author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE-MANAGEMENT OF CASES INVOLVING COMPLEX LITIGATION.
    No. SC08-1141.
    Supreme Court of Florida.
    Oct. 15, 2009.
    Thomas H. Bateman, III, Chair, Task Force on the Management of Cases Involving Complex Litigation, Messer, Ca-parello and Self, P.A., Tallahassee, Florida, for Petitioner.
    Marianne Trussell, Chair, Civil Procedure Rules Committee, Tallahassee, Florida and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; Jennifer Mansfield of Holland and Knight, Jacksonville, Florida; Bill Wagner, Tampa, Florida; Henry P. Traw-ick, Jr., Sarasota, Florida; Irene G. Plank, Director of Court Services, on behalf of Karen E. Rushing, Clerk of Circuit Court and County Comptroller, Sarasota County, Sarasota, Florida; Judge Judith L. Kreeger, and, Judge Sandy Karlan, Eleventh Judicial Circuit, Miami, Florida, Judge Hugh E. Starnes, Twentieth Judicial Circuit, Fort Myers, Florida, and Judge Raymond Thomas McNeal (Retired), Ocala, Florida; Scott L. Rubin, Chair, The Florida Bar Family Law Section, Miami, Florida, and Ronald L. Bornstein, Chair, Rules and Forms Committee, The Florida Bar Family Law Section, Boca Raton, Florida; Diane M. Kirigin, General Magistrate, South County Judicial Complex, Delray Beach, Florida; Salvatore G. Scro of Levin Tannenbaum, Sarasota, Florida; Robyn L. Vines, Chair, Family Law Rules Committee, Fort Lauderdale, Florida; Judge Lauren C. Laughlin, Sixth Judicial Circuit, St. Petersburg, Florida; Judge Robert B. Bennett, Jr., Chair, Commission on Trial court Performance and Accountability, Twelfth Judicial Circuit, Venice, Florida; Jack A. Moring, Chair, Family Law Rules Committee, Crystal River, Florida; Judge Nikki A. Clark, First District Court of Appeal, Tallahassee, Florida; and Randall L. Gilbert and Ronald E. Kaufman of Gilbert and Kaufman, P.A., Holleywood, Florida Responding with Comments.
   PER CURIAM.

This matter is before the Court for consideration of comments concerning this Court’s recent amendments to the Florida Rules of Civil Procedure, Forms for Use with Rules of Civil Procedure, Florida Family Law Rules of Procedure, and Florida Supreme Court Approved Family Law Forms in response to a petition filed by the Task Force on the Management of Cases Involving Complex Litigation (Task Force). See In re Amendments to the Fla. Rules of Civil Procedure — Mgmt. of Cases Involving Complex Litig., 15 So.3d 558 (Fla.2009). The comments we received primarily relate to the amended Civil Cover Sheet, Form 1.997 and the new Family Court Cover Sheet, Form 12.928. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

On July 1, 2009, the Court published for comment in The Florida Bar News the following rules and forms: Florida Rule of Civil Procedure 1.201 (Complex Litigation); Florida Rule of Civil Procedure 1.440 (Setting Action for Trial); Form for Use with Rules of Civil Procedure 1.997 (Civil Cover Sheet); Form for Use with Rules of Civil Procedure 1.998 (Final Disposition Form); Florida Family Law Rule of Procedure 12.100 (Pleadings and Motions); Florida Family Law Rule of Procedure 12.201 (Complex Litigation); and Florida Supreme Court Approved Family Law Form 12.928 (Family Court Cover Sheet).

The Court received five comments, which addressed only rules 12.100 and 12.015 and forms 1.997, 1.998, and 12.928. Each of the comments — which were filed by (1) The Honorable Lauren C. Laughlin, Circuit Court Judge, Sixth Judicial Circuit; (2) the Commission on Trial Court Performance and Accountability (TCP & A); (3) Lawyer Randall L. Gilbert; (4) the Family Law Rules Committee; and (5) the Steering Committee on Families and Children in the Court — offered specific, helpful suggestions to improve these forms and rules. The Task Force filed a response to the comments. In its response, the Task Force expressed approval of all of the revisions suggested by the commenters.

AMENDMENTS

Upon consideration, we amend forms 1.997 and 1.998 as suggested by the Task Force and commenters with only minor modifications as shown in the appendix. The Task Force’s response to the comments also considered and incorporated the proposed amendments to the civil cover sheet, form 1.997, made in the emergency rule proposal in In re Amendments to Rules of Civil Procedure and Forms for Use with Rules of Civil Procedure, No. SC09-1460 (Fla. petition filed Aug. 17, 2009), which was filed by the Court’s Task Force on Residential Mortgage Foreclosure Cases (TFRMFC). Accordingly, those amendments are also adopted here.

Next, we amend form 12.928 as suggested by the comments. Because form 12.928 as shown in the appendix to this opinion is fully engrossed, we briefly describe the amendments being made to the form from the version adopted by the Court in its earlier opinion. Initially, we amend the form’s title to “Cover Sheet for Family Court Cases” to more accurately describe the need to file the cover sheet in actions covered by both the Florida Family Law Rules of Procedure and the Florida Rules of Juvenile Procedure. In part II of the form, under “Type of Action/Proeeeding,” we add an “Other” category and define it in the instructions to include “All reopening actions not involving modification/supplemental petitions or petition enforcement” to more accurately capture information on these cases that might otherwise be missed and, therefore, underreported. We add the categories of “Shelter Petition,” “Termination of Parental Rights Arising Out of Chapter 39,” “Adoption Arising Out Of Chapter 39,” and “CINS/FINS” for these same reasons. “Dating Violence,” “Repeat Violence,” and “Sexual Violence” are now separate categories, instead of subcategories of “Domestic Violence.” As these were the only subcategories on the form, we remove language in the form and directions concerning subcategories.

More descriptive titles are being given to “Support IV-D,” “Support Non-IV-D,” “UIFSA IV-D,” and “UIFSA Non-IV-D” to assist persons appearing pro se in properly completing the form. A nonlawyer signature block is being added to the end of the form and other nonsubstantive changes are being made to conform to the other family law forms. Finally, the check boxes are replaced with blanks and the letters assigned to each category in the instructions portion of the form are added to the categories on the form itself for ease of cross-reference in completing the form.

We also amend form 12.928 to make it a Florida Family Law Rule of Procedure Form, as opposed to a Florida Supreme Court Approved Family Law Form, as requested by the Family Law Rules Committee. This change will require the Family Law Rules Committee to be responsible for proposing amendments and corrections to the form as necessary. In proposing amendments to the form, the Family Law Rules Committee is to consult with the Juvenile Rules Committee and the Steering Committee on Families and Children in the Court.

Our intent is to ensure that form 12.928, as adopted herein, is filed in all cases under the Florida Family Law Rules of Procedure or the Florida Rules of Juvenile Procedure. To this purpose, we amend Florida Family Law Rule of Procedure 12.015 (Family Law Forms) to identify form 12.928 as a Florida Family Law Rules of Procedure Form and rule 12.100 to require a party opening or reopening a case under the family law rules to file form 12.928 with the clerk of the circuit court. As there is currently no juvenile rule requiring use of this form, we request that the Juvenile Court Rules Committee propose amendments to the juvenile rules to require use of form 12.928 in all cases filed under those rules as quickly as possible using the fast-track rule amendment process.

CONCLUSION

Accordingly, we amend Forms for Use with Rules of Civil Procedure 1.997 (Civil Cover Sheet) and 1.998 (Final Disposition Form), Florida Family Law Rules of Procedure 12.015 (Family Law Forms) and 12.100 (Pleadings and Motions), and Florida Supreme Court Approved Family Law Form 12.928 (Family Court Cover Sheet) as set forth in the appendix to this opinion. Form 12.928 is set forth fully engrossed. In the remaining forms and rules, new language is indicated by underscoring; deletions are indicated by struck-through type. As previously set forth in our prior opinion in this case issued in May 2009, the amendments to form 1.997 (Civil Cover Sheet) and form 12.928 (Family Court Cover Sheet) shall become effective January 1, 2010, at 12:01 a.m. The remainder of the amendments shall become effective immediately.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

FORM 1.997. INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET

Plaintiff must file this cover sheet with first paperwork filed in the action or proceeding (except small claims cases or other county court cases, probate, or family cases). Domestic and juvenile cases should be accompanied by a completed Family Court Cover-Sheet, Florida Supreme Court-Approved Family Law Form 3&92gFlorida Family Law Rules of Procedure Form 12.928, Cover Sheet for Family Court Cases. Failure to file a civil cover sheet in any civil case other than those excepted above may result in sanctions.

I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original complaint or petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of plaintiffs) and defendant(s).

II. Type of Case. Place an “X” in the appropriate box. If the cause fits more than one type of case, select the most definitive. If the most definitive label is a subcategory (indented under a broader category label), place an “X” in the category and subeategory boxes. Definitions of the cases are provided below in the order they appear on the form.

(A) Condominium — all civil lawsuits pursuant to Chapter 718, Florida Statutes, in which a condominium association is a party-

(B) Contracts and indebtedness — -all contract actions relating to promissory notes and other debts, including those arising from the sale of goods, but excluding contract disputes involving condominium associations.

(C) Eminent domain — all matters relating to the taking of private property for public use, including inverse condemnation by state agencies, political subdivisions, or public service corporations.

(D) Auto negligence — all matters arising out of a party’s allegedly negligent operation of a motor vehicle.

(E) Negligence — other—all actions sounding in negligence, including statutory claims for relief on account of death or injury, that are not included in other main categories.

(F) Business governance — all matters relating to the management, administration, or control of a company.

(G) Business torts — all matters relating to liability for economic loss allegedly caused by interference with economic or business relationships.

(H) Environmental/Toxic tort — all matters relating to claims that violations of environmental regulatory provisions or exposure to a chemical caused injury or disease.

(I) Third party indemnification — all matters relating to liability transferred to a third party in a financial relationship.

(J) Construction defect — all civil lawsuits pursuant to Chapter 558, Florida Statutes, in which damage or injury was allegedly caused by a failure to follow-acceptable construction trade standards defects in the construction of a structure.

(K) Mass tort — all matters relating to a civil action involving numerous plaintiffs against one or more defendants.

(L) Negligent security — all matters involving injury to a person or property allegedly resulting from insufficient security.

(M) Nursing home negligence — all matters involving injury to a nursing home resident resulting from negligence of nursing home staff or facilities.

(N) Premises liability — commercial—all matters involving injury to a person or property allegedly resulting from a defect on the premises of a commercial property.

(O) Premises liability — residential—all matters involving injury to a person or property allegedly resulting from a defect on the premises of a residential property.

(P) Products liability — all matters involving injury to a person or property allegedly resulting from the manufacture or sale of a defective product or from a failure to warn.

(Q) Real property/Mortgage foreclosure— all matters relating to the possession, title, or boundaries of real property. All matters involving foreclosures or sales of real property, including foreclosures associated with condominium associations or condominium units.

(R) Commercial foreclosure — all matters relating to the termination of a business owner’s interest in commercial property by a lender to gain title or force a sale to satisfy the unpaid debt secured by the property. Check the category that includes the estimate of the amount in controversy of the claim (section 28.241, Florida Statutes).

(S) Homestead Presidential foreclosure— all matters relating to the termination of a residential property owner’s interest by a lender to gain title or force a sale to satisfy the unpaid debt secured by the property where the property has been granted a homestead exemption. Check the category that includes the estimate of the amount in controversy of the claim (section 28.241, Florida Statutes).

(T) Nonhomestead residential foreclosure — all matters relating to the termination of a residential property owner’s interest by a lender to gain title or force a sale to satisfy the unpaid debt secured by the property where the property has not been granted a homestead exemption. Check the category that includes the estimate of the amount in controversy of the claim (section 28.241, Florida Statutes).

(U) Other real property actions — all matters relating to land, land improvements, or property rights not involving commercial or residential foreclosure. Check the category that includes the estimate of the amount in controversy of the claim (section 28.241, Florida Statutes).

(V) Professional malpractice — all professional malpractice lawsuits.

(W) Malpractice — business—all matters relating to a business’s or business person’s failure to exercise the degree of care and skill that someone in the same line of work would use under similar circumstances.

(X) Malpractice — medical—all matters relating to a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.

(Y) Malpractice — other professional — all matters relating to negligence of those other than medical or business professionals.

(Z) Other — all civil matters not included in other categories.

(AA) Antitrust/Trade regulation — all matters relating to unfair methods of competition or unfair or deceptive business acts or practices.

(AB) Business transactions — all matters relating to actions that affect financial or economic interests.

(AC) Constitutional challenge — statute or ordinance — a challenge to a statute or ordinance, citing a violation of the Florida Constitution.

(AD) Constitutional challenge — proposed amendment — a challenge to a legislatively initiated proposed constitutional amendment, but excluding challenges to a citizen-initiated proposed constitutional amendment because the Florida Supreme Court has direct jurisdiction of such challenges.

(AE) Corporate trusts — all matters relating to the business activities of financial services companies or banks acting in a fiduciary capacity for investors.

(AF) Discrimination — employment or other — all matters relating to discrimination, including employment, sex, race, age, handicap, harassment, retaliation, or wages

(AG) Insurance claims — all matters relating to claims filed with an insurance company.

(AH) Intellectual property — all matters relating to intangible rights protecting commercially valuable products of the human intellect.

(AI) Libel/Slander — all matters relating to written, visual, oral, or aural defamation of character.

(AJ) Shareholder derivative action — all matters relating to actions by a corporation’s shareholders to protect and benefit all shareholders against corporate management for improper management.

(AK) Securities litigation — all matters relating to the financial interest or instruments of a company or corporation.

(AL) Trade secrets — all matters relating to a formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors.

(AM) Trust litigation — all civil matters involving guardianships, estates, or trusts and not appropriately filed in probate proceedings.

III. Remedies Sought. Place an “X” in the appropriate box. If more than one remedy is sought in the complaint or petition, check all that apply.

IV. Number of Causes of Action. If the complaint or petition alleges more than one cause of action, note the number and the name of the cause of action.

V. Class Action. Place an “X” in the appropriate box.

VI. Related Cases. Place an “X” in the appropriate box.

VII. Is Jury Trial Demanded In Complaint? Check the appropriate box to indicate whether a jury trial is being demanded in the complaint

ATTORNEY OR PARTY SIGNATURE. Sign the civil cover sheet. Print legibly the name of the person signing the civil cover sheet. Attorneys must include a Florida Bar number. Insert the date the civil cover sheet is signed. Signature is a certification that the filer has provided accurate information on the civil cover sheet.

INSTRUCTIONS FOR ATTORNEYS COMPLETING FINAL

DISPOSITION FORM

I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original complaint or petition, the name of the judge assigned to the case and the names (last, first, middle initial) of plaintiff(s) and defendant(s).

II. Means of Final Disposition. Place an “x” in the appropriate major category box and in the appropriate subcategory box, if applicable. The following are the definitions of the disposition categories.

(A) Dismissed Before Hearing — the case is settled, or voluntarily dismissed, or otherwise disposed of before a hearing is held;

(B) Dismissal Pursuant to Settlement— Before Hearing — the case is voluntarily dismissed by the plaintiff after a settlement is reached without mediation before a hearing is held;

(C) Dismissal Pursuant to Mediated Settlement — Before Hearing — the case is voluntarily dismissed by the plaintiff after a settlement is reached with mediation before a hearing is held;

(D) Other — Before Hearing — the case is dismissed before hearing in an action that does not fall into one of the other disposition categories listed on this form.

(B) (E) Dismissed After Hearing- — the case is dismissed by a judge, voluntarily dismissed, or settled after a hearing is held;

(F)Dismissal Pursuant to Settlement— After Hearing — the case is voluntarily dismissed by the plaintiff after a settlement is reached without mediation after a hearing is held;

(G) Dismissal Pursuant to Mediated Settlement — After Hearing — the case is voluntarily dismissed by the plaintiff after a settlement is reached with mediation after a hearing is held;

(H) Other-After Hearing-the case is dismissed after hearing in an action that does not fall into one of the other disposition categories listed on this form.

(G)(1) Disposed by Default — a defendant chooses not to or fails to contest the plaintiffs allegations and a judgment against the defendant is entered by the court;

(P)(J) Disposed by Judge — a judgment or disposition is reached by the judge in a case that is not dismissed and in which no trial has been held. Includes stipulations by the parties, conditional judgments, summary judgment after hearing, and any matter in which a judgment is entered excluding cases disposed of by default as in category (e)(1) above;

(E)(K) Disposed by Non-Jury Trial— the case is disposed as a result of a contested trial in which there is no jury and in which the judge determines both the issues of fact and law in the case;

(E)(L) Disposed by Jury Trial — the case is disposed as a result of a jury trial (consider the beginning of a jury trial to be when the jurors and alternates are selected and sworn);

(G) Dismissal Pursuant to Settlement— the case is voluntarily dismissed — by—the plaintiff after a settlement is reached without-mediation;

(-H-)-Dismissal — Pursuant—fee—Mediated Befefelemenfe-fehe — ease—is voluntarily — dismissed-by-the plaintiff-after- a settlement is reached with mediation;

(I)(M) Other — the ease is consolidated, submitted to arbitration or mediation, transferred, or otherwise disposed of by other means not listed in categories (A) through (H)(L).

DATE AND ATTORNEY SIGNATURE.

Date and sign the final disposition form.

RULE 12.015.FAMILY LAW FORMS

(a)Forms Adopted as Rules. The forms listed in this rule shall be adopted by the rulemaking process in Fla. R. Jud. Admin. 2.140. The Family Law Rules Committee of The Florida Bar shall propose amendments to these forms and any associated instructions. These forms shall be designated “Florida Family Law Rules of Procedure Forms.” Forms coming under this provision are:

(1)12.900(a), Disclosure From Nonlaw-yer;

(2)12.900(b), Notice of Limited Appearance;

(3)12.900(c), Consent to Limited Appearance by Attorney;

(4)12.900(d), Termination of Limited Appearance;

(5)12.900(e), Acknowledgment of Assistance by Attorney;

(6)12.900(f), Signature Block for Attorney Making Limited Appearance;

(7) 12.900(g), Agreement Limiting Representation;

(8) 12.900(h), Notice of Related Cases;

(9) 12.901(a), Petition for Simplified Dissolution of Marriage;

(10) 12.902(b), Family Law Financial Affidavit (Short Form);

(11) 12.902(c), Family Law Financial Affidavit;

(12) 12.902(e), Child Support Guidelines Worksheet;

(13) 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage;

(14) 12.910(a), Summons: Personal Service on an Individual;

(15) 12.913(b), Affidavit of Diligent Search and Inquiry;

(16) 12.913(c), Affidavit of Diligent Search;

(17) 12.920(a), Motion for Referral to General Magistrate;

(18) 12.920(b), Order of Referral to General Magistrate;

(19) 12.920(c), Notice of Hearing Before General Magistrate;

(20) 12,928, Cover Sheet for Family Court Cases;

(201) 12.930(a), Notice of Service of Standard Family Law Interrogatories;

(212) 12.930(b), Standard Family Law Interrogatories for Original or Enforcement Proceedings;

(223) 12.930(c), Standard Family Law Interrogatories for Modification Proceedings;

(234) 12.932, Certificate of Compliance with Mandatory Disclosure; and

(245) 12.990(a), Final Judgment of Simplified Dissolution of Marriage.

(b)Other Family Law Forms. All additional Supreme Court approved forms shall be adopted by opinion of the Supreme Court of Florida and outside of the rulemaking procedures required by rule 2.140. These forms shall be designated “Florida Supreme Court Approved Family Law Forms.”

Commentary

2000 Adoption. To help the many people in family law court cases who do not have attorneys to represent them (pro se litigants), the Florida Supreme Court added simplified forms and directions to the Florida Family Law Rules of Procedure when adopting the rules in 1995. These forms initially had been adopted by the Court in In re Family Law Rules of Procedure, 663 So.2d 1049 (Fla.1995); In re Petition for Approval of Forms Pursuant to Rule 10-1.1(b) of the Rules Regulating the Florida Bar — Stepparent Adoption Forms, 613 So.2d 900 (Fla.1992), and Rules Regulating The Florida Bar — Approval of Forms, 581 So.2d 902 (Fla.1991).

In 1997, in an effort to fulfill the spirit of the Courts directives to simplify the process of litigation in family law matters, the Family Court Steering Committee completely revised the existing forms and added new forms and instructions. The rules and forms then constituted more than 500 pages.

Subdivision (b) of Tthis rule was adopted in recognition that the forms would require continuous updating and that the rulemak-ing process was too cumbersome for such an undertaking.

2009 Amendment. In 2009, Subdivision (a)(20) was adopted to require the filing of a Cover Sheet for Family Court Cases, Form 12.928, in every proceeding to which the Florida Family Law Rules of Procedure apply and to require the Family Law Rules Committee to be responsible for proposing amendments as necessary.

RULE 12.100.PLEADINGS AND MOTIONS

Pleadings and motions shall be governed by Florida Rule of Civil Procedure 1.100, except that

(a) the party opening or reopening a case under these rules shall file with the clerk of the circuit court Florida Family Law Rules of Procedure Form 12.928, Cover Sheet for Family Court Cases; and

(b) the requirement in rule 1.100(c)(3) that parties file a final disposition form with the clerk if the action is settled without a court order or judgment being entered or if the action is dismissed by the parties, shall not apply to proceedings governed by these rules.

Commentary

1995 Adoption. This rule provides that pleadings and motions are to be governed by Florida Rule of Civil Procedure 1.100. The cover sheets and disposition forms described in that rule shall be the same cover sheets and disposition forms used in family law proceedings.

Florida Family Law Rules of Procedure Form 12.928,

Cover Sheet for Family Court Cases (01/10)

When should this form be used?

The Cover Sheet for Family Court Cases and the information contained in it neither replace nor supplement the filing and service of pleadings or other documents as required by law. This form shall be filed by the petitioner/party opening or reopening a case for the use of the clerk of the circuit court for the purpose of reporting judicial workload data pursuant to Florida Statutes section 25.075.

This form should be typed or printed in black ink. The petitioner must file this cover sheet with the first pleading or motion filed to open or reopen a case in all domestic and juvenile cases.

What should I do next?

Follow these instructions for completing the form:

I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of the petitioner(s) and respondent(s).

II. Type of Action /Proceeding. Place a check beside the proceeding you are initiating. If you are simultaneously filing more than one type of proceeding against the same opposing party, such as a modification and an enforcement proceeding, complete a separate cover sheet for each action being filed.

(A) Initial Action/Petition

(B) Reopening Case. If you check “Reopening Case,” indicate whether you are filing a modification or supplemental petition or an action for enforcement by placing a check beside the appropriate action/petition.

1. Modification/Supplemental Petition

2. Motion for Civil Contempt/ Enforcement

3. Other — All reopening actions not involving modification/supplemental petitions or petition enforcement.

III. Type of Case. Place a check beside the appropriate case. If the case fits more than one category, select the most definitive. Definitions of the categories are provided below.

(A) Simplified Dissolution of Marriage petitions for the termination of marriage pursuant to Florida Family Law Rule of Procedure 12.105.

(B) Dissolution of Marriage — petitions for the termination of marriage pursuant to Chapter 61, Florida Statutes, other than simplified dissolution.

(C) Domestic Violence — all matters relating to injunctions for protection against domestic violence pursuant to section 741.30, Florida Statutes.

(D) Dating Violence — all matters relating to injunctions for protection against dating violence pursuant to section 784.046, Florida Statutes.

(E) Repeat Violence — all matters relating to injunctions for protection against repeat violence pursuant to section 784.046, Florida Statutes.

(F) Sexual Violence — all matters relating to injunctions for protection against sexual violence pursuant to section 784.046, Florida Statutes.

(G) Support — IV-D—all matters relating to child or spousal support in which an application for assistance has been filed with the Department of Revenue, Child Support Enforcement under Title IV-D, Social Security Act, except for such matters relating to dissolution of marriage petitions (sections 409.2564, 409.2571, and 409.2597, Florida Statutes), paternity, or UIFSA.

(H) Support-Non — IV-D—all matters relating to child or spousal support in which an application for assistance has not been filed under Title IV-D, Social Security Act.

(I) UIFSA — IV-D—all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has been filed under Title IV-D, Social Security Act.

(J) UIFSA-Non IV-D — all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has not been filed under Title IV-D, Social Security Act.

(K) Other Family Court — all matters involving time-sharing and/or parenting plans relating to minor child(ren), support unconnected with dissolution of marriage, annulment, delayed birth certificates pursuant to Florida Statutes section 382.0195, expedited affirmation of parental status pursuant to Florida Statutes section 742.16, termination of parental rights proceedings pursuant to Florida Statutes section 63.087, declaratory judgment actions related to premarital, marital, post-marital agreements, or other matters not included in the categories above.

(L) Adoption Arising Out of Chapter 63 — all matters relating to adoption pursuant to Chapter 63, Florida Statutes, excluding any matters arising out of Chapter 39, Florida Statutes.

(M) Name Change — all matters relating to name change, pursuant to section 68.07, Florida Statutes.

(N) Paternity/Disestablishment of Paternity — all matters relating to paternity pursuant to Chapter 742, Florida Statutes.

(O) Juvenile Delinquency — all matters relating to juvenile delinquency pursuant to Chapter 985, Florida Statutes.

(P) Petition for Dependency — all matters relating to petitions for dependency.

(Q) Shelter Petition — all matters relating to shelter petitions pursuant to Chapter 39, Florida Statutes.

(R) Termination of Parental Rights Arising Out of Chapter 39 — all matters relating to termination of parental rights pursuant to Chapter 39, Florida Statutes.

(S) Adoption Arising Out of Chapter 39 — all matters relating to adoption pursuant to Chapter 39, Florida Statutes.

(T) CINS/FINS — all matters relating to children in need of services (and families in need of services) pursuant to Chapter 984, Florida Statutes.

ATTORNEY OR PARTY SIGNATURE.

Sign the Cover Sheet for Family Court Cases. Print legibly the name of the person signing the Cover Sheet for Family Court Cases. Attorneys must include a Florida Bar number. Insert the date the Cover Sheet for Family Court Cases is signed. Signature is a certification that filer has provided accurate information on the Cover Sheet for Family Court Cases.

Nonlawyer Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For further information, see Rule 12.100, Florida Family Law Rules of Procedure.

Cover Sheet for Family Court Cases

      . None of the comments pertained to Florida Rules of Civil Procedure 1.201 or 1.440 or to Florida Family Law Rule of Procedure 12.201. Therefore, these rules remain as amended in In re Amendments to the Florida Rules of Civil Procedure — Management of Cases Involving Complex Litigation, 15 So.3d 558 (Fla.2009).

      . We carefully considered the Task Force's and the TCP & A’s suggestions concerning an administrative amendment process for the amendment of forms 1.997 and 12.928. While we recognize certain advantages to amending the cover sheets through an administrative process, we currently have no specific process in place that would streamline the adoption of changes to these cover sheets. Certainly, if the TCP & A would like to propose such a process for the future, we would consider any such proposal.


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.992(B).
    No. SC09-1670.
    Supreme Court of Florida.
    Dec. 3, 2009.
    Judge O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Eighteenth Judicial Circuit, Sanford, Florida, for Petitioner.
   PER CURIAM.

We have for consideration proposed amendments to Florida Rule of Criminal Procedure 3.992(b), Supplemental Criminal Punishment Code Scoresheet. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes amendments to rule 3.992(b) in light of chapter 2009-64, section 2, Laws of Florida, amending section 921.0026, Florida Statutes (2009).

After considering the Committee’s proposals and reviewing the relevant legislation, we adopt the proposed amendments to rule 3.992(b), as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendments shall become effective immediately upon release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . An original and nine paper copies of all comments must be filed with the Court on or before February 1, 2010, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable O. H. Eaton, Jr., Circuit Judge, c/o Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until February 22, 2010, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


author: PER CURIAM. LAWSON, J., PER CURIAM. TORPY, J.,

text:
    Arthur LaVALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3240.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    Order Denying Rehearing and Granting Certification March 26, 2010.

      Wm. J. Sheppard, D. Gray Thomas and Bryan E. DeMaggio of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Jeffrey R. Casey and L. Charlene Matthews, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Arthur LaValley, challenges his convictions on three counts of sexual battery on a child between twelve and eighteen years old by a person in familial or custodial authority, and one count of lewd or lascivious molestation of a child by a person over eighteen on a victim between twelve and sixteen years old. He challenges the lower court’s determination that he was limited to six peremptory challenges during jury selection. He also challenges the introduction of collateral crime evidence. We affirm.

Pursuant to section 913.08(1), Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.350(a)(l)-(2), a criminal defendant is entitled to ten peremptory challenges where the “offense charged is punishable by death or imprisonment for life,” but only six peremptory challenges where the “offense charged is [a felony punishable by imprisonment for more than 12 months but is] not punishable by death or imprisonment for life.” Appellant was charged with three first-degree felonies and one second-degree felony. Under section 775.082(3)(b), Florida Statutes, a person convicted of a “felony of the first degree, [may be punished] by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” (Emphasis added).

During jury selection, Appellant argued to the trial court that he was entitled to ten peremptory challenges because, by statute, if he was convicted as charged, he could be sentenced to life imprisonment. The State also informed the court that if Appellant was convicted as charged and the jury found that penetration occurred, as alleged in two of the sexual battery counts, then “points wise” Appellant could be sentenced to life. The trial court noted that Appellant was charged with a first-degree felony, not a life felony, and ruled that he was only entitled to six peremptory challenges. Although the court acknowledged that Appellant’s scoresheet points could subject him to a life sentence, it concluded that this fact did not affect the application of rule 3.350. We agree.

Appellant was charged with three first-degree felonies and one second-degree felony, none of which carry life sentences. He faced life imprisonment only if the jury found him guilty as charged on all four counts and found that penetration occurred in the sexual battery counts. Section 913.08 and rule 3.350 link the number of peremptory challenges to the “offense charged,” in the singular. This is determined by looking at each count in isolation. If any offense charged is punishable by life, then the number of peremptory challenges is increased to ten. Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006), relied upon by Appellant, does not hold to the contrary. There, the defendant was charged with a single offense that subjected him to a life sentence.

Our interpretation of rule 3.350 is consistent with the interpretation given by the federal courts to the similarly-worded federal rule. For example in United States v. Machado, 195 F.3d 454 (9th Cir.1999), the defendant argued that he was entitled to an increased number of peremptory challenges because he was charged with two separate counts, the punishment for which, when aggregated, could exceed the threshold for an increased number of challenges. Focusing on the “offense charged” language of Federal Rule 24, the court concluded that the number of peremptory challenges must be determined by “look[ing] at each offense charged and de-termin[ing] the punishment for that offense.” Id. at 457; see United States v. Hutchings, 751 F.2d 230, 237 (8th Cir.1984) (joinder of multiple counts in one indictment does not entitle defendant to increased number of peremptory challenges); United States v. Nelson, 733 F.2d 364, 368 (5th Cir.1984) (trial court did not err in refusing to grant more than ten peremptory challenges to defendant charged under four-count indictment); United States v. Ming, 466 F.2d 1000, 1006 (7th Cir.1972) (potential punishment under multiple counts not aggregated to determine number of challenges); Estes v. United States, 335 F.2d 609, 615 (5th Cir.1964) (defendant charged with eighteen separate counts correctly limited to ten peremptory challenges).

Appellant also challenges the admission of certain Williams rule evidence. Appellant’s adopted daughter is the victim in all four counts. To corroborate the victim’s testimony, the State introduced evidence of Appellant’s prior sexual molestation of his biological daughter. The biological daughter, who was an adult by the time of trial, testified that Appellant molested her when she was a teenager, specifically stating that he fondled and sucked on her breasts, and gave her hickeys on her breasts and neck.

Appellant argues that the court abused its discretion by allowing this Williams rule evidence because it was unduly prejudicial and described acts so dissimilar to the charged acts that it lacked relevancy. We disagree. Rulings with regard to relevancy and admissibility of evidence are subject to an abuse of discretion standard of review. San Martin v. State, 717 So.2d 462, 470-71 (Fla.1998); Fisher v. State, 924 So.2d 914, 916 (Fla. 5th DCA 2006); see Mendez v. State, 961 So.2d 1088, 1090 (Fla. 5th DCA 2007) (abuse of discretion standard applies to admissibility of Williams rule evidence). Discretion is abused when the judicial action taken is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the view taken by the trial court. Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007).

Section 90.404(2)(b)l., Florida Statutes (2006), broadens the admissibility of similar fact evidence in child molestation cases and provides that when a defendant is charged with a crime involving child molestation, “evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” Nonetheless, relevancy remains the threshold consideration for the admission of the evidence and even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2006); citing McLean v. State, 934 So.2d 1248 (Fla.2006).

In McLean, the supreme court identified the following four non-exclusive factors for trial courts to evaluate in determining whether to admit evidence of previous molestations by the defendant:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.

Id. Appellant argues that the collateral crimes evidence lacked similarity to the charged crime because it involved fondling and sucking of the breasts and neck, while the charged offenses involved vaginal and oral intercourse. Appellant’s argument ignores the fact that Count IV of the information charged him with lewd or lascivious molestation by, among other things, “handling or fondling” the victim’s breasts. It also ignores the victim’s testimony that her molestation began with fondling her breasts and vagina before progressing to oral and vaginal sex.

The collateral witness’s testimony was sufficiently similar to the allegations in Count IV and to the victim’s testimony of how the molestation began with her. In addition, both victims were female and approximately the same age when the molestations occurred — both testified that they were about twelve to fifteen years old when Appellant molested them. The molestations of both girls occurred within the familial context, inside the home. Finally, although the molestations occurred years apart, that appears more to be a function of opportunity than anything else. The biological daughter testified that her molestation lasted until she was around fifteen (in 1988); the adopted daughter did not begin living with Appellant until several years later in 1999. As the court stated in Heuring v. State, 513 So.2d 122, 124 (Fla.1987), “the opportunity to sexually batter young children in the familial setting often occurs only generationally. Heuring sexually battered the young female members of his family when the opportunity arose.”

The collateral testimony met the standards set forth in McLean for admission of collateral crime evidence. The collateral crime was proven by clear and convincing evidence, its probative value was not outweighed by the danger of unfair prejudice, it was not made a feature of the trial, and the court instructed the jury on the limited purpose for the testimony. The trial court did not abuse its discretion in admitting the biological daughter’s testimony concerning the molestation she endured from Appellant.

We have reviewed Appellant’s other claims of error and find them to be without merit.

AFFIRMED.

MONACO, C.J., GRIFFIN, SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, COHEN and JACOBUS, JJ., concur.

LAWSON, J., concurs and concurs specially with opinion in which SAWAYA and COHEN, JJ., concur.

LAWSON, J.,

concurring specially.

The majority properly resolves this case by applying the plain language of section 913.08, Florida Statutes, and Florida Rule of Criminal Procedure 3.350, which link the number of peremptory challenges to the “offense charged,” in the singular. I write first to note that although our holding in this case is consistent with the result in Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006), it is not wholly consistent with the reasoning in that case. Buchanan should have been decided based simply upon the long-standing case law treating possession of a firearm as “an essential element of the crime charged” whenever section 775.087(2), Florida Statutes, is invoked. See, e.g., Mesa v. State, 632 So.2d 1094, 1097 (Fla. 3d DCA 1994). Under this precedent, the “offense charged” carries a life sentence whenever the state alleges the additional elements necessary for imposition of a minimum mandatory sentence of life under section 775.087(2).

I also question the per se reversal standard adopted by the panel in Buchanan. In Bushy v. State, 894 So.2d 88, 98 (Fla.2004), the supreme court noted that peremptory challenges are not constitutionally guaranteed at the state or federal level. See also Wilson v. State, 304 So.2d 119, 121 (Fla.1974) (“While the right to trial by jury in a case of this nature is fundamental, the exact number of persons prescribed to constitute a trial jury panel, as well as enumerated peremptory challenges, is a procedural process.... Additional review by our Court reveals that the use or lack of use of the peremptory challenges fails to demonstrate any prejudicial, harmful or reversible error.”') (citations omitted) (emphasis added). In a similar context, it is well-established that a defendant who claims to have been wrongfully forced to exhaust his peremptory challenges must also establish prejudice by demonstrating that an objectionable juror actually served on the jury (i.e., one that the defendant either unsuccessfully challenged for cause or otherwise objected to after his or her peremptory challenges were exhausted), before an appellate court will reverse his or her conviction. See Busby, 894 So.2d at 96-97. A similar rule should apply here. And, in the appropriate case, I believe that our court should revisit the per se reversal rule announced in Buchanan for cases in which a defendant is not afforded the appropriate number of peremptory challenges.

SAWAYA and COHEN, JJ., concur.

ON MOTION FOR REHEARING AND FOR CERTIFICATION

PER CURIAM.

We deny the motion for rehearing but grant the motion for certification. We rephrase and certify the following question as one of great public importance:

When a criminal defendant is tried on multiple counts and none of the counts, individually, is punishable by life imprisonment, but where the defendant is exposed to a life sentence if convicted of more than one count, after assessment of all possible sentence points, is the defendant entitled to ten peremptory challenges as a matter of right?

MOTION DENIED; QUESTION CERTIFIED.

MONACO, C.J., SAWAYA, PALMER, ORFINGER, EVANDER, and COHEN, JJ., concur.

TORPY, J., concurs in part and dissents in part, with opinion, in which GRIFFIN, LAWSON and JACOBUS, JJ„ concur.

TORPY, J.,

concurring in part and dissenting in part.

I concur that we should deny the motion for rehearing but would not grant the request for certification. In his motion for rehearing, Appellant urges that our decision contravenes Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which Appellant says established a “wholly different legal landscape.” Apprendi was predicated on the constitutional right to a jury trial and held that a defendant has the constitutional right to have a jury decide all the facts that bear on the magnitude of the defendant’s punishment, except his or her prior record. Apprendi has no bearing on the issue in this case. There is no constitutional entitlement to peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 57,112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Thus, this case presents a pure question of statutory/rule construction, nothing more. The statute, section 913.08(1), Florida Statutes, specifies that the number of challenges is determined from the “offense charged,” in the singular. The corresponding rule of criminal procedure, rule 3.350(c), makes clear that in a multi-count information, it is the individual count that allows for the greatest number of challenges, considered in isolation, that dictates the number of peremptory challenges for the case.

Our construction of the statute is consistent with its plain language, the rule and the construction given by courts of other jurisdictions construing similarly worded statutes and rules. Appellant essentially seeks to have us re-write the texts of both the statute and rule but has offered no authority in support of the construction he urges other than our panel decision in Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006). We have addressed and distinguished Buchanan, Given the lack of any constitutional question, the plain dictates of the statute and rule, and the fact that the only precedent on which Appellant relies is our precedent, which the full court has now explained and distinguished, I cannot conclude that there exists a question of great public importance that necessitates resolution by our high court.

GRIFFIN, LAWSON and JACOBUS, JJ., concur.

Is a criminal defendant entitled to ten peremptory challenges ... where a calculation of total sentence points ... could subject the defendant to life imprisonment?

      . § 794.011(l)(h) & (8)(b), Fla. Stat. (2006).

      . § 800.04(5)(a) & (c)2„ Fla. Stat. (2006).

      .Pursuant to section 921.0024(2), Florida Statutes, if a defendant's scoresheet points are greater than or equal to 363, the court may sentence the defendant to life imprisonment.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . That there is some disparity between the victim and Williams rule witness's molestations is not unlike the situation in McLean where the victim (J.N.) was digitally penetrated on one occasion, whereas the Williams rule victim (Chambers) suffered repeated encounters, including one in which he believed McLean’s penis penetrated his anus. McLean, 934 So.2d at 1252-53.

      . The rule affords discretion to the trial judge to confer additional challenges. In this case, Appellant did not argue that the trial judge abused his discretion under this rule. Nor did Appellant argue that the statute controls over the rule. In fact, neither Appellant nor Appellee addressed this particular subsection of the rule at all.

      . Appellant’s proposed certified question illustrates this point:

      .Even accepting Appellant’s contention that "exceptional importance" is synonymous with "great public importance,” the fact that we considered this case en banc should not be taken to mean that we thought it involved an issue of exceptional importance as suggested by Appellant. We voted to hear the case en banc before releasing the panel decision. It is just as likely that we considered the case en banc to maintain uniformity in our decisions.


author: RAMIREZ, C.J.

text:
    Jose VALLADARES, Appellant, v. Jacqueline JUNCO-VALLADARES, Appellee.
    Nos. 3D08-2327, 3D08-1986, 3D08-2868.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2010.

      Michael Lechtman, North Miami Beach, for appellant.
    Marlene S. Reiss, Miami, for appellee.
    Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   RAMIREZ, C.J.

Jose Valladares, the husband, appeals the trial court’s Final Judgment of Dissolution of Marriage and subsequent Amended Final Judgment of Dissolution of Marriage awarding his former wife an equitable distribution award, lump sum alimony, permanent periodic alimony, and child support. The husband also appeals the trial court’s Final Judgment granting attorney’s fees, costs and suit monies to the wife, Jacqueline Junco-Valladares. We affirm the dissolution of the parties’ marriage and the equitable distribution of the parties’ marital home but reverse and remand for further proceedings on the other issues of equitable distribution, alimony, and child support.

I. Factual Background

The parties, husband Jose Valladares and wife Jacqueline Junco-Valladares, were married on December 31, 1992 and separated in January of 2007. The petitioner filed a petition for dissolution of the marriage on March 6, 2007 and the case proceeded to trial on June 13, 2008. This fourteen-year marriage resulted in two minor-children. The children were nine and ten years old at the time of trial; the wife was forty two years old and the husband was seventy years old. The husband also has five adult children from two prior marriages but neither party has other minor children.

The husband is a general surgeon in solo practice. The wife is also a doctor but has never had a license to practice medicine in the State of Florida or elsewhere. The trial court noted in the Amended Final Judgment of Dissolution of Marriage: “it is not reasonable to find that [the] Wife can earn the necessary licenses to practice medicine based on a medical degree earned twenty (20) years ago.” The wife did, however, obtain a master’s degree in public health and is employed full-time with the Veterans Administration Medical Center earning $47,000.00 annually as of 2007.

The record regarding the husband’s income is less clear. At trial, Phillip Schec-ter, the joint financial expert, testified that the husband’s income in 2006 was $256,743, but that he was in arrears for his federal income taxes for both 2005 and 2006. Schecter further testified that the husband had not yet filed his 2007 income tax return. The husband disputed that his current income is as high as Schecter indicated. At trial he stated: “[a]t 70 years of age, I cannot continue to work the same way I was working before. I should have retired ...”

The husband also testified that the net income he derived from his medical practice amounts to an annual salary of $74,000, and he provided a revised financial statement to that effect. In contention between his tabulation and the various tabulations provided by Schecter for the trial court’s perusal, were costs that the husband deducted from the gross receipts of his practice. This included costs he attributed to employee salaries and how rent indebtedness for his medical practice should be recognized.

The husband claimed $36,000 as the rental cost incurred by his medical practice, a sum which Schecter agreed was a fair price. However, in 2007, the husband only paid $10,708 towards the $36,000 rent figure. The husband paid the rent to an entity in which he owned a twenty-five percent interest and the $10,708 sum paid represented only the annual real estate taxes for the property where his medical practice was located. The husband claimed that the unpaid $25,292 balance remaining was debt, “accrued rent not paid” and listed that amount as an expense in his revised financial affidavit. In contrast, Schecter viewed the unpaid amount as additional cash flow since he had in fact only paid out $10,708 for rent.

Ultimately, the trial court determined that the husband’s gross annual income amounted to $179,757 and based its decisions on that sum. Included in the $179,757 figure are social security benefits that the husband received. The husband continued to work beyond the age of retirement, and in addition received a monthly social security benefit of $1,184. Further, because the husband was entitled to social security benefits, his minor children were provided with dependent benefits attributable to their father’s social security benefits. Each minor child received a monthly benefit of $715, payable until they turn eighteen. The trial court redirected the combined children’s $1,430 monthly benefit checks to the wife. Then, based on Schecter’s advice, the trial court imputed the $1,430 monthly social security benefit into the wife’s income. The trial court did not factor the children’s social security benefits into the husband’s income, and it did not offset the children’s social security benefit from the husband’s child support obligations.

The main controversy regarding the division of marital assets involves the Coral Gables waterfront home, in which the couple resided during most of their marriage. This house was purchased by the husband and his first wife in 1978, fourteen-years prior to the marriage at issue, and was titled solely in the husband’s name during the marriage. The home was flooded by Hurricane Andrew in August 1992. The parties were married in December 1992. The testimony was that both parties devoted personal time and attention to the rebuilding, which took four years, and marital funds were used to pay for the maintenance, upkeep and taxes on the property. By statute, a marital asset included “the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(5)(a)2, Fla. Stat. (2007).

At trial, the husband testified that the value of the house was $1,921,000 based on the county’s tax assessment. In contrast, the wife testified that another house down the street had recently sold for $3.6 million and reasoned that the marital home was worth $4 million, since it was larger. She further testified that the fair market value of the residence was $1.5 million at the time they had married. The husband did not object to the wife’s valuations at trial. The trial court accepted the valuations proposed by the wife, determined that the present fair market value of the home was $4 million, and concluded that $2.5 million represented the appreciation of the marital residence during the marriage.

Consequently, the trial court awarded the wife $1.25 million as lump sum alimony based on one-half of the value the marital home appreciated during the marriage. The court also awarded the wife an additional $173,469 equalization payment. This figure was tabulated from pay-downs made to mortgages on the marital home, made during the course of the marriage. The wife was also awarded permanent periodic alimony in the amount of $2,200 per month, child support in the amount of $1,729 per month, attorney’s fees of $65,307.50 and court costs of $1,984.15.

II. Analysis

The standard of review for divorce proceedings is abuse of discretion. “The findings and judgment of the trial court come to us clothed with a presumption of correctness and may not be disturbed upon appeal in the absence of a record demonstrating errors of law.” Merritt v. Williams, 295 So.2d 310, 311 (Fla. 1st DCA 1974). Beyond this deferential standard of review, the husband in the instant action is disadvantaged because he represented himself pro se at trial and failed to preserve issues that he now appeals. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (a claim not raised in the trial court will not be considered on appeal). This Court held in J.T.A. Factors, Inc. v. Philcon Sens., Inc., 820 So.2d 367, 370 (Fla. 3d DCA 2002), that “[a]s a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.”

However, a trial court’s legal conclusions, such as whether an asset constitutes a “marital asset,” are reviewed de novo for clear error. See Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007). A legal conclusion, “not supported by substantial competent evidence in the record” is fundamental error and should be reversed. Beaty v. Cribble, 652 So.2d 1156, 1157 (Fla. 2d DCA 1995). See also Herrera v. Herrera, 673 So.2d 143 (Fla. 5th DCA 1996). Furthermore, the First District Court of Appeal held that “[t]he equitable distribution statute contemplates that the trial court will make adequate findings of fact to explain and justify its rulings.” Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007).

A. Equitable Distribution Award

We turn now to the husband’s points on appeal. The issues are (1) whether the trial court abused its discretion in its distribution of assets and liabilities, (2) whether the trial court abused its discretion when it awarded the wife lump sum alimony and permanent periodic alimony, and (3) whether the trial court erred in its award of attorneys’ fees and costs. We conclude that the trial court abused its discretion regarding the first two issues.

It is well established under Florida law, that “in distributing the marital assets and liabilities, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, ... including those factors set forth in section 61.075(l)(a) through (j), Florida Statutes (2001).” Christ v. Christ, 854 So.2d 244, 247 (Fla. 1st DCA 2003); Parham v. Parham, 968 So.2d 716, 717 (Fla. 2d DCA 2007).

In awarding the wife permanent periodic alimony, we hold that the trial court erred because it failed to consider the wife’s finances in light of its concurrent award to her of $1.25 million as lump sum alimony. The trial court also erred in that it failed to provide a legally sufficient factual basis to support its determination that the husband’s income as a surgeon will continue to be commensurate with that of his prior earnings, now that he is over seventy years of age.

The forensic accountant provided evidence at trial that several mortgages were paid off or reduced during the marriage using marital funds. The First District Court of Appeal has stated that “if the increased value [in an asset] was the result of either the work efforts of one or both spouses or the expenditure of marital funds or earnings of the parties” such a portion of the increase in value is a marital asset. Graff v. Graff, 569 So.2d 811, 812 (Fla. 1st DCA 1990). See also Stevens v. Stevens, 651 So.2d 1306, 1307 (Fla. 1st DCA 1995); Young v. Young, 606 So.2d 1267, 1270 (Fla. 1st DCA 1992); Massis v. Massis, 551 So.2d 587, 589 (Fla. 1st DCA 1989).

The trial court considered the forensic accountant figures in calculating an equitable distribution award of $173,469 to the wife. However, the trial court also considered those same figures in its rationale to award the wife $1.25 million as a lump sum alimony award, based on the marital contributions she made to the non marital asset, as well as the appreciation of those contributions. At issue are the pay-downs on the three mortgages on the residence. Consequently, the equitable distribution award of $173,469 partially “allow[s] the wife to essentially double dip” from her contributions to this asset and is error. Sell v. Sell, 928 So.2d 359, 360 (Fla. 3d DCA 2005). Therefore, the $173,469 equitable distribution award must be recalculated by eliminating the mortgage pay-downs from the calculation. We leave the temporary alimony award in place, pending the wife’s receipt of the $1,250,000 lump sum alimony award and the equitable distribution award. The temporary alimony award may be adjusted in amount or duration within the discretion of the trial court.

As to the trial court’s award of attorney’s fees and costs to the wife, there was testimony that the husband owns substantial income-producing non marital assets. The statute addressing attorney’s fees, suit money, and costs contemplates the trial court’s consideration of “the financial resources of both parties,” including the parties’ relative financial need or ability to pay. See § 61.16(1), Fla. Stat. (2009); Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997). Therefore, we find no abuse of discretion in the trial court’s award of attorney’s fees, costs, and suit monies to the wife.

Thus, we reverse the amended final judgment with respect to the issues previously discussed and remand for a redistribution of the marital assets and liabilities.

B. Marital Home Valuation

The trial court did not abuse its discretion in its decision to accept the wife’s testimony over than that of the husband’s in regards to the marital home’s value. Although the home was titled to the husband, the wife had lived at that home for most of the fourteen-year duration of the marriage, had made significant contributions to the property during the marriage and was consequently in a position to attest as to its value. Further, in regards to the home’s valuation, although the trial court did not exceed its discretion in its determination that the wife’s testimony was more credible, we observe that by failing to object to his wife’s valuations at trial, this issue has not been preserved for appeal. Castor v. State, 365 So.2d 701, 703 (Fla.1978).

C. Children’s Social Security Benefits

Based on the testimony of the neutral forensic expert, the trial court incorrectly imputed the minor children’s Social Security benefits as income to the wife. The trial court’s determination to assign the children’s Social Security benefits directly to the wife is pragmatic, but it does not follow that the dependent benefits attributable to the husband’s Social Security benefits should then be imputed into the wife’s income. “[S]ection 61.30(ll)(b) refers specifically to a final adjustment in the child support award because of the income of the child. This statute plays no part in determining what income is attributable to the parent obligor in the calculation of the guideline amount.” Sealander v. Sealander, 789 So.2d 401, 403 (Fla. 4th DCA 2001).

Although payment of the children’s Social Security benefits was assigned to the wife, these benefits should have been calculated as part of the husband’s income for the determination of child support and further used to offset the husband’s child support obligation. “[Wjhen a parent is receiving social security ... and, as a result, his or her children receive dependent benefits, the total benefits received by or on behalf of that parent are attributed to the ... parent as income in the child support guideline calculation. The dependent benefits are then credited toward the ... parent’s obligation, that is, they are a payment of the obligation on behalf of the ... parent.” Id. Attributing these benefits as “income” to the custodial parent is only proper when the funds are provided to a child who is disabled and as such “may receive supplemental security income in his or her own right.” Id.

In this case the husband receives social security retirement benefits. According to the amended final judgment, the social security administration pays a total of $1515 in dependent benefits for the two children. Under Sealcmder, the $1515 dependent benefits should be included as part of the husband’s income for purposes of calculating the child support obligation. Id. at 403; see also Wallace v. Dept, of Revenue, 774 So.2d 804, 808 (Fla. 2d DCA 2000); Williams v. Williams, 560 So.2d 308, 310 (Fla. 1st DCA 1990); However, since the dependent benefits will be sent directly to the wife (as primary residential parent) for use on behalf of the children, the $1515 monthly dependent benefit is deemed to be paid on the husband’s behalf. The husband is then responsible for paying the remainder of the monthly support obligation.

On remand the child support obligation will need to be recalculated so as to include the monthly dependent benefit in the husband’s income and take into account our elimination of permanent alimony.

III. Conclusion

We hold that the trial court exceeded its discretion in its equitable distribution award. The trial court, however, did not abuse its discretion in accepting the wife’s testimony as to the marital home’s valuation.

For the foregoing reasons, we reverse the equitable distribution award, including the award of permanent periodic alimony, and we reverse the child support award, and remand to the trial court for further proceedings consistent with this opinion with regard to these issues. We affirm the amended final judgment of dissolution of marriage in all other respects.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

      . The home was flooded by Hurricane Andrew in August 1992. In December 1992, the parties were married. According to the testimony, the home was rebuilt using insurance proceeds and a $50,000 loan. The testimony was that both parties devoted personal time and attention to the rebuilding, which took four years, and marital funds were used to pay for the maintenance, upkeep, and taxes on the property. By statute, a marital asset includes "the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 6t.075(5)(a)2„ Fla. Stat. (2007).

      . There is a discrepancy regarding this figure. The testimony was that each child received $715 per month, for the total of $1430. The accountant's calculation and the judgment, however, put the figure at $1515. The discrepancy should be resolved on remand.

      . For example, if the husband’s monthly child support obligation were calculated at $1800 per month and the wife is receiving the dependent benefit of $1515 per month, it follows that the husband must make a child support payment to the wife of the shortage, namely, $285 per month.


author: SHEPHERD, J.

text:
    Ricardo ORTEGA, Appellant, v. ENGINEERING SYSTEMS TECHNOLOGY, INC., Appellee.
    No. 3D08-1607.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Rehearing and Rehearing En Banc Denied April 16, 2010.

      Bill McCabe, Longwood; Pelayo M. Duran, for appellant.
    Carmen Rodriguez, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Ricardo Ortega appeals a summary final judgment rendered against him in an action where he claims Engineering Systems Technology, Inc., unlawfully discharged him in retaliation for making a valid workers’ compensation claim. See § 440.205, Fla. Stat. (2007). Engineering Systems defends the summary final judgment on the ground that the failure of the employer’s workers’ compensation carrier to unequivocally advise it that Ortega was released to work constitutes a complete bar to Ortega’s claim. We disagree and therefore reverse and remand this case for further proceedings. A brief summary of the facts of this case, set forth in the light most favorable to the non-movant, as the law requires at this stage of the proceeding, is necessary to explain our decision.

FACTS

Engineering Systems is engaged in the business of installing fire protection devices, such as fire alarms and sprinklers. A typical installation crew consists of an “installer” and a “helper.” Engineering Systems employed Ortega as a “helper.” On October 31, 2006, Ortega fell off a ladder during the course of a job site installation and fractured his right wrist. Enrique Borja, Ortega’s boss and the owner of Engineering Systems, provided immediate notification of the accident to his workers’ compensation insurance carrier, Associated Industries Technology Insurance Company, which assumed responsibility for managing Ortega’s care and benefits.

Dr. Donald Caress first saw Ortega for his injury on November 2, 2006. Caress noted his activity status as “No use of right arm,” “Must wear splint,” and recommended Ortega see a hand surgeon as soon as possible. On November 7, Dr. Franklin A. Reyes, a hand specialist, examined Ortega, confirmed his right wrist fracture, and recommended surgery. Ortega had surgery on November 8. He visited Dr. Reyes again on November 9, November 14, December 5, and December 21. The record reflects most of these visits were for therapy. Through this entire time period, Ortega was on a “no work” status.

On February 1, 2007, Dr. Reyes examined Ortega and, for the first time, authorized Ortega to engage in the “limited use of [his] injured hand” with a twenty pound weight restriction. On the same day, Ortega called Borja, hoping to return to work. Borja advised Ortega he did not have any light-duty jobs available for him and stated “he should go back to his workman’s compensation and make sure they ... do what they have to do ... to make sure he can work [without any limitations].” Referring specifically to whether he would take Ortega back when he was sufficiently recovered, Borja stated, “I don’t have a problem ... [a]nybody can work.” On February 9, 2007, Carol Cooper, the Associated Industry’s adjustor assigned to Ortega’s case, completed the Division of Workers’ Compensation Form DWC-4, indicating February 1, 2007 as Ortega’s “RELEASED TO RETURN TO WORK DATE,” with restrictions. A copy of the DWC-4 form was furnished to Engineering Systems and filed with the Florida Department of Workers’ Compensation, as required by law under Florida Administrative Rule 69L-3.0091. Through a conversation with Tonya Borja, Enrique Borja’s office manager and wife, Cooper also confirmed the company did not have any work available for an individual with Ortega’s limitation.

After further treatment and therapy under the care and supervision of Dr. Reyes, Dr. Reyes, on April 12, 2007, issued a report to Associated Industries, stating Ortega reached maximum medical improvement and “he can return to work with no limitations.” A copy of this report was supplied to Ortega, who in turn faxed it to Engineering Systems. Twelve days later, on April 24, 2007, Dr. Reyes furnished Associated Industries with the Division of Workers’ Compensation Form DWC-25, indicating Dr. Reyes assigned Ortega a permanency rating of five percent of the body as a whole, and confirming again Ortega was released from all work limitations. Upon receipt of this form, Cooper prepared a second DWC-4 form on April 24, 2007, reciting Ortega had reached maximum medical improvement as of April 12, 2007, but left blank, both the “RELEASED TO RETURN TO WORK DATE” field, and the work restrictions field. As Cooper explained in her deposition, it was not her carrier’s practice to fill-in these fields when an employee was released to full duty because the worker must advise the employer if he wishes to return to work. Borja was furnished a copy of the Division of Workers’ Compensation Form DWC-4, but not the Division of Workers’ Compensation Form DWC-25.

Four days after Dr. Reyes informed Ortega he could return to work with no limitations, Ortega had a conversation with Borja, during which Ortega testified he told Borja he was ready to return to work and had been cleared of all limitations. According to Ortega, Borja replied, “I don’t have work for you ... I removed you from my staff two months ago.” Although Ortega’s telephone records reflect three calls to the Engineering Systems office— one six minutes in length — on the date Ortega stated he had this conversation with Borja, Borja denied having this or any other conversation with Ortega during the year 2007. Rather, Borja testified Ortega never contacted him or told him he had been fully cleared to return to work or wanted to work. Moreover, he testified he was without obligation to put Ortega back to work until he received a properly completed Division of Workers’ Compensation Form DWC-4, stating he was cleared to work without limitations. Borja denied ever receiving the second of the two DWC-4 forms furnished to him by Cooper, and could not recall receiving the report issued by Dr. Reyes on April 12, 2007. Both forms were found in his files.

ANALYSIS

In order to prevail on a retaliatory discharge claim under section 440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004). The parties do not dispute Ortega engaged in statutorily protected activity by filing a workers’ compensation claim, but this is where any agreement ends.

As to the second element, Ortega contends there is a genuine issue of material fact as to whether he suffered an adverse employment action. Engineering Systems argues nobody told Ortega he was fired or that he could not return to work. To the contrary, Ortega testified he spoke with Borja on April 16, 2007, four days after he was released to work without restrictions. Phone records support Ortega’s assertion. Ortega testified that during the conversation, Ortega told Borja he was released and ready to return to work, but Borja replied he “did not have work for Ortega” and had “removed him from the staff’ two months earlier, in February. Of course, this statement is contradicted by the statement, also made in February 2007, that Borja “[did not] have any problem taking Ortega back to work when he was fully recovered.” Furthermore, Ortega presented evidence contradicting Engineering Systems’ claim it did not have any available work. Engineering Systems contends Ortega was not terminated and, in fact, never told he was “fired.” While Ortega may not have been fired “en haec verba,” there is sufficient evidence in the record from which a jury could conclude the second prong has been satisfied.

As to the third element, a plaintiff must prove causation by showing the protected activity and the adverse action are not completely unrelated. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). In our case, there is evidence to support a jury finding of a temporal relation between the protected activity and the adverse employment action. See Id. (“A ‘close temporal proximity' between the protected expression and an adverse action is sufficient circumstantial evidence of a causal connection for purposes of a prima facie case.”). The protected activity — the pursuit of workers’ compensation benefits — began in November 2007. Evidence in the record indicates Ortega was removed from Engineering Systems’ work staff sometime in February 2007, after having been told on the first day of that month Engineering Systems would take him back when he was free from all work limitations. At the same time, Borja testified he has not terminated any employees through the date of his deposition. On these facts, we cannot conclude there is a complete absence of any genuine issue of material fact concerning, not only whether Engineering Systems engaged in an adverse employment action, but also whether there was a causal relationship between such action and Ortega’s pursuit of his workers’ compensation care and benefits.

Once a plaintiff establishes a prima facie case by proving the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the employer to proffer a legitimate reason for the adverse employment action. See Russell, 887 So.2d at 379-80. In this case, Engineering Systems proffers, as its legitimate reason for its action, that Ortega never came forward asking to be returned to duty and, in any event, Ortega was not formally released to duty by the employer’s workers’ compensation carrier.

A plaintiff withstands summary adjudication at this stage either by producing sufficient evidence to permit a reasonable finder of fact to conclude the employer’s proffered reasons were not what actually motivated its conduct, or that the proffered reasons are not worthy of belief. Corbitt v. Home Depot U.S.A., 589 F.3d 1136, 1162-63 (11th Cir. 2009). A trial court should “evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoheren-cies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Id. (internal citations omitted). In our case, there is a clear conflict in the record concerning whether Ortega ever approached his employer after he achieved full recovery and asked to return to work. Moreover, we find no authority, and the employer has provided us with none, to support the employer’s fail-safe defense that the failure of a workers’ compensation carrier to provide an employer with a Division of Workers’ Compensation Form DWC-4, unequivocally advising the employer that Ortega was released to work, provides a complete defense to a retaliation claim under section 440.205 of the Florida Statutes.

We underscore that in reaching our decision on review of an order granting summary judgment, we are required to review the record de novo and construe all facts in a fashion most favorable to the non-mov-ant. See Interested Underwriters v. SeaFreight Line, Ltd., 971 So.2d 892, 894 (Fla. 3d DCA 2008). Ultimately, the plaintiff bears the burden of proof that a violation of the statute occurred and that such violation was a substantial factor in the employer’s decision in this case. See Russell, 887 So.2d at 379-80.

Reversed and remanded for further proceedings.

      . The statute reads: "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.”

      . This practice is contrary to Florida Administrative Rule 69L-3.0091 (2007).


author: SUAREZ, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as trustee, on behalf of the holders of the Home Equity Asset Equity Pass-Through Certificates, Series 2005-2, Appellant, v. David TAYLOR, a/k/a David M. Taylor, et al., Appellees.
    No. 3D09-694.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Lapin & Leichtling and Jonathan R. Ro-senn and Jeffrey S. Lapin, for appellant.
    John L. Penson, Bay Harbor Islands, for appellees.
    Before RAMIREZ, C.J., GERSTEN and SUAREZ, JJ.
   SUAREZ, J.

U.S. Bank National Association (“U.S. Bank”) appeals a non-final order granting a post-judgment motion to intervene. After final judgment of foreclosure and sale of property to U.S. Bank, the owner of the first mortgage and note, the trial court granted Northview Equities, LLC’s (“Northview”) motion to intervene and ordered the clerk of the court to issue title to Northview. We reverse the grant of Northview’s motion to intervene and the direction to the clerk to issue the certifí-cate of title to Northview, as Northview was assigned a second mortgage and not the first mortgage, which was owned by U.S. Bank.

FACTS

This case arises out of a residential foreclosure of a first mortgage brought by U.S. Bank, the owner of the note and first mortgage. The first mortgage referenced a note in the amount of $518,000.00 and an identification number ending in 6895. U.S. Bank’s loan servicer executed a second mortgage, which stated that it was “subordinate to an existing first lien of record” and was referenced by an identification number ending in 6903. U.S. Bank obtained a final judgment of foreclosure against the borrower, David Taylor, based upon the note and first mortgage. The second mortgage was assigned to Asset Management Holdings, Inc. (“Asset”), and referenced the identification number ending in 6903. Asset then assigned the same mortgage to Northview. Northview claimed title to the property based on the fact that, when U.S. Bank’s loan servicer assigned the second mortgage to Asset, although the assignment itself referenced the correct identification number of the second mortgage, 6903, and the second mortgage stated that it was “subordinate to an existing first lien of record,” the assignment was erroneously filled out by incorrectly substituting the Monroe County official records book and page number of the first mortgage instead of the correct second mortgage book and page number. Asset’s execution of the assignment, referencing the incorrect book and page number of the first mortgage, to Northview is the basis of Northview’s claim.

TRIAL COURT PROCEDURE

After the property was foreclosed upon, the owner of the first mortgage, U.S. Bank, bought the property at the foreclosure sale. Almost eight months after final judgment of foreclosure had been entered in favor of U.S. Bank and after the purchase by U.S. Bank at the foreclosure sale, but prior to the issuance of the certificate of title, Northview moved to intervene. Northview’s theory was that the assignment it received from Asset was an assignment of the first mortgage because the document showed the Monroe County official records book and page number of the first mortgage giving it priority in title over U.S. Bank. The trial court allowed Northview to intervene and the trial court directed the clerk of the court to issue the certificate of title to Northview. U.S. Bank filed this interlocutory appeal. We find that the trial court abused its discretion in granting the motion to intervene and directing the clerk of the court to issue the certificate of title to Northview.

ANALYSIS

The trial court’s order granting North-view’s motion to intervene is reviewed for an abuse of discretion. Barnhill v. Fla. Microsoft Anti-Trust Lit., 905 So.2d 195 (Fla. 3d DCA 2005). The portion of the trial court’s order which directs the clerk to issue the certificate of title to Northview is reviewed de novo since it involves questions of law and the construction of written instruments. Aronson v. Aronson, 930 So.2d 766 (Fla. 3d DCA 2006).

The general law is that an as-signee of a mortgage receives only those rights and benefits which are available to its assignor. Dubbin v. Capital Nat’l Bank, 264 So.2d 1 (Fla.1972). Under the facts before us, the assignee, Northview, received only the rights it would have had under the assignment of mortgage it received from Asset. Asset only possessed the rights of a second mortgage holder, as referenced by the amount of $148,000.00 “subordinate to an existing first lien of record” and identification number 6903. The facts that the second mortgage, held by Asset and assigned to Northview, had a different identification number than the first mortgage, and the second mortgage referenced $148,000, “subordinate to an existing first lien of record,” serve to corroborate the conclusion that Northview received a second mortgage and not a first mortgage despite the erroneous book and page numbers. Had Northview executed a diligent search of the public records, barring the fact that the book and page numbers on the two mortgages were reversed, it would have become aware that there was a second mortgage on the property which was subordinate to the first. See Graham v. Commonwealth Life Ins. Co., 114 Fla. 585, 154 So. 335 (1934) (holding that where a purchase money mortgage stated it was second mortgage, but incorrectly designated the first mortgagee, and the assignee had actual and constructive notice of a subordination agreement, the mortgagee of the building construction loan was entitled to priority over the as-signee of the purchase money mortgage); see also Crenshaw v. Holzberg, 503 So.2d 1275, 1277 (Fla. 2d DCA 1987) (“[A]n instrument of record is notice not only of its own existence and contents, but also of other facts that would have been learned from the record if it had been examined and that inquiry suggested by it would have disclosed.”). Northview’s argument that it was a bona fide purchaser fails because “[a]n assignee is not protected as against the equities of third persons if the assignment was ... after the maturity of the debt secured.” Hulet v. Denison, 146 Fla. 478, 482, 1 So.2d 467 (1941); see Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA 1965) (holding that purported assign-ee of mortgage without assignment of note creates no right in plaintiffs and recording gives no priority as against subsequent sale and delivery of note).

The trial court abused its discretion in granting Northview’s motion to intervene. A post judgment motion to intervene is rarely, if ever, granted and only if the intervention will not injuriously affect the original litigants. In this case, the trial court abused its discretion since the granting of the post judgment motion to intervene did injuriously affect the original parties. See Dickinson v. Segal, 219 So.2d 435 (Fla.1969) (post-judgment intervention not permitted once litigation has resulted in final judgment); see also Svadbik v. Svadbik, 776 So.2d 968 (Fla. 3d DCA 2000) (affirming denial of motion to intervene post-judgment); Idacon, Inc. v. Hawes, 432 So.2d 759 (Fla. 1st DCA 1983) (reversing order granting motion to intervene after final judgment of foreclosure had been entered and after judicial sale); Lewis v. Turlington, 499 So.2d 905 (Fla. 1st DCA 1986) (trial court abused its discretion in allowing third parties to intervene after entry of final order).

We reverse the trial court’s grant of Northview’s motion to intervene and the direction to the clerk to issue title in Northview’s name. We remand to the trial court to issue title in the name of U.S. Bank.

Reversed and remanded with directions.

      . The note was never delivered.