While the court was correct that the affidavit raised a matter not included in the former wife’s exceptions and was too late if intended to serve as an exception, the trial court failed to recognize the import of the fact that the errors were plain on the face of the report. Given that the trial court was charged with determining whether the magistrate’s findings of fact were supported by competent evidence, the trial court itself should have discovered the errors in the course of making a careful review of the report and the transcript. See Anderson v. Anderson, 736 So.2d 49, 50-51 (Fla. 5th DCA 1999) (“It is clear that if one objects to a master’s report, the trial court has an obligation not merely to consider the findings and recommendation of the master but also to review the entire file. But the review is not intended to permit the trial court to make its independent finding of facts or to reach its independent conclusion as to the legal effect of such facts. The review of the entire record is to ascertain whether the master’s finding is supported by competent evidence and to see if the master’s conclusions pass the Canakaris test.”) (emphasis added); see also Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951) (“Whether exceptions are filed to the report of the Master or not, it is the duty of the court to examine and carefully consider the evidence and determine whether under the law and the facts the court is justified in entering the decree recommended by the Master.”). Once discovered, the errors required the trial court to conclude that the magistrate’s determination of the amount of expense assigned to the former wife was not supported by competent evidence.

We also note that the former husband’s testimony of increased expenses created by his need to pay rent was unchallenged, and thus, his expenses were greater than the figure relied upon by the general magistrate.

Because the errors in the general magistrate’s findings of fact as to expenses were clear on the face of its report, the trial court erred in confirming the report. We remand for correction of the findings regarding expenses both as to the former wife and the former husband. On remand, the trial court may consider whether the corrected figures require an award of alimony.

AFFIRMED IN PART; REVERSED IN PART; REMANDED for further proceedings consistent with this opinion.

TORPY and EVANDER, JJ., concur.


author: SAWAYA, J.

text:
    David DUBOIS, Appellant, v. Miguel LEON and Aida Leon, Appellees.
    No. 5D08-1474.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.

      Robert J. Wheeloek, Eric Lee Bensen, and Michael B. Jones, of The Wheeloek Law Firm, LLC, Orlando, for Appellant.
    Gary S. Israel of Gary S. Israel, P.A., Orlando, for Appellees.
   SAWAYA, J.

We reverse the nonfinal order awarding temporary custody of the minor child of David Dubois, the natural father, to the maternal grandparents because it is apparent from the face of the order that the trial court erroneously applied the best interests standard, rather than the applicable clear and convincing standard, when reviewing the evidence. See § 751.05(3), Fla. Stat. (2008) (“If one of the minor child’s parents objects to the granting of temporary custody to the petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.”). Accordingly, we reverse the temporary custody order and remand for reconsideration under the appropriate standard.

REVERSED and REMANDED for further proceedings.

GRIFFIN and EVANDER, JJ., concur.


text:
    Lidesmond Terrell BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2578.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.
    Paula C. Coffman, Orlando, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Lidesmond Terrell Baker appeals from the denial of his motion to -withdraw plea, filed after he was sentenced as a habitual felony offender (HFO) to fifteen years in prison on a charge of sale and delivery of cocaine. Because the State did not file its notice of intent to seek HFO sentencing until after Baker entered his plea, the trial judge did not explain the consequences of a potential HFO sentence to Baker until after the plea was entered. Under these circumstances, we agree with Baker that he is entitled to post-sentencing relief.

In Ashley v. State, 614 So.2d 486 (Fla. 1993), the Florida Supreme Court held that “in order for a defendant to be habitu-alized following a guilty or nolo contendré plea, the following must take place prior to acceptance of the plea: 1) the defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences.” Id. at 490 (emphasis added). In this case, the prosecutor stated a desire or intent to seek the HFO sentencing enhancement before Baker entered his plea, but the State did not file its notice of intent to seek HFO sentencing, or serve the notice on Baker, until the day after Baker’s plea. Because no notice had been filed, the trial judge only informed Baker that he faced a maximum penalty of fifteen years in prison during the plea colloquy, and did not inform Baker of any of the sentencing consequences of an HFO designation.

This case is somewhat unique in that the trial judge ultimately imposed a fifteen-year sentence that could have been imposed without the HFO enhancement, and unequivocally explained that Baker’s HFO status had no effect on his decision as to the length of the pronounced sentence. In other words, the trial judge determined that fifteen years was the appropriate sentence irrespective of whether the State sought HFO sanctions, and clearly said this on the record. Given this fact, we can understand why the trial judge concluded that Baker had not demonstrated a manifest injustice warranting withdrawal of his plea. See, e.g., Powell v. State, 929 So.2d 54, 55 (Fla. 5th DCA 2006) (repeating rule that a defendant seeking to have his or her plea set aside after sentencing must establish that withdrawal of the plea is “necessary to correct a manifest injustice”). However, failure to grant any post-sentencing relief ignores the dictates of Ashley, which prohibits HFO enhancement in a plea case where the State did not seek HFO sentencing prior to entry of the plea, or where the defendant was not informed that habitualization could affect eligibility for early release prior to entry of the plea. Because the Ashley requirement was not met, Baker is entitled to relief. Id. Accordingly, we reverse the order denying Baker’s motion to withdraw plea and remand for additional proceedings.

On remand, the trial court may simply strike the HFO designation, if there is no objection from the State. See Williams v. State, 2 So.3d 1089 (Fla. 5th DCA 2009). This will place Baker in the same position he would have been in if the State had not sought the HFO enhancement. Id.; see also, Wilson, 658 So.2d at 523. If the State does not agree to removal of the HFO classification, Baker must be allowed to withdraw his plea. Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORPY, J., and COBB, W., Senior Judge, concur.

      . The maximum penalty on the charge to which Baker pled is fifteen years without the HFO enhancement. §§ 775.082(3)(c), 893.13(l)(a), Fla. Stat. (2007). With the HFO enhancement, the maximum penalty doubled to thirty years. § 775.084(4)(a)2., Fla. Stat. (2007). In addition to requiring that a defendant be told about the ''maximum habitual offender term for the charged offense” prior to entering his or her plea, Ashley expressly requires that a defendant be told "that habitu-alization may affect the possibility of early release through certain programs, prior to entering his or her plea...." Ashley, 614 So.2d at 490 n. 8; see also, State v. Wilson, 658 So.2d 521 (Fla.1995) (confirming that a defendant cannot be sentenced as an HFO after entering a plea unless he or she was informed of the affect of an HFO designation on gain time or other early release programs prior to entering the plea):


author: POLEN, J.

text:
    Dogan M. BENGISU, Appellant, v. Renee BENGISU, Appellee.
    No. 4D08-5117.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Matthew S. Nugent and Adam M. Zbo-rowski of Law Offices of Matthew S. Nu-gent, North Palm Beach, for appellant.

      Christopher R. Jette of Goldstein & Jette, P.A., West Palm Beach, for appellee.
   POLEN, J.

Appellant, Dogan Bengisu, appeals the trial court’s non-final order awarding his wife and Appellee, Renee Bengisu temporary child support and alimony. Husband and wife were married in 1997 and have two children, born in 1998 and 2001. On May 30, 2008, wife filed a petition for dissolution of marriage with minor children.

On September 9, 2008, wife filed a motion for temporary relief seeking shared parental responsibility, designation as the primary residential parent, temporary periodic alimony, temporary exclusive use and possession of the marital residence, child support, the maintenance of her and the children’s health and dental insurance, and attorney’s fees. The trial court held an initial hearing on wife’s motion on November 19, 2008 and continued that hearing on December 12, 2008.

Prior to the second hearing, husband filed a motion for temporary relief on December 8, 2008 seeking open and liberal timesharing with the children pursuant to the Model Timesharing Schedule for Parents Who Reside No More than 45 Miles Apart, contribution to the children’s support from wife, imputed income for the wife, the transfer to husband of $10,000 of the $20,000 withdrawn from the home equity line of credit by wife, and a monthly payment of the fair rental value of the marital residence. Husband also filed a Proposed Temporary Parental Responsibility and Temporary Timesharing Schedule. Husband’s motion for temporary relief was heard in conjunction with wife’s motion on December 12, 2008.

Wife’s financial affidavit stated that she was unemployed and claimed total monthly expenses of $11,898.00. The affidavit also listed her net worth as $744,123.00. Husband’s financial affidavit stated that he was a lawyer employed as a solo practitioner, that his office had just reopened after being closed for four months, and that his pay was based on the income of his office. Husband listed gross monthly income of $3031.00, net monthly income of $2585.00, total monthly expenses of $4886.58, and a monthly deficit of $2720.29. Finally, husband listed a net worth of $322,230.00.

Both wife and husband listed a home equity line of credit on them affidavits. Husband’s affidavit indicated that the home equity line of credit balance was $47,659.21 and that he made a monthly payment of $476.59. Wife testified that she had withdrawn $20,000 from the home equity line of credit which she had spent on household expenses, caring for the children, legal fees and paying her accountant.

Wife testified that her household had around $12,600 in monthly expenses, that throughout the marriage husband was responsible for all of the expenses, that bills had never been left unpaid, and that she did not believe the couple had ever accrued any debt to cover their monthly obligations. Wife testified that during the marriage, she was never clear how much husband was earning. Wife stated that husband left his solo practice to work for a law firm for four months leading up to the divorce and, while there, his salary was $85,000.

Wife’s accountant, William Mitchell, testified that he had been retained by wife to ascertain whether the discovery responses provided by husband were accurate but that he was not a certified forensic accountant. Mitchell testified that based on his review of wife’s financial affidavit and household expenses, he believed she needed $5,500 undifferentiated monthly support during the pendency of the divorce. Mitchell explained that husband’s 2006 and 2007 tax returns stated income of $42,505 and $48,115, respectively but that he did not believe the returns accurately reflected husband’s income for those two years.

Husband testified that his law practice had a gross annual income of between $70,000 and $80,000 and had net income of between $25,000 and $42,000. Husband stated that his big client, who represented two-thirds of his monthly income, died in 2005 after which his income had significantly decreased. Husband stated that the family accrued $3,000-$5,000 of debt per year, that his clients did not pay him in cash, and that his $85,000 salary while at the law firm just before the divorce was the highest salary he had earned in his life. Despite listing a monthly deficit of $2,270, husband only had $6,750 in credit card debt, $5,000 of which was spent on wife’s attorney’s fees. Husband explained that his parents had helped them with their expenses in previous years, that they were currently unable to help them, and that he had an additional $6,000 of credit card debt which he had neglected to list on his affidavit.

Husband’s forensic accountant, Alan Wagner, testified that husband’s current gross monthly income from all sources was $3,221.00 which was similar to his historical income. Wagner stated that husband ran a one-man law office and that he had reviewed husband’s business ledgers, bank accounts, and cancelled cheeks in reaching his determinations. Wagner explained that there was no indication that any of husband’s clients paid him in cash, that all of his current clients were businesses, and that businesses typically paid all of their expenses by check. Husband had been paying the entire first mortgage and home equity line of credit on his own but within the two months prior to the hearing had been unable to afford the home equity line of credit payments.

The parties both informed the court that they had agreed to husband’s proposed timesharing schedule. In its order awarding wife temporary support, the trial court found:

During the history of the intact marriage, the Husband was exclusively responsible for the payment of all the parties’ individual and household expenses. The Court finds he is underemployed based upon his historical earnings. Further the Court was persuaded by the evidence the parties had historically paid their ongoing monthly expenses without accruing debt.

Thus, the court entered an order requiring the parents to use the Model Parental Timesharing Schedule for Parents Who Live within 45 Miles of Each Other when they do not otherwise agree, ordering husband to continue paying the mortgage, taxes, and insurance for the marital residence, allowing wife to continue to exercise exclusive use and possession of the marital residence, awarding wife undifferentiated support in the amount of $5,500 per month, requiring husband to pay wife’s attorney’s fees, and requiring husband to maintain the family’s major medical insurance coverage. The court also permitted each party to use $10,000 of the remaining $20,000 home equity line of credit. Husband now timely appeals.

Husband argues that the trial court erred in awarding wife temporary alimony and child support in the amount of $5,500 per month because the award exceeds his monthly income, the court made no findings as to husband’s monthly net income, and the court lacked competent substantial evidence to impute additional income to husband. Wife replies that there was no error because the evidence showed that husband was not reporting all of his income and that her monthly expenses required an award of $5,500 undifferentiated monthly support. “[Temporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” Pedraja v. Garcia, 667 So.2d 461, 462 (Fla. 4th DCA 1996). In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony. Stern v. Stern, 907 So.2d 701, 702 (Fla. 4th DCA 2005). Finally, both the requesting spouse’s need and the other spouse’s ability to pay must be supported by competent, substantial evidence. Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005).

There was evidence below that husband had historically paid the couple’s monthly expenses without accruing debt, and the trial court found, accordingly, that husband was underemployed and should continue to be responsible for the monthly expenses of the family. However, there was also evidence that the couple’s parents had helped them financially in the past, were unable to continue helping them, and that husband had recently reestablished his solo law practice. Wife’s accountant stated that he believed husband’s actual income exceeded his stated income, and husband’s accountant testified that he believed husband’s stated income was accurate.

Husband’s financial affidavit reflects a monthly deficit of nearly $3,000, and the trial court awarded wife undifferentiated support in the amount of $5,500. Despite evidence that husband had historically made sufficient income to pay the family’s expenses, the trial court abused its discretion in awarding monthly support which greatly exceeds husband’s monthly income without competent substantial evidence that husband’s actual monthly income exceeds his stated monthly income.

Moreover, the trial court failed to make specific findings indicating the source and amount of husband’s imputed income. Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005) (‘When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.”). Therefore, we reverse and remand for the trial court to make the necessary findings based on competent substantial evidence of husband’s income and to award an appropriate amount of temporary support based on those findings. Whether additional testimony and evidence is required or whether the current record contains sufficient evidence, we leave for the trial court to determine.

Reversed and remanded.

STEVENSON and DAMOORGIAN, JJ., concur.

      . Here, the trial court's order ignores the fact that the home equity line of credit does not have $20,000 remaining. The credit line was for $50,000 and husband’s affidavit and testimony reveal that the current balance is $47,659.21.


author: SUAREZ, J.

text:
    Andres PAVON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2323.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Carlos J. Martinez, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

Defendant appeals a final judgment of conviction and sentence after a jury trial. The defendant was charged by information with three counts of robbery using a deadly weapon or firearm and one count of false imprisonment, and he was convicted of robbery with a firearm. The defendant filed a motion to suppress his confession and evidence obtained from the search of his car and apartment, which, after an evidentiary hearing, was denied by the trial court. We affirm.

On a motion to suppress, the trial judge’s role is to weigh the credibility of the witnesses and resolve the evidentiary conflicts. See Parlee v. State, 899 So.2d 458 (Fla. 5th DCA 2005). The record shows that the judge, with clarity, found the defendant’s confession and the consent to the inspection of his vehicle and apartment to be voluntary by a preponderance of the evidence. Therefore, the confession and evidence were rightfully admitted, and the denial of the motion to suppress was not error. See Dillow v. State, 884 So.2d 508 (Fla. 2d DCA 2004).

Affirmed.


text:
    Terrence HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1223.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.

      Terrence Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Terrence Harris appeals from the trial court’s denial of his motion to correct an allegedly-illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Harris was sentenced as a violent career criminal for the charge of burglary of an unoccupied dwelling.

Harris sought the same relief in a prior appeal, our Case No. 3D03-2998. His theory was rejected in Harris v. State, 902 So.2d 183 (Fla. 3d DCA 2005), citing Rodriguez v. State, 837 So.2d 1177 (Fla. 3d DCA 2003), review denied, 848 So.2d 1155 (Fla.2003). We remind the appellant that repetitive motions are not authorized under Rule 3.800 for claims that have been previously adjudicated and “may lead to forfeiture of all or part of his accumulated gain time.” Tannehill v. State, 843 So.2d 355, 356 (Fla. 3d DCA 2003).

Affirmed.