Smith v. Smith
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHRISTOPHER SMITH, ) ) Appellant, ) ) v. ) ) CARLA SMITH, ) ) Appellee. ) ) ________________________________ ) Case No. 2D05-5665 Opinion filed July 7, 2006. Appeal from the Circuit Court for Collier County; Franklin G. Baker, Judge. Toni A. Butler, Esquire of Toni A. Butler, P.A., Naples, for Appellant. Carla Smith, pro se. THREADGILL, EDWARD F., Senior Judge. Christopher Smith ("the Former Husband") appeals a postdissolution order of the trial court that modified his visitation privileges with the parties' two children, one of whom is still a minor. We reverse. The parties have been divorced for more than thirteen years. They started having visitation problems after the Former Husband moved to Colorado. Carla Smith, the Former Wife, filed a motion to have the Former Husband's visitation privilege suspended for failure to comply with their agreement. Mediation failed, and the case was submitted to a general master. The general master submitted a report and a recommended order which required the Former Husband to have supervised visitation in Florida. The Former Husband filed exceptions to the general master's order and requested a hearing. The trial court denied the exceptions two years later without conducting a hearing. Florida Family Law Rule of Procedure 12.490(f) provides that "[i]f exceptions are filed [to a general master's report], they shall be heard on reasonable notice by either party or the court." This court has interpreted this rule to require a mandatory hearing before the trial court if a hearing is requested. See Yoxsimer v. Yoxsimer, 918 So. 2d 997 (Fla. 2d DCA 2006) (holding that the trial court erred in denying the wife's exceptions to the magistrate's order without first conducting a hearing); see also Knorr v. Knorr, 751 So. 2d 64 (Fla. 2d DCA 1999); Ellett v. Ellett, 546 So. 2d 1108 (Fla. 2d DCA 1989). We therefore reverse and remand for further proceedings. Reversed and remanded. CANADY and LaROSE, JJ., Concur. -2-
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