MCFALL v. WELSH (2019)

ON MOTION FOR STAY PENDING REVIEW

Pending before this court is the petition of Kelly McFall and John McFall seeking certiorari relief regarding a nonfinal order that compels them to produce an unredacted, signed copy of their 2017 jointly-filed federal income tax return. They contend that the trial court erred because John McFall is not a party to the underlying litigation between his wife, Kelly, and the Respondent, Donald A. Welsh, to modify the final judgment dissolving their marriage. See generally Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103–04 (Fla. 2d DCA 2012) (granting certiorari relief and quashing nonfinal order compelling former wife to produce unredacted copy of federal income tax return filed jointly with new husband who was not a party to the underlying litigation to modify final judgment of dissolution of marriage).¹ The McFalls have filed with this court a motion to stay this nonfinal order pending determination of their certiorari petition.

The McFalls previously filed a separate motion in the trial court to stay the enforcement of this nonfinal order. That court has not yet ruled on the motion. Because we anticipate a prompt ruling by the trial court, we deny the instant motion to stay, but do so without prejudice to the McFalls filing a subsequent motion, if necessary, with our court after the trial court has ruled. See Fla. R. App. P. 9.310(f).

MOTION FOR STAY DENIED WITHOUT PREJUDICE.

FOOTNOTES

1.   We acknowledge that this is the second appearance before this court by the parties regarding the production of this tax return. In case number 5D18-1776, we denied the McFalls' earlier petition for certiorari relief “[b]ased on the limited record and the lack of a hearing transcript.” Because our denial of the prior certiorari petition was not a ruling on the merits, it did not establish the “law of the case,” see Casey-Goldsmith v. Goldsmith, 735 So. 2d 610, 610 (Fla. 5th DCA 1999), and should not be so considered by the trial court when ruling on the motion to stay filed below.

PER CURIAM.

COHEN and LAMBERT, JJ., concur. GROSSHANS, J., concurs in result only.