EFTA01187981

Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 based decision solely on financial resources of 714 So.2d 1027 parties without considering equitable factors, District Court of Appeal of Florida, including whether modification could be sought Fourth District. in Florida and if so to what extent orders were modifiable under New York law. U.S.C.A. Thomas John WOODWARD, a/k/a Tom Jones, Const. Art. 4, § I; 28 U.S.C.A. § 1738B; West's Appellant, F.S.A. § 61.16(1). v. Katherine BERKERY, Appellee. Thomas John WOODWARD, a/k/a Tom Jones, Petitioner, v. The MIAMI HERALD PUBLISHING CO., and Katherine Berkery, Respondents. Divorce 4F,Authority and discretion of court Nos. 97- 0398, 96-2483. I Feb. 4, 1998. Trial court has broad discretion in setting interim awards of attorney's fees and suit money Mother sought modification of New York judgments in family law cases, but that discretion does not fixing amount of child support. The Circuit Court, exist in the abstract, and is instead a Broward County, Robert A. Rosenberg and Charles M. discrimination informed by legal principles. Greene, D., ordered father to pay interim attorney's fees West's F.S.A. § 61.16(1). and to comply with mother's broad financial discovery requests. Father appealed and petitioned for writ of certiorari. The District Court of Appeal, Farmer, J., held that: (1) trial court should not have based interim fee award solely on financial resources of parties without considering whether matter was legally sustainable in Florida, and (2) father was entitled to have discovery 111 Child Support orders quashed. faAttorney fees Interim award of attorney's fees reversed, discovery In post-settlement, post-judgment case seeking orders quashed, and case remanded. modification of child support, factors such as scope and history of litigation, duration of litigation, merits of respective positions, whether litigation is primarily intended to harass, and existence and course of prior or pending West Fleadnotes (II) litigation, assume even greater importance in decision to award interim attorney fees. West's F.S.A. § 61.16(1). III Children Out-Of-Wedlock j -Costs Before entering order requiring father to pay $137,289 in interim court-awarded attorney's fees, expenses, and suit money in addition to $20,000 already paid voluntarily in action 19 Divorce brought by mother to modify support judgment -' Nature of proceeding as factor in general entered by New York court based on agreements of mother and father, trial court should not have In domestic relations cases seeking to modify or WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01187981 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Battery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 set aside settlement, one factor trial court should Irl Children Out—Of—Wedlock consider in deciding whether to award interim -4Preliminary proceedings attorney fees is need to impose some "economic Divorce rationality" on party initiating the post-judgment -4Discovery litigation. West's F.S.A. § 61.16(1). Automatic discovery established by mandatory I Cases that cite this headnote disclosure rule is subject to being limited or curtailed by trial court if there is some reason for doing so. West's F.S.A. Family Law Rules of Proc., Rule 12.285. PI Children Out-Of-Wedlock P-Costs Divorce ..Temporary and pendente lite awards Trial court's discretion in setting interim Isl Certiorari attorney's fees in family law matters is -4Particular proceedings in civil actions discretion related to determination of legally sustainable controversy, properly raised in a Irreparable harm in discovery order is Florida court, and is not generalized discretion indispensable to enable court to review it by allowing trial court judge in every case to award common-law certiorari. amount that might generally be incurred in litigating fully contested divorce or paternity 2 Cases that cite this headnote case. West's F.S.A. § 61.16(1). 2 Cases that cite this headnote Certiorari -4Particular proceedings in civil actions 16I Children Out—Of—Wedlock For purposes of determining whether party ...Preliminary proceedings would be irreparably harmed by discovery order Divorce such that order is reviewable by common law -4Discovery certiorari, discovery of financial worth information that is not material to any issue Mandatory disclosure rule does not preclude reasonably likely to be contested and that has trial court from dispensing with discovery been sought primarily to embarrass and bring beyond required financial affidavit in a given undue pressure on litigant through unwarranted case; rather, provisions are so framed as to publicity, by disclosure of sensitive personal eliminate necessity to make formal request for financial information to press, would be this discovery and, instead, to make it incurable by any possible action court could take responsibility of both parties to produce on final appeal. information without such a request. West's F.S.A. Family Law Rules of Proc., Rule 12.285. 10 Cases that cite this headnote 1101 Children Out-Of-Wedlock v-Preliminary proceedings WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA01187982 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 Divorce Handler, P.A., Boca Raton, for appellee-respondent 4-Discovery Berkery. Scope of discovery in modification proceeding Jerold I. Budney, Miami, for respondent Miami Herald is necessarily narrower than in plenary Publishing Co. proceeding to establish need and amount of such support in first instance; any new discovery Opinion should properly be limited to precise change in circumstances properly alleged and cognizable in requested modification. CORRECTED OPINION 2 Cases that cite this headnote FARMER, Judge. It's not unusual for a parent with custody of a young child to seek an increase in child support from the other parent; lrrt Children Out—Of—Wedlock awards of interim attorney's fees in such cases are 4Preliminary proceedings commonplace—as are disputes over discovery of finances and income. What makes today's cases unusual, however, Father was entitled, on certiorari review, to have is that the interim fees awarded and the discovery allowed broad financial discovery orders quashed in raise substantial questions as to the rightful scope of both child support modification proceeding, as trial in modification proceedings where the prior judgment court's failure to analyze need for requested was based on an agreement between the parties. discovery under unique circumstance of case was departure from essential requirements of These cases arise from an action to modify New York law which if uncorrected would lead to judgments determining paternity and fixing the amount of irreparable harm; father's financial worth support. The mother seeks to domesticate the New York affidavit demonstrated undeniable ability to pay judgments as a predicate to having a Florida court any reasonable increase in support, mother made increase the amount of support due. That in turn raises its clear her purpose to release to press any own questions as to the proper role of a new forum in financial worth information she discovered, and modifying consent judgments relating to child support. real basis for modification attempt appeared to On our own motion, we consolidate the cases and be mother's attempted relocation of litigation undertake to decide the issues together. outside original jurisdiction fixing support to new jurisdiction which might employ different standards. West's F.S.A. Family Law Rules of Proc., Rule 12.285. I. Background and Facts 3 Cases that cite this headnote Because context is everything, we first set the stage. The father is the well-known singer and entertainer, Tom Jones. He and the mother met after one of his concerts. After a relationship spanning a single encounter, they conceived the child who is the subject of this dispute.' In Attorneys and Law Firms 1988 the mother gave birth to a baby boy and thereafter brought a paternity action against Jones in a New York *1029 Edna L. Caruso of Caruso, Burlington, Bohn & court. That court adjudicated Jones as the father. Compiani, P.A., West Palm Beach, and Andrew S. Berman of Young, Berman & Karpf, P.A., North Miami While the paternity adjudication was on appeal, the Beach, for appellant-petitioner. parties settled the case in 1989. Jones agreed to annual Howard I. Weiss and David K. Friedman of Weiss & child support of $33,500 payable monthly, as well as WestlawNext" © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01187983 Haddad, Tonja 1/1212013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 lump sum payments of $37,433 for the mother's expenses attorney's fees, costs, and suit money under section and $59,000 for her attorney's fees. He also agreed to 61.16.3 The then assigned trial judge held a lengthy maintain a hospital and major medical benefit package evidentiary hearing that stretched for more than four days. (health benefits) for the child equivalent to the kind he At the conclusion, Judge Rosenberg entered a 48—page provides to one of his own employees, but she would be order in which he ordered the father to pay the following responsible for all the child's *1030 medical expenses not sums in interim attorney's fees and suit money: (1) covered by insurance. Finally, he agreed that he would $71,489 for fees already incurred; (2) $65,800 for pay all the costs of a private education for the boy, projected fees; (3) $4,533 in suit money for expenses including tuition not less than that charged at the most already incurred; and (4) $52,052 in projected suit expensive Ivy League universities. money.4 In short, the judge found $137,289 in interim court-awarded attorney's fees to be reasonable. Actually, The agreement was subject to approval by a New York however, Judge Rosenberg's order finds that the father state agency and ultimately by the New York court itself. had already made a prior—purely voluntary—payment of These approvals were sought under a New York statute $20,000 in fees to the mother's counsel, so we are really that allowed the enforcement of nonmodifiable child talking about $157,289 in total interim attorney's fees for support stipulations between consenting parents, subject the mother's counsel. Moreover, his order stresses that to the approval of the court. The New York court "the projected attorney's fees and suit money are interim approved this initial settlement agreement in 1989. That is only, and other periodic payments may be necessary," the first of the two New York judgments sought to be citing our decision in Robbie v. Robbie, 591 So.2d 1006, modified by the present action. 1010-11 (Fla. 4th DCA 1991).5 In 1992 the parents entered into a new agreement *1031 (21 We recognize that the trial judge has broad modifying their original agreement, whereby the mother discretion in setting interim awards of attorney's fees and released Jones from any further payment of health suit money in family law cases. Robbie, 591 So.2d at benefits in exchange for a one-time payment of $40,000. 1008. That discretion does not exist in the abstract, The New York court also approved this later agreement however, but is instead a discrimination informed by legal and modified the original child support judgment principles. The supreme court has recently held in Rosen accordingly. That is the second New York judgment v. Rosen, 696 So.2d 697 (Fla.1997), that Robbie and other sought to be domesticated in the present action. cases are incorrect in holding that attorney's fees under section 61.16 are limited to consideration of the factors of It appears that the child resided in Florida when the the need of the party seeking such fees and the ability of mother sued Jones in New York for paternity and support. the party from whom the fees are sought. As the court has Having agreed with Jones in New York to a now made clear in Rosen: nonmodifiable amount of support, which was approved by the New York court, she nevertheless commenced this "Under [section 61.16], the action in the Circuit Court in Broward County in 1996 to financial resources of the parties domesticate the New York judgments as a basis for are the primary factor to be seeking to modify them to increase the amount of support considered. However, other due and to reinstate the obligation to pay health benefits. relevant circumstances to be Although he is not a resident of Florida, she served him considered include factors such as with process while he was in this state in performance at a the scope and history of the concert? Shortly after this point the two appellate cases litigation; the duration of the were filed in this court. litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate 11. Nonfinal Appeal and Attorney's Fees or stall); and the existence and course of prior or pending art After commencement of her modification action, the litigation. Had the legislature mother filed a motion seeking temporary or interim intended to limit consideration to WestlawNext' © 2013 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA01187984 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Battery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 the financial resources of the parties, the legislature easily could Indeed, Jones argues that the Full Faith and Credit Clause have said so." of the United States Constitution7 limits the authority of a Florida court to modify nonmodifiable child support set 696 So.2d at 700. The court has further explained that: by a New York court in the absence of some demonstrable need of the child not being met by the "section 61.16 should be current judgment amount—which, he says, the mother has liberally—not not alleged. As we recently pointed out in Kramer v. restrictively—construed to allow Kramer, 698 So.2d 894 (Fla. 4th DCA 1997), Congress consideration of any factor has adopted specific legislation under this constitutional necessary to provide justice and provision *1032 relating to child support orders, the Full ensure equity between the parties." Faith and Credit for Child Support Orders Act, Pub.L.No. 103-383, § 3(a), 108 Stat. 4064, 28 U.S.C. § 17388 Id. (1996). In passing this new legislation, Congress took specific note of conflicting state laws as to the 131 141 In this case, it is clear that the trial judge below determination and enforcement of child support based his determination of fees solely on the financial obligations, which in turn had led to "excessive resources of the parties and failed to consider whether relitigation of cases and conflicting orders by the courts of under the applicable equitable considerations explained in various jurisdictions." See Pub.L.No. 103-383, § 2, 108 Rosen any award of fees would be proper in light of the Stat. 4064. peculiar circumstances' In a post settlement, post judgment case such as this, the factors identified in Rosen, The Act contains explicit provisions relating to other than the financial resources of the parties, assume modification of child support orders rendered by another even greater importance in the decision to award interim state. Section 1738B(e) permits a state court to modify a fees. In domestic relations cases seeking to modify or set child support order validly entered by the court of another aside a settlement, one factor the trial court should state only when two conditions are satisfied. First, the consider in deciding whether to award interim fees is the issuing court must have lost exclusive jurisdiction either need to impose some "economic rationality" on the party because neither the child nor any parent continues to initiating the post judgment litigation. See Oldham v. reside there, or instead because each of the parents has Oldham, 683 So.2d 579, 582 (Fla. 4th DCA 1996) (Polen, filed a written statement with the issuing court consenting J., concurring). We therefore find it necessary to reverse to modification in another state. See 28 U.S.C. § the present fee award for just such a consideration. 1738B(e)(2XA) and (B). Second, the modification proceeding must be filed in a state having personal In light of the special deference owed to final judgments jurisdiction over the nonmoving parent Id. at § 1738B(i). whether rendered by a court of this state or another, on Those parts of the record below furnished us by the remand it will be necessary for the trial court first to parties are insufficient for us to determine that either of assess the precise nature of the dispute to be litigated these conditions have been met in this case, and before it can proceed to determine whether an interim consequently we are unable to decide from the face of the award of additional fees beyond what Jones has already limited record we have whether Florida has the authority paid voluntarily is necessary or proper. This is, after all, under section 17388(e) to enter a modification order not a plenary proceeding to establish paternity and fix the binding Jones!' amount of support for the first time. It is instead an attempt by the custodial parent to modify a support In order to reach the question whether interim fees for a judgment entered by a court in another state. Moreover, modification attempt should be considered, the court will we stress, the New York judgments were entered upon first have to determine whether and to what extent any agreements of the mother and father respecting the modification may be had in Florida. That, in turn, will support obligations. Neither the agreements themselves, require the court to determine whether New York law will nor the judgments ratifying and enforcing these control the substantive legal issue of the propriety of agreements, should be lightly disregarded in a modification. To the extent that the settlement agreements modification proceeding brought in this state. purport to be the exclusive source of the mother's future support rights against Jones, her attempt to modify the WestlawNexts © 2013 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA01187985 Haddad, Tonja 1/1212013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 agreements on account of an alleged change in his income Jones timely responded to the action and objected to the may be an interpretation of the New York orders requested discovery. The trial court overruled his blanket requiring application of New York law under section objection to any discovery and ordered him to file a 1738B(hX2). These determinations are required in order financial affidavit as required by rule 12.285(d)10 and to to assess what contested issues might be legitimately respond to those interrogatories and document requests he resolved in a modification attempt here. felt were proper, stating specific objections to those thought improper. He then filed a financial affidavit Pi As we previously indicated, we agree with the mother asserting that he has $89,000 in net monthly income. At that the court has broad discretion in setting interim the same time, he filed a motion for a protective order attorney's fees in family law matters under section 61.16. asking that his discovery responses be kept confidential." We repeat, however, that it is nevertheless a discretion At that point, The Miami Herald sought to intervene in related to a determination of a legally sustainable the action below to oppose the protective order. controversy, properly raised in a Florida court. It is not a Ultimately, the trial court overruled all of his objections generalized discretion allowing the trial judge in every and denied any protective order for confidentiality, telling case to award an amount that might generally be incurred him that he could renew the motion as to any specific in litigating a fully contested divorce or paternity case. In discovery as to which he could show some special reason. this instance, the actual controversy is singular and This petition seeks review of the trial court's denial of discrete, involving not so much a factual dispute, but is these requests. instead concentrated on a limited legal issue. Again the threshold issue is whether modification can be sought in As to Jones's motion for a protective order against Florida and, if so, to what extent the New York orders are financial discovery beyond the financial affidavit, the trial modifiable by a Florida court in light of the agreements court relied on the recently adopted Family Law Rules of on which they were based and the apparent absence of Procedure—more specifically rule 12.285.12 Subdivision any allegation of a substantial change in the (d)(3) of rule 12.285 appears to make some financial circumstances under which they were made. It is only discovery mandatory in all cases." Rule 12.285(aX1), when these matters are settled that the trial court will be however, provides that "[e]xcept for the provisions as to in a position to confront all the equitable considerations financial affidavits, any portion of this rule may be that Rosen requires for attorney's fees under section modified by order of the court or agreement of the 61.16. parties."14 In spite of that language, the trial court felt that it had no power to relieve Jones of the burden of responding to the additional discovery sought by the mother. In this we think the trial court has departed from the essential requirements of the law. Its error was III. Certiorari and Discovery compounded by its blanket refusal to restrain the mother and her counsel from disclosing all of Jones's financial This leads us to the petition for certiorari, for it confronts information to the press—which they repeatedly have the scope of discovery in this modification proceeding. assured Jones and the court that they fully intend to do. First we delineate the procedural events bringing us the issue. The mother has filed a financial affidavit showing 16I 171 First, we do not read the mandatory disclosure rule that she has no income other than what Jones pays her in to preclude the trial judge from dispensing with discovery child support under the New York judgments.9 She has beyond the required financial affidavit in a given case. served *1033 the father with the standard, broad Rather we read the provisions of subdivisions (b), (c), and discovery requests generally applicable in routine family (d) of rule 12.285 to be self-executing but not necessarily law matters. Among other things, she seeks information applicable in all cases. In other words, we think that these and documentation from him as to all sources of his particular provisions were so framed as to eliminate the income, including fees from his performances, royalties, necessity to make a formal request for this discovery and, investments, and the like, for him individually as well as instead, to make it the responsibility of both parties in a from companies in which he may have some interest. She family law case to produce the information without such a also seeks detailed information and documents evidencing request. As the Commentary to the rule states: the entire range of his investments, assets and liabilities. "This rule creates a procedure for automatic financial disclosure in family law cases. By requiring production WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA01187986 Haddad, Tonja 1/1212013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 at an early stage in the proceedings, it is hope that the persons outside of those to whom disclosure is necessary expense of litigation will be minimized.... Additionally, in the action. the court may, on the motion of a party or on its own motion, limit the disclosure requirements in this rule In Martin—Johnson Inc. v. Savage, 509 So.2d 1097 should it find good cause for doing so."15 (Fla.1987), the court held that ordinarily an order allowing financial worth discovery did not by itself *1034 Thus the automatic discovery established by the present the kind of irreparable harm necessary for review rule is subject to being limited or curtailed by the trial by common law certiorari. There the discovery was court if there is some reason for doing so.'6 requested in connection with a claim for punitive damages where there had yet been no indication that the issue of Indeed good reasons appear in this particular case for the punitive damages would actually be submitted to the jury. trial judge to limit the standard discovery. This is not an The court explained that "[i]n certiorari proceedings, an action in which the entire range of financial issues order may be quashed only for certain fundamental attendant to a dissolution of marriage or paternity case, errors." 509 So.2d at 1099. In deciding that discovery of a just getting under way, is to be litigated.17 Moreover she litigant's finances by itself was generally not the type of does not allege any unusual changes—such as health or harm contemplated by certiorari review, the court relied physical impairment of the child arising since the New to a great extent on Kilgore v. Bird, 149 Fla. 570, 6 So.2d York decrees—or that the needs of the child have 541 (1942). Because Kilgore apparently provides some substantially changed in some way not contemplated insight to ascertain when common law certiorari is when the agreements were approved by the court in New available to review discovery orders, we now turn to it. York. Rather, the mother seeks to avoid these agreements with Jones and instead to compel payments greater than Kilgore was a common law certiorari proceeding she bargained for. As a basis for the modification she confronting an order allowing answers to interrogatories alleges merely that Jones has lately enjoyed a resurgence in an action for damages from an alleged alienation of in his career, thereby giving rise to a "good fortune" affections. Many of the questions were so framed as to modification under Florida law, and that the child has violate the rules of evidence, while others appeared, in the grown since the entry of the New York judgments. words of the court, to violate the civil rights of the party to whom they were propounded. The court said: The argument raised by Jones below was that the unique nature of the mother's claims should result in a substantial *1035 "In ruling on objections to interrogatories, the narrowing of discovery. The mere fact that Florida may rules of admissibility of evidence are controlling and acquire judicial jurisdiction to consider a modification of should be applied. A question which elicits an answer child support—if, indeed, that is the case here—does not not material to the issues should not be allowed. A inevitably mean that the Florida court should proceed to question requiring an answer which would violate the reconsider the matter de novo when, as here, final decrees civil rights ofthe witness should be prohibited, because in another state have approved an express agreement if such right is violated the wrong cannot be righted. It, fixing support and there has not been alleged any therefore, follows that requiring a witness to answer substantial change unforeseen by the parties. Even some questions may constitute error which may or may assuming that full faith and credit for the New York not warrant reversal on appeal and inflict no injury on judgments would allow any modification at all, he argues the witness, while requiring the witness to answer that no permissible change in the support amount would other questions might so violate his civil rights as to entail the kind of broad, generalized discovery that the make review on appeal entirely inadequate and would trial court has allowed to take place. Moreover, he urges constitute such a departure from the essential that the power of a Florida court to force him to respond requirements of the law as to make a ruling requiring with financial worth information in order for her to make the answer reviewable on certiorari to adequately her claim does not allow her to use this compulsory protect the constitutional or lawful rights of the discovery process to make his private finances available witness." [e.s.] to the world. He contends that the fact that the court may force him to disclose this information to her in pretrial 6 So.2d at 545. In Kilgore, the court was actually unable proceedings should not deprive the court of the power to to reach the substantive issues and returned the case to the protect the compelled disclosure of this information to trial court. WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA01187987 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 immediate family, much less to strangers. Private Is' Martin-Johnson stated that disclosure of personal financial worth information is thus usually withheld from financial information was not alone sufficient to establish the world at large unless the courts compel such irreparable harm for common law certiorari. See also disclosure. Even then, disclosure is made only so far as Eberhardt v. Eberhardt, 666 So.2d 1024 (Fla. 4th DCA necessary. 1996) (production of income tax returns in action for accounting indistinguishable from financial worth We note that Jones's financial affidavit discloses that his information sought in Martin—Johnson; mere production net monthly income is at least $89,000, or more than SI of financial worth without more insufficient to show million on an annual basis. This admission by Jones raises irreparable harm). Hence irreparable harm in the present a serious question in the context of this case whether any discovery order is indispensable to enable us to review it additional financial worth discovery from him is legally by common law certiorari. See Bared & Co. v. McGuire, relevant and *1036 reasonably calculated to lead to 670 So.2d 153 (Fla. 4th DCA 1996). The kind of admissible evidence on any contested issue actually discovery that might cause injury of an irreparable nature cognizable in this modification of the New York decrees. was illustrated by "cat out of the bag" information. The As we have seen earlier, under the Family Law Rules, court defined such a disclosure as "material that could be disclosure of personal financial worth is required unless used by an unscrupulous litigant to injure another person excused by the trial judge. Thus the state compels or party outside the context of the litigation." 509 So.2d at disclosure of information that one would be expected to 1100. keep private because it is necessary to enable the system for child support to function. On the other hand, the in We must decide whether Jones has established the kind constitutional right of privacy undoubtedly expresses a of irreparable injury contemplated by the court in Kilgore policy that compelled disclosure through discovery be and MartinJohnson. The discovery of financial worth limited to that which is necessary for a court to determine information that is not material to any issue reasonably contested issues of support. See Winfield, 477 So.2d at likely to be contested and—equally important—that has 547 (right of privacy is fundamental right, requiring a been sought primarily to embarrass and bring undue compelling state interest to justify an intrusion on privacy, pressure on a litigant through unwarranted publicity by but then only by the least drastic means). The rules disclosure of sensitive personal financial information to relating to family law cases contemplate some privacy the press would be incurable by any possible action we interests in such proceedings, for they expressly address could take on final appeal from an order modifying the sealing of court records in these cases. See Fla.Fam.L.R.P. child support. Without a protective order, irrelevant 12.280(c) ("A determination as to the confidentiality of a details of Jones's financial holdings that he has apparently court record shall be made in accordance with Florida guarded assiduously from disclosure to the press would be Rule of Judicial Administration 2.051.") and 12.280(d) disclosed through the mother to the Miami Herald and ("Records found to be confidential under Florida Rule of thence beyond recall. Moreover the revelation would have Judicial Administration 2.051 shall be sealed on request resulted from a fundamentally erroneous legal of a party.").19 interpretation of the discovery rules that would inevitably evade review until long after the disclosure had been In this case, the claim of confidentiality asserted by Jones made. relates to his responses to discovery compelled by the applicable rules of procedure. The responses to such The constitution of the State of Florida contains an discovery are not filed directly in the court file before a express right of privacy."' Although there is no catalogue trial or hearing unless there is some special need to do so. in our constitutional provision as to those matters See, e.g., Fla.R.Civ.P. 1.340(e) ("The original or any copy encompassed by the term privacy it seems apparent to us of the answers to interrogatories may be filed by any party that personal finances are among those private matters when the court should consider the answers to kept secret by most people. See Winfield v. Division of interrogatories in determining any matter pending before Pari—Mutuel Wagering, 477 So.2d 544 (Fla.1985) (law in the court."); and Fla.R.Civ.P. 1.350(d) ("Unless required Florida recognizes an individual's legitimate expectation by the court, a party shall not file any of the documents or of privacy in individual's private bank account, financial things produced with the response. Documents or things records). Disclosure of income and personal investments may be filed when they should be considered by the court is often not made even to siblings and others within the in determining a matter pending before the court.")20 At WestlawNext' © 2013 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA01187988 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 this point, the discovery is not yet evidence in the case. In admissible evidence, or be reasonably calculated to lead fact it may never become evidence formally admitted in to admissible evidence. See Fla.R.Civ.P. 1.280(b)(I) any court hearing or trial. It is merely information from (discovery required to be relevant to the subject matter of which admissible evidence may be found and ultimately the pending action); Allstate Ins. Co. v. Langston, 655 adduced. So.2d 91 (Fla.1995) (discovery in civil cases must be relevant to the subject matter of the case and must be " The scope of discovery in a modification proceeding is admissible or reasonably calculated to lead to admissible necessarily narrower than in a plenary proceeding to evidence); Amente v. Newman, 653 So.2d 1030 (Fla.1995) establish the need and amount of such support in the first (concept of relevancy is broader in discovery context than instance. Where there has been no prior adjudication of in trial context, and party may be permitted to discover the support issue, as for example when a dissolution of relevant evidence that would be inadmissible at trial if it marriage or paternity case is first filed, it is usually may lead to discovery of relevant evidence). Even the necessary to require broad disclosure by both parties to possibility of unearthing some admissible evidence from provide a trial judge with an evidentiary basis to decide routine discovery responses is constrained by a proper contested issues as to support. When, as here, the issue is limitation of the discovery to the range of the permissible modification of prior adjudications of support, however, issues to be litigated. the necessity for discovery is decidedly different. The prior adjudications must necessarily be understood to The mother's discovery request is bottomed on the dictum have been made on a record of known facts about of the supreme court in Miller v. Schou, 616 So.2d 436, financial worth. Thus assuming that a Florida court has 438 (Fla.1993) (under Florida law, child of a the authority to modify another state's support order, any multimillionaire would be entitled to sham in standard of new discovery should properly be limited to the precise living of wealthy parent—for example to attend private change in circumstances properly alleged and cognizable school or to participate in expensive extracurricular in the requested modification. In this case, however, the activities—and would accordingly be entitled to a greater trial judge did not engage in the kind of analysis just award of child support to provide for these items, even outlined as to the permissible scope of discovery. though provision for such items would not be ordered in a different case); but see Finley v. Scott, 687 So.2d 338 We conclude that the failure to analyze the need for (Fla. 5th DCA), rev. granted, 697 So.2d 510 (Fla.1997) the requested discovery under the unique circumstance of (father could not be required, regardless of his ability to this case was a departure from the essential requirements pay more than was necessary to meet the child's current of law which if uncorrected will lead to the kind of need for support, to contribute to fund for child's irreparable harm contemplated by MartinJohnson. There unspecified future needs in order for child to share in are at least two identifiable circumstances compelling this father's "good fortune").r Yet the mother's request to extraordinary review to set a limit on *1037 the extent of modify support arises from her attempt to relocate this discovery and to protect against unwarranted disclosure. litigation outside of the jurisdiction fixing the support to a First, Jones's financial worth affidavit demonstrates an new jurisdiction that may employ different standards in undeniable ability, without knowing anything further setting support in the first instance. Thus, even if Florida about his finances, to pay any possible reasonable has jurisdiction to modify support, there seems little if any increase in support that changed circumstances of the justification for allowing discovery as to his financial child could now require. As we noted earlier, he admits to worth. having net disposable income of more than SI million annually for support purposes. That disclosure raises Second, and indispensable to our conclusion of substantial doubts in our minds as to the necessity for irreparable harm, the mother has frankly made clear her further discovery as to his financial worth, even if (for the purpose to release to the press any financial worth sake of argument) the contested issue for modification information she acquires from Jones during discovery.13 purposes was in his ability to pay additional support?' At *1038 the same time, the Miami Herald has made equally clear its purpose to publish this information. We We again stress that the very narrow range of issues stress that we are considering financial worth information possible in this proceeding should yield a corresponding that is exchanged in discovery and that may never be used narrowing of discovery. Generally, the broad standard for as evidence in any trial or evidentiary proceeding. While discovery is that the information sought be relevant, financial worth may be critically important to enable a WestlawNexi © 2013 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA01187989 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 trial court to ascertain the base line of financial worth in a address Florida's claim to jurisdiction over the plenary proceeding for dissolution of marriage or modification issue under section I738B(i). Even if Florida paternity and thus to fix the original amount of child has such jurisdiction, the court will still want to accord support, there is nothing in the Family Law Rules sufficient respect to the prior agreements made by the suggesting that one of its purposes is to facilitate mother. The mere fact that Florida may have jurisdiction disclosure to the press during discovery of such sensitive to modify support does not alone justify canceling information. The fact that the State of Florida may not agreements solemnly made in another state and approved inhibit the freedom of the press to publish information it by a court there, simply because they concern child deems newsworthy does not mean that the instruments of support different from that which a Florida court might the civil justice system of the State of Florida should be have set in the beginning. It is against this background of used simply to assist in the disclosure and publication of legal framework that the trial court must assess the such information in the media. necessity for any additional discovery. We leave that to the trial judge in the first instance on remand. Moreover, as we have seen, the Family Law Rules and Rules of Judicial Administration contemplate claims of We therefore reverse the interim award of attorney's fees. confidentiality as to discovery information. Inexplicably, At the same time we quash the discovery orders, and the trial judge here denied the motion for a protective remand the case to the trial court for proceedings not order without addressing these issues at all. Indeed, the inconsistent with the views we have expressed today. trial judge's ruling allows disclosure through the Miami Herald to the world at large of information apparently protected by a right of privacy before any determination of confidentiality and sealing has been made. We regard this as the kind of extraordinary harm, irremediable on SHAHOOD and GROSS, B., concur. final appeal, that lies within our certiorari jurisdiction. Parallel Citations We also repeat that under the circumstances of this case any claim to modification must begin with an abundant 23 Fla. L. Weekly D393 deference to the full faith and credit requirements of the recent federal legislation. The first order of business is to Footnotes Ile and the mother have never married or cohabited. 2 Jones has not raised any issue on appeal as to the personal jurisdiction of the Florida court over him with respect to his obligation of child support. But see § 48.193(1Xe), Fla. Stat. (1995) (defining matrimonial domicile or residence in Florida as basis for long-ann jurisdiction over nonresidents in proceedings for child support). 3 § 61.16(1), Fla. Stat. (1995) ("The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals."). 4 The suit money appears to be earmarked for expert witnesses, principally accountants. 5 Judge Greene's stay order directs the father to make immediate payment of $90,882 to the mother's counsel, who in turn is required to execute an affidavit agreeing to reimburse the father upon receipt of our mandate for any amount determined not to have been validly earned. As to the remainder of the total interim award, the stay is conditioned on the father furnishing a bond in the amount of $123,590. If mother's counsel does not execute the affidavit of reimbursement, then the total bond is $232,649. Judge Greene's stay order further indicates a willingness to allow mother's counsel to invade any sums deposited with it pending the appeal. 6 Rosen was, of course, decided after Judge Rosenberg entered his order awarding interim fees, and thus he did not have the benefit of the supreme court's decision. WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA01187990 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Battery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 7 See An. IV, § 1, U.S. Conn. ("Full Faith and Credit shall be given in each State to the ... judicial Proceedings of every other State."). There is nothing to tell us whether he continues to be subject to the personal jurisdiction of the New York court or, instead, whether he has consented to modification in Florida. The fact that Jones may now reside in California does little to tell us whether he continues to be subject to the jurisdiction of the New York court. 9 There is no indication, however, that she is unable to work and earn income on her own. l0 See Fla.Fam.L.R.P. 12.285(d) (mandatory disclosure for parties whose combined income exceeds $50,000 per annum). I1 Ile had previously offered to provide her and her counsel with a financial affidavit if she and counsel would agree to keep the affidavit and his financial information confidential. She and her counsel refused to do so. 12 Fla.Fam.L.R.P. 12.285(bX2) ("Any document required under this rule for any initial or supplemental proceeding shall be served on the other party for inspection and copying within 45 days of service of the initial pleading on the respondent."). 13 Fla.Fam.L.R.P. I2.285(dX3) ("In any temporary or permanent supplemental proceeding regarding financial relief, documents shall be produced as set forth in subdivision (dX1) and (d)(2), respectively and shall be served as set forth in subdivision (b)."). 14 Fla.Fam.L.R.P. 12.285(aXI). 15 Fla.Fam.L.R.P. 12.285. 16 Fla.Fam.L.R.P. 12.285(g) ("Objections to the mandatory automatic disclosure required by this rule shall be served in writing at least 5 days prior to the due date for the disclosure or the objections shall be deemed waived. For good cause shown, the court may extend the time for the filing of an objection or permit the filing of an otherwise untimely objection."). 7 We note that there is no suggestion by the mother that the New York agreements were coerced or fraudulently procured, or that in inducing the agreements Jones misrepresented or understated his income or ability to pay support. 18 Art. I, § 23, Fla. Const. ("Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein."). 19 Florida Rule of Judicial Administration 2.051(cX9) specifically recognizes and authorizes confidentiality for laJny court record determined to be confidential in case decision or court rule on the grounds that ... (A) confidentiality is required to .... (iv) obtain evidence to determine legal issues in a case; [or) (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed...." 20 Both rule 12.340 (Interrogatories) and rule 12.350 (Production of Documents) refer to the applicable Rules of Civil Procedure. 21 We again emphasize that the real basis for the mother's modification attempt appears to be her attempted relocation of this litigation to Florida where parental support agreements may be treated differently than in New York. 22 We discern differences between this case and Miller, which involved a modification to establish fir the first lime precisely what the father's financial resources really were after he had newly entered into the practice of medicine and had thus begun for the first time to earn considerable income. In contrast, the future "good fortune" of Jones must be understood to have been within the contemplation of the contracting parties when they settled the matter with the approval of the New York court. Even assuming for the sake of argument that Miller K Schorr is the applicable law—recalling, of course, that this is an attempt to modify New York judgments—the prospect of more good fortune for Jones is one of the very future contingencies against which Jones's agreement was presumably intended to protect. Thus, the agreements established the standard of living for the child, so discovery as to his "good fortune" in that regard is similarly misplaced. 23 We view with the same skepticism as did the trial court the attempts of the mother to justify her refusal to keep Jones's financial information confidential by stating that all she wants to do is test the credibility of his finances in a "public arena"—by which, she now contends, she meant the courtroom. As we read the context, it is manifest that her intention is to reveal any discovery WestlawNext' © 2013 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA01187991 Haddad, Tonja 1/12/2013 For Educational Use Only Woodward v. Berkery, 714 So.2d 1027 (1998) 23 Fla. L. Weekly D393 information to the Miami Herald. End of Document C 2013 Thomson Reuters. No claim to original U.S. Government Works. WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA01187992