Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 6, 2022. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D21-2179 Lower Tribunal No. 12-17787 ________________ Frank E. Polo, Appellant/Petitioner, vs. Merlin Hernandez, Appellee/Respondent. An Appeal from non-final orders from the Circuit Court for Miami-Dade County, Marcia Del Rey, Judge. Frank E. Polo, in proper person. Merlin Hernandez, in proper person. Before LOGUE, HENDON and BOKOR, JJ. HENDON, J. Frank E. Polo (“Father”) appeals from a non-final order denying his motion to vacate, and petitions for writs of mandamus, prohibition, certiorari, and motions to enforce mandate. We reverse the order denying the Father’s motion to vacate the order ratifying the magistrate’s report, and remand for a hearing on the Father’s exceptions to the magistrate’s report. The remaining issues presented are either untimely, cannot be considered on appeal, or are without merit. Facts Since the Mother and Father parted ways in 2012, the parties have continued to engage in litigation over various aspects of the parties’ 2013 mediated settlement agreement, attorney’s fees, and child support, among other things. 1 1 In July 2015, the trial court rendered an amended final judgment of paternity and holding that the 2013 mediated settlement agreement was to remain in full force and effect, which was affirmed on appeal. Polo v. Hernandez, 224 So. 3d 229 (Fla. 3d DCA 2017). In October 2017, because of the Father’s excessive and frivolous post-judgment filings and history of vexatious conduct, the trial court precluded him from filing any additional pro se pleadings, motions, or letters without the assistance of a member of the Florida Bar. His petition for certiorari seeking to quash the preclusion order and other relief was dismissed. Polo v. Hernandez, 245 So. 3d 730 (Fla. 3d DCA 2017). The Father’s subsequent petitions for writ of certiorari, mandamus, and prohibition were denied. Polo v. Hernandez, 251 So. 3d 140 (Fla. 3d DCA 2018); Polo v. Hernandez, 251 So. 3d 139 (Fla. 3d DCA 2018). 2 In June 2019, a general magistrate was ordered to resolve two separate motions: 1) the Mother’s motion for attorney’s fees and costs to be paid by the Father, and 2) the Mother’s attorney’s motion for attorney’s fees and costs to be paid by the Father. The magistrate’s report was issued July 19, 2019, and was served on the Father’s attorney by mail on July 22, 2019. The Father’s attorney timely filed his exceptions to the report on July 29, 2019. 2 On September 12, 2019, without any intervening hearing on the Father’s filed exceptions to the report, the trial court entered its order stating that “no exceptions to the report” had been filed within the ten day period provided by Florida Family Law Rule 12.490, and ratified and approved the magistrate’s report. On September 25, 2019, the Father’s attorney filed a motion to vacate the order adopting the report, citing the court’s mistake that “no exceptions” had been filed. Ten months later, 3 in June 2020, the parties participated in a videoconference hearing on the Father’s 2019 motion to vacate the order 2 Florida Family Law Rule 12.490 (f) provides, in relevant part, “[t]he parties may file exceptions to the report within 10 days from the time it is served on them.” 3 There is nothing in the record on appeal between the Father’s September 25, 2019 motion to vacate and the September 24, 2020 hearing on his motion to vacate, or between the September 24, 2020 hearing and the April 15, 2021 hearing. The lower court docket reflects miscellaneous filings but no relevant hearings or orders related to the issue on appeal. 3 ratifying and adopting the magistrate’s report. The transcript of the June 2020 hearing on the Father’s motion to vacate shows both parties agreed that the Father’s exceptions were timely filed. The Mother’s attorney argued, however, that although the Father’s attorney had timely filed his exceptions to the magistrate’s report, he never requested a hearing pursuant to Florida Family Law Rule 12.490(f).4 At a hearing conducted on April 15, 2021, the Father’s attorney moved to withdraw and the court granted the motion over the Father’s objection. The court gave the Father thirty days to retain new counsel and for the parties to make further submissions to the court. The trial court later issued its October 6, 2021, order denying the Father’s 2019 motion to vacate the order that approved the magistrate’s report. Although the trial court states in its order that it allowed the parties to make their legal arguments at the April 2021 hearing, it does not indicate that the Father’s exceptions to the magistrate’s report were actually heard. On appeal, the Father asserts that the trial court erred by denying his motion to vacate the order ratifying the magistrate’s report. We agree. 4 Florida Family Law Rule 12.490(f) provides, in relevant part, “[i]f exceptions are filed, they must be heard on reasonable notice by either party or the court.” 4 The law clearly provides that a hearing on a party’s exceptions to a magistrate’s report is mandatory. In Simmons v. Simmons, 16 So. 3d 878, 878–79 (Fla. 5th DCA 2009), the Court explained, In this appeal of a final judgment rendered in a dissolution of marriage proceeding wherein the trial court adopted all of the recommendations and findings of the magistrate, we reverse because the trial court failed to hold a hearing on Husband's timely filed exceptions to the magistrate's report before entering the final judgment. See Fla. Fam. L.R.P. 12.490(f) (providing that if exceptions are filed to a general magistrate's report, they “shall be heard on reasonable notice by either party or the court”); Yoxsimer v. Yoxsimer, 918 So. 2d 997 (Fla. 2d DCA 2006) (holding that rule 12.490(f) requires a mandatory hearing on timely filed exceptions to a magistrate's report and explaining that this rule derives from Florida Rule of Civil Procedure 1.490(h), which also requires a mandatory hearing on timely filed exceptions to a magistrate's report); Knorr v. Knorr, 751 So. 2d 64, 65-66 (Fla. 2d DCA 1999) (observing that Florida Family Law Rules of Procedure 12.490(f) and 12.492(g) derive from Florida Rule of Civil Procedure 1.490(h) and that all three contain substantially the same provisions requiring a mandatory hearing on exceptions to a master's report and recommendation); McBride v. McBride, 637 So. 2d 938, 940 (Fla. 2d DCA 1994) (“First, the trial judge erred when he denied Wife's timely objections to the master's amended report without an evidentiary hearing.”); see also L.P. v. State, 995 So. 2d 1140, 1141 (Fla. 5th DCA 2008) (“[W]e write to re-emphasis [sic] the requirement that a hearing must be held on timely-filed exceptions to a magistrate's report”); Burnstine v. Townley, 976 So. 2d 624, 627 (Fla. 5th DCA 2008) (“[T]he trial court erred when it denied his exceptions without first conducting a hearing.”) (citing Yoxsimer); Collado v. Pavlow, 951 So. 2d 69, 70 (Fla. 5th DCA 2007) (same). 5 (Emphasis added). The Simmons Court reversed the final judgment and remanded to the trial court to conduct an appropriate hearing on the Husband’s timely filed exceptions to the magistrate's report. Id. Again, in Ellett v. Ellett, 546 So. 2d 1108, 1109 (Fla. 2d DCA 1989), the Court emphasized the mandatory nature of the hearing on exceptions, stating, Florida Rule of Civil Procedure 1.490(h) provides that “[i]f exceptions [to the master's report] are filed, they shall be heard on reasonable notice by either party.” (Emphasis supplied.) Appellate courts throughout this state have uniformly interpreted rule 1.490(h) to require a mandatory hearing before the trial court on the parties' exceptions if one is requested. See Fonte v. Alvarez, 491 So. 2d 1268 (Fla. 2d DCA 1986); Berkheimer v. Berkheimer, 466 So. 2d 1219 (Fla. 4th DCA 1985); Monyek v. Monyek, 453 So. 2d 504 (Fla. 3rd DCA 1984); Wyman v. Wyman, 430 So .2d 610 (Fla. 4th DCA 1983); Kay v. Kay, 430 So. 2d 532 (Fla. 4th DCA 1983). The hearing requirement in the general and special master context is mandatory “[i]n order to protect a party's right to be ultimately heard by the judge in the case....” Kay at 533. “The rule was designed to safeguard the due process rights of the parties....” Berkheimer at 1220. Due process concerns distinguish the mandatory hearing requirement in rule 1.490(h) from the permissive rule allowing appellate oral argument at the discretion of the appellate court. See Fla. R. App. P. 9.320. In the case before us, the Father’s attorney timely filed his exceptions to the magistrate’s report. No hearing on those exceptions was scheduled prior to the trial court adopting the magistrate’s report, and neither the record 6 on appeal nor the lower court docket reflect that a hearing on the Father’s exceptions took place. This was error. The trial court erred not only by mistakenly stating that there were no exceptions filed, but also in failing to require a hearing on the matter prior to ratifying the magistrate’s report, and by denying the Father’s motion to vacate the flawed order. Although the relevant pleadings are now over two years old, the Father is entitled to a hearing on his exceptions to the magistrate’s report. Due process considerations lead to this result. 5 We decline to address the Father’s remaining arguments, variously styled as petitions for writ of certiorari, mandamus, and prohibition, as he raises issues that are either untimely, cannot be addressed by this Court, or are entirely without merit. 5 In the order on appeal, the trial court noted that, [A] Case Management Conference was held on June 24, 2020 in which the Court allowed the parties to make legal argument and subsequently submit case law and proposed orders for the Court to review and consider the parties’ respective legal positions prior to entering a ruling on the Father’s Motion to Vacate [the order adopting the magistrate’s report].” (Emphasis added). Despite the wording in the order noting the court gave both parties opportunity to make their arguments, the order does not address the Father’s exceptions, and a case management conference cannot substitute for a full and timely hearing on the merits of the Father’s exceptions to the magistrate’s report prior to ratification. 7 We therefore reverse the October 6, 2021, order denying the Father’s motion to vacate the September 12, 2019, order ratifying the magistrate’s 2019 report, instruct the trial court to vacate the September 12, 2019, order ratifying the magistrate’s report, and, within a reasonable timeframe, hold an appropriate hearing on the merits of the Father’s exceptions. We deny the remaining petitions. Reversed and remanded with directions; petitions denied. 8