Excerpted from his Answer Brief, this is his counter to my Second Issue. My Reply is here.
II. The Trial Court Did Not Commit Error in Striking Former Wife’s Pleadings
Summary
The Wife was specifically ordered to appear at a video/deposition, coordinated by counsel for both parties (1 R. 195-195.), of which she again refused to attend. On May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1 R. 196-199.), ordering the Wife to provide specific missing discovery materials to the Husband’s counsel. The Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety”. (1 R. 196-199.) The Wife did not object to this Order. The Wife simply refused to comply again. Therefore, the Court exercised allowable discretion, and because of the Wife’s numerous refusals to obey court orders, and the Wife’s refusal to attend a Court Ordered deposition, the Lower Tribunal exercised discretion that was well within its’ authority, and properly struck the Wife’s pleadings.
Argument
Florida Family Law Rules of Civil Procedure 12.380 states that Florida Rule of Civil Procedure 1.380 shall govern the failure to make discovery in family law matters and related sanctions. Under Fla.R. Civ.P.Rule 1.380(b)(2), if a party…fails to obey an order to provide or permit discovery…the court in which the action is pending may make any of the following orders:…(C) An order striking out pleadings or parts of them…or rendering a judgment by default against the disobedient party.
In this case, the Former Wife consistently, continuously and willfully refused to obey numerous direct orders of the Lower Tribunal, in ordering the Former Wife to provide discovery to the Former Husband. The Former Wife was served with Request for Standard Family Law Interrogatories, and Request to Produce on or about March 22, 2011. 1 R. 7-14; 1 R. 15-15. The Former Wife failed to comply with the requested disclosure in the time and manner prescribed by law, did not object, nor did she request an extension of time. On or about February 16, 2012, the Former Husband filed an ex parte Motion to Compel Discovery. 1 R. 61-62. The Court granted an Order Compelling Discovery (1 R. 70-70) on February 22, 2012, ordering the Former Wife to fully respond to the Request for Standard Family Law Interrogatories and Requests to Produce, within ten (10) days from the date of the order.
On April 9, 2012, the Former Husband filed a Motion for Contempt (1 R. 131-133.) as the Former Wife still refused to comply with the prior Order on the Motion to Compel. Additionally, on May 2, 2012, Former Husband filed a Motion to Compel Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 190-192.
On May 10, 2012, the Court granted the Motion to Compel Attendance At Video/Teleconference Deposition Duces Tecum and issued an Order Compelling Wife’s Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 195-195. As the Court was well aware of the Former Wife’s prior refusals to provide discovery, at the hearing to compel Wife’s deposition, the Court specifically ordered, “The Wife shall appear in person for Deposition Duces Tecum via Video/Teleconference on Wednesday, May 23, 2012, from 9:00 am to 12:00 noon.” The Court Order was not objected to at the time it was issued. The Court and counsel for the Former Husband made specific provisions in an attempt to accommodate the Former Wife. Since Former Wife had not disclosed her address, the Court ordered, “Because the Wife resides out of State of Florida and has not disclosed her address, the Wife shall appear at a location designated by Wife’s counsel. Wife’s counsel shall coordinate with Husband’s counsel, and arrange for the location of the Wife’s video/teleconference deposition which shall be initiated by the Husband’s counsel and scheduled and coordinated through U.S. Legal Support or any other licensed court reporting agency as selected by Husband’s counsel”. 1 R. 195-195.
On May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1 R. 196-199), ordering the Wife to provide specific delineated missing discovery material to the Husband’s counsel. After numerous warnings, the Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety”. This Order was not objected to by Wife’s counsel.
On May 14, 2012, the Wife, in an attempt to circumvent the Court’s prior Order on the Husband’s Motion for Contempt, filed a Motion for Protective Order (2 R. 208-218), in a transparent attempt to block standard discovery information already ordered by the Court to be provided to Former Husband. Counsel for the Former Wife and counsel for the Former Husband entered into an Agreed Order on Wife’s Motion for Protective Order, whereby the Former Wife agreed that she would provide her home address to the Former Husband’s counsel, but Former Husband’s counsel could not disclose the Former Wife’s address to the Former Husband.
The Former Wife did not attend the court ordered deposition as ordered to by the Court, even though she was scheduled to appear in an office in the Washington, DC area, and the Former Husband was appearing in an office located in West Palm Beach, Florida. These locations had been coordinated by counsel for the parties. Former Wife’s counsel did not appear in person at the scheduled deposition, and instead called the deposition offices at the required time, informing the Former Husband’s counsel that her client refused to attend the deposition as ordered.
On May 24, 2012, the Husband filed a Motion to Strike Wife’s Pleadings Based on Wife’s Refusal to Comply with Order on Husband’s Motion for Contempt, and Wife’s Refusal to Attend Court Ordered Deposition. Wife’s counsel filed a “Motion In Opposing of Motion to Strike” (sic). 2 R. 243-245.
On May 29, 2012, after a hearing with counsel for both parties present, the Court stated, “Well, it’s not really an extreme remedy, because that’s what I said I was going to do without strict compliance with the prior order, particularly with the deposition. And if I recall, we had a long discussion about getting that set up. We talked about doing it on a Saturday to accommodate her and a temporary job that I believe she had. It’s a video deposition. It’s not like she’s live in the room with somebody. So I’m going to grant his motion and strike her pleadings.” 3 TR. Pg. 4, L. 18 – pg. 5. L.2. The Court issued an Order granting the Husband’s Motion to Strike Wife’s Pleadings (2R. 241-242), stating “The Wife acted and continues to act in a deliberate, willful, and contumacious manner, whereby she continues to act in defiance and disobedience of numerous orders issued by this court.” The Court struck all of the Wife’s pleadings, including but not limited to her Counter-Petition for Dissolution of Marriage, and Wife’s Motion for Temporary Relief, and ordered Wife to pay Husband’s attorney’s fees and costs incurred by the necessity of bringing the action.
In fact, sanctions Under Fla.R. Civ.P.Rule 1.380(b)(2) were contemplated specifically for cases of this nature…where a party continuously and deliberately refuses to obey an order of the court. Former Wife, argues that the striking of a party’s pleadings as a sanction for discovery misconduct is “the most severe of penalties and must be employed only in extreme circumstances,” Poling v. Palm Coast Abstract & Title, Inc. 357 So. 2d 464 (Fla. 2nd DCA 1978), and as such, should not have been stricken. This case is one of those extreme circumstances, whereby based on the deliberate, willful, and contumacious manner of the Former Wife, and her acting in defiance and disobedience of numerous orders issued by the court, the sanction was clearly appropriate. Former Wife argues in Ham v. Dunmire, 891 So. 2d 492 (Fla. Supreme Court 2004), that the severity of the sanction must be commensurate with the violation. The Former Wife’s absolute refusal to comply with court orders to provide standard discovery, and refusal to attend her deposition as ordered, severely prejudiced the Former Husband, particularly when the Former Wife was seeking remedies including equitable distribution and temporary and permanent spousal support. The lower tribunal deemed that the sanction was clearly appropriate under the circumstances.
Appellant argues that under Kelly v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993) the Court’s authority to sanction is not unbridled and must be commensurate with the offense if numerous, less onerous sanctions are available. There simply were no less onerous sanctions available…the fact is the Former Wife simply refused to comply with discovery obligations, after receiving order after order from the Court. The Former Wife states that striking her Motion for Temporary Relief would have been appropriate. This case was set for trial on June 18, 2012. In a bizarre move, counsel for the Former Wife set a Temporary Relief hearing for June 1, 2012, which was barely two weeks prior to trial. Striking a temporary relief hearing as such a late date only two weeks prior to trial, would have absolutely no effect on the Former Wife, and would not act as any type of sanction against her.
Although the Former Wife, in her Amended Initial Brief complains that “the trial court was obviously frustrated with the number of times it had to intervene as a result of Husband filing motion after motion,” and that the “Husband had still not fully complied with discovery,” it is clear from the record that the Former Wife was acting in a deliberate, willful, and contumacious manner, acting in defiance and disobedience of numerous orders issued by this court. In fact, the trial court was not frustrated with the Husband…the Court was obviously frustrated with the Wife’s continued efforts to interfere with providing mandatory required discovery to the Husband. It is also clear from the record that the Former Husband had no outstanding discovery requests, no outstanding orders on any motions to compel, and no findings of contempt against him.
The Former Wife argues in her Section (2) that she was in substantial compliance with discovery. The record is clear that she was not in compliance with discovery on any level. In reviewing the Husband’s Motion to Strike (2 R. 226-240), there were numerous discovery materials which were specifically not provided by the Wife. The Wife refused to give any information regarding her assets, her residence, where she worked, what she earned, what her living expenses were…all while making claims for equitable distribution and temporary and permanent support from the Husband. Most importantly, she simply refused to submit to deposition, even after the Court and the Former Husband went to great lengths and expense to accommodate her.
Next, in the Former Wife’s Section (3) she argues that she did not have the opportunity to be heard at the hearing on the Former Husband’s Motion to Strike Wife’s Pleadings Based on Wife’s Refusal to Comply with Order on Husband’s Motion for Contempt, and Wife’s Refusal to Attend Court Ordered Deposition for Sanctions and Striking her pleadings. The hearing was duly noticed and was indeed attended by Wife’s counsel. The Court addressed this argument and stated, “Well, it’s not really an extreme remedy, because that’s what I said I was going to do without strict compliance with the prior order, particularly with the deposition. And if I recall, we had a long discussion about getting that set up. We talked about doing it on a Saturday to accommodate her and a temporary job that I believe she had. It’s a video deposition. It’s not like she’s live in the room with somebody. So I’m going to grant his motion and strike her pleadings.” 3 TR. Pg. 4 L. 18 – P. 5 L. 2. There was no objection to the prior order by counsel, so the Court was well within its authority to strike the Wife’s pleadings.
In Former Wife’s Section (4), she now argues that the discovery records that she was ordered to provide were not in her possession or control. This is nowhere in the record. The Former Wife is attempting to use her appeal to continue arguing her case. Nowhere in the record does it indicate that the Former Wife filed any response indicating any records were not in her possession or control. She simply refused to provide the records as ordered.
The Former Wife in her Section (5) argues that her counsel was only minutes late in transmitting a set of disclosures, pursuant to the trial court’s order. The Former Wife omits the fact that the few items she did transmit, were insufficient, incomplete, and that she continued to omit material discovery materials as she was previously ordered to by the court. Again, the Wife did not comply with the Court’s order to provide discovery.
The Former Wife in her paragraph (6) argues that “the trial court was silent in regards to the penalty to be imposed if the Wife failed to appear at the deposition.” Under Fla.R. Civ.P.Rule 1.380(b)(2) If a party…fails to obey an order to provide or permit discovery…the court in which the action is pending may make any of the following orders:…(C) An order striking out pleadings or parts of them…or rendering a judgment by default against the disobedient party.” There is no provision in the rule, that the court must specifically warn a party of the available sanction which may be imposed. This is a moot point anyway. In this instance, the Former Wife was well aware of the Court’s impatience with her. After numerous warnings, the Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety.” 1 R. 196-199 In fact, the Former Wife was duly warned by the court that her continued disobedience to court orders would result in the striking of her pleadings. The Wife did not object or appeal to the Court’s order.
