BOUCHARD v. BOUCHARD (2020)

Sandy Alene Bouchard (the Wife) seeks certiorari review of an order sua sponte granting a motion to disqualify and remove the guardian ad litem (GAL) filed by Jason Barrett Bouchard (the Husband) in their marriage dissolution proceedings. The Wife argues that the circuit court departed from the essential requirements of the law by granting the motion without conducting a hearing and by applying an erroneous standard. We agree and grant the petition.

The parties are in the midst of a dissolution action in which time-sharing and parental responsibility of their minor children are contested issues. In September 2018, the circuit court entered a stipulated order appointing Laurie R. Chane as GAL and requiring the Husband to pay her fees. In May 2019, the court held a hearing on two motions filed by the GAL: (1) motion for a protective order against the Husband's discovery requests and (2) motion to define the terms and conditions of payment of her fees. Over one month after the hearing, the Husband filed an amended expedited motion to disqualify and remove the GAL.

In August 2019, the court entered three orders that resolved the GAL's motions. However, in the order dated August 19, 2019, the court also sua sponte granted the Husband's motion to disqualify and remove the GAL without having conducted a hearing on the motion. The court ruled, “While few guardian ad litem assignments are without challenges, this case, due to its pugnacious tone, brought with it added challenges. The dispute over the payment of the Guardian Ad Litem fees has poisoned the necessary relationship between the Husband and the Guardian Ad Litem.”

It is this portion of the order from which the Wife seeks certiorari review. To be entitled to such review, the Wife “must establish the following three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Plantz v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). Elements (2) and (3) are jurisdictional, and the appellate court must resolve those elements prior to considering whether the order constitutes a departure from the essential requirements of the law. Id.

We conclude that the order disqualifying and removing the GAL results in material injury that cannot be corrected on appeal. While the court has the discretion to appoint a GAL based on the best interests of the children, see § 61.401, Fla. Stat. (2017),¹ this specific GAL was appointed based on a stipulation of the parties in a case where time-sharing and parental responsibility of their minor children are hotly contested issues. While not identical, the injury from the removal of the GAL in these circumstances is comparable to that which triggers certiorari review of orders granting motions to disqualify counsel. See, e.g., Frye v. Ironstone Bank, 69 So. 3d 1046, 1049 (Fla. 2d DCA 2011); Alto Constr. Co., v. Flagler Constr. Equip., LLC, 22 So. 3d 726, 727 (Fla. 2d DCA 2009). Here, the court must consider the parties' competing interests as well as their stipulation to appoint the GAL and the children's best interests. And the asserted lack of due process also constitutes an injury that is reviewable by certiorari. See Presidio Networked Sols., Inc. v. Taylor, 115 So. 3d 434, 435 (Fla. 2d DCA 2013).

Furthermore, the injury arising from the removal of the GAL cannot be corrected on postjudgment appeal. It is hard to predict how the removal of the GAL would affect the dissolution proceedings. By the time the order disqualifying and removing the GAL was entered, she had been working on this case for a year. As she has not completed her investigation, there is no practical way to determine what her testimony would have been. Cf. Office of Attorney Gen., Dep't of Legal Affairs v. Millennium Commc'ns & Fulfillment, Inc., 800 So. 2d 255, 257 (Fla. 3d DCA 2001) (concluding that certiorari review of an order denying discovery was proper because there was no way to determine what the witness's testimony would have been or its effect on the result of the case); Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000) (holding that certiorari was the proper method to review an order denying a request for deposition or limiting answers therein).

We reject the Husband's argument that the Wife's injury could have been remedied if she had pursued her cross-appeal in Case No. 2D19-3437. That case, which is pending, is the Husband's interlocutory appeal of the portion of the August 19, 2019, order concerning payment of the GAL's fees. This court has appellate jurisdiction to review that portion of the order because it involves “the right to immediate monetary relief” in a family law matter. Fla. R. App. P. 9.130(a)(3)(C)(iii)(a). But rule 9.130 provides no basis for review of the portion of the order disqualifying and removing the GAL, including by cross-appeal. See Fla. R. App. P. 9.130(g). Thus, the Wife properly dismissed her cross-appeal in that case.

Having determined that we have certiorari jurisdiction, we now turn to the issue of whether the Wife has shown a departure from the essential requirements of the law. The Wife asserts that the circuit court departed from the essential requirements of the law by granting the motion to disqualify and remove the GAL without conducting a hearing and by applying an erroneous standard.

“A failure to observe ‘the essential requirements of law’ has been held synonymous with a failure to apply ‘the correct law.’ ” Mahany v. Wright's Healthcare & Rehab. Ctr., 194 So. 3d 399, 401-02 (Fla. 2d DCA 2016) (quoting Hous. Auth. v. Burton, 874 So. 2d 6, 8 (Fla. 2d DCA 2004)). It is well-settled that a parent in a dissolution proceeding has a due process right to notice and an opportunity to be heard on motions filed by the other parent. See, e.g., Weissman v. Weissman, 102 So. 3d 718, 721-22 (Fla. 2d DCA 2012); Aiello v. Aiello, 869 So. 2d 22, 23 (Fla. 2d DCA 2004). Thus, absent extraordinary circumstances it is a departure from the essential requirements of the law for the court to rule on a motion in a dissolution action without conducting a hearing. See Aiello, 869 So. 2d at 24; Bronstein v. Bronstein, 167 So. 3d 462, 464 (Fla. 3d DCA 2015).

The Wife also asserts that the circuit court applied an erroneous legal standard to disqualify the GAL. We agree. “[T]o disqualify an agreed-upon guardian, ‘the facts must be egregious, and the burden heavy. To do otherwise would invite any litigant who anticipates even a mildly unfavorable report by a guardian to seek the guardian's removal.’ “ O'Neill v. O'Neill, 812 So. 2d 448, 450 (Fla. 5th DCA 2002) (quoting with approval the legal standard applied by the trial court). The court must find that there is “bias or prejudice on the part of the guardian ad litem.” Id.

In this case, the court based its decision to disqualify the GAL on a finding that the relationship between the GAL and the Husband had been “poisoned” by the fee payment dispute. Such a finding might support a determination that the GAL was biased or prejudiced, but the court did not address the issue. And the court ruled without hearing from the GAL herself.

In summary, the circuit court departed from the essential requirements of the law by granting the motion to disqualify and remove the GAL without conducting a hearing and by applying an erroneous standard. We therefore grant the Wife's petition for certiorari and quash the portion of the order granting the Husband's motion to disqualify and remove the GAL.

Petition granted; order quashed.

FOOTNOTES

1.   Section 61.401, Florida Statutes (2017), requires the court to appoint a GAL when there are well-founded and verified allegations of abandonment, neglect, or child abuse; however, there are no such issues in this case.

SILBERMAN, Judge.

NORTHCUTT and MORRIS, JJ., Concur.