5D09-4522 Hickey v. Burlinson

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-4522

Case Date: 04/26/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

DIANA HICKEY, Petitioner, v. JOHN R. BURLINSON, Respondent. ________________________________/ Opinion filed April 30, 2010 Petition for Certiorari Review of Order from the Circuit Court for Seminole County, Nancy F. Alley, Judge. Richard L. Wilson, Orlando, for Petitioner. George B. Wallace, Sanford, for Respondent. Case No. 5D09-4522

PER CURIAM. Diana Hickey petitions for writ of certiorari following the trial court's denial of her motion to temporarily halt visitation between her two children and their father, John Burlinson. Hickey alleged that Burlinson was abusing alcohol during his visitation and, as a result, endangering the children's safety. Hickey requested an abatement of

visitation pending a determination of the extent of Burlinson's alcohol consumption and the danger posed to the children. Along with the motion, she requested, pursuant to Florida Family Law Rule of Procedure 12.407, leave for the minor children to attend and

testify at the hearing. The trial court granted the motion and instructed Hickey's counsel to arrange a date and time for the children to testify. Hickey and the children travelled to Florida from Massachusetts for the hearing and appeared with counsel and a court reporter. Hickey objected when the trial court requested the children's presence in chambers for their testimony, but would not allow the court reporter to be present. The trial court then asked Hickey to withdraw her rule 12.407 motion. Hickey declined, stating that without the children's testimony there was no evidence of the alleged alcohol abuse and she could not meet her burden to provide record evidence in support of the motion. The trial court refused to conduct the

interview with the court reporter present and denied the motion to abate visitation for lack of evidence. Hickey argues that the trial court denied her due process by not allowing her to present evidence supporting her claim. She also contends that "being heard" means more than the opportunity for her counsel to explain a position to the trial court. Lastly, she submits that an in camera evidentiary inquiry outside the presence of the court reporter precludes judicial review, and also denies her due process. We initially consider the issue of jurisdiction. Hickey alleges this court has

jurisdiction pursuant to Article V, section 4(b)(3)1, of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(3), which confer original jurisdiction upon district courts of appeal to issue writs of common law certiorari. We disagree because the order on appeal should be considered an appealable, non-final order.
1

Petitioner erroneously cited Article V, section 4(b)(1), of the Florida Constitution as conferring original jurisdiction on the district courts of appeal to issue writs of certiorari. 2

Under rule 9.130(a)(3)(C)(iii), appealable non-final orders are limited to those that determine "the right to immediate monetary relief or child custody in family law matters." (Emphasis added.) A "child custody proceeding" is defined as one in which legal custody, physical custody, residential care, or visitation with respect to a child is at issue. See

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