Title procedure before general magistrates and child support enforcement hearing officers.

• Author: Prugh, R. Mitchell
• Position: Florida

Over the past decade, Florida increasingly has relied on state-paid general magistrates and child support enforcement hearing officers. Although neither general magistrates nor hearing officers appear in Article V of the Florida Constitution or the Florida Statutes, together they form a rapidly growing specialized court for family law. Florida funds family general magistrates and hearing officers to provide faster court access for family disputes, relieve demands on judges' case loads, and save judiciary expenses. (1) This article discusses correct referral and notice, recorded hearings, and the filing of exceptions or a motion to vacate order.

Florida's state-funded general magistrates and hearing officers are structured differently than Article V judges. Unlike Article V judges, they lack a set tenure in office and protection of salary, and instead are state court system at-will employees. General magistrates hear cases only by the implicit or express consent of the parties and are, therefore, conceivably subject to pressure to issue popular rulings. Both general magistrates and hearing officers are selected outside the election or merit retention process for judges and file no financial disclosure, (2) although they may individually issue case dispositive rulings in thousands of court cases each year that receive deferential review by the Article V courts.

General magistrates, formerly called general masters, have a long history in chancery. (3) General magistrates serve by appointment of the judges within a circuit and remain in office until "removed by the court." (4) A general magistrate may be disqualified from hearing a case on the same bases as a judge. (5) General magistrates may hear most family law matters which do not require an order that takes immediate effect. (6)

A party must file an objection to the referral within 10 days after service of the referral or be deemed to have implicitly consented to the referral. (7) Objections can be filed before the time a responsive pleading is due if the referral was made within 20 days of when action filed. (8) Failure to timely object may be overcome by good cause shown before hearing commences. (9) One court decision has held a party may object before the referral is made. (10) A party waives the right to object to a referral actually made if the party participates in the hearing, but the party does not waive objection if there is a total lack of any referral order. (11) One consequence of the referral system is that the parties may exercise limited "judge shopping" by consenting or objecting to a referral. (12)

The notice of referral must state with specificity what is being referred to the general magistrate and must contain certain mandatory language. (13) An entire case is generally not referred to a general magistrate unless the parties consent. (14) After referral, additional matters may not be referred without agreement of parties, (15) and the general magistrate is without jurisdiction to hear additional matters not referred. (16) An appeal from a referral lacking consent may be heard by writ of mandamus, writ of prohibition, or direct appeal from the order on the report. (17)

Hearing officers are the court created response to federal legislation requiring expedited child support procedures in order to receive federal funds. (18) By court rule, hearing officers are appointed by the chief judge within a circuit and serve at the pleasure of the chief judge and a majority of the circuit judges in the circuit. (19) There is no procedure to object to a case being referred to a hearing officer. (20) Hearing officers are limited to hearing cases establishing, modifying, or enforcing child support or a support order in conjunction with child support. (21) Hearing officers may hear attorneys' fee issues if there is no objection, (22) but, they lack jurisdiction to hear other family law matters. (23)

The general magistrate or a party may set the action for hearing (24) and notice the hearing. (25) Any party may apply for a court order to require the general magistrate to speed the proceedings or certify a reason for delay. (26) The family rules contain preferred language for the notice of hearing, including whether electronic recording is provided by the court. (27) The failure to provide notice of the hearing requires reversal even if a party later participates by timely filing exceptions after the hearing. (28) Hearing officers are responsible under court rule for setting hearings in child support actions. (29)

The second essential practice point is that general magistrates and hearing officers are required to record all hearings. (30) Therefore, attorneys representing modestly-funded clients may rely on the recording to preserve an appeals record without paying a court reporter appearance fee. The recording must be transcribed only when filing exceptions to a general magistrate's report or when moving to vacate a hearing officer's recommended order. (31) The lack of audible recording will result in a new hearing. (32)

The general magistrate may proceed ex parte if one or more of the parties fails to appear at a noticed hearing. (33) The rules of evidence apply to hearings before the general magistrate. (34) A party must contemporaneously object to preserve the objection. (35) Contemporaneous objection must be made to a child support hearing officer's jurisdiction to hear attorneys' fee issues. (36) As one or more parties appear pro se in most cases, court rules provide that the general magistrate may examine the witnesses under oath. (37) No comparable rule prescribes the hearing officer's powers to directly interrogate witnesses.

The general magistrate must submit a report and recommendation to the circuit judge containing findings of fact, conclusions of law, and recommendations. (38) The report and recommendation in a juvenile case must contain specific...