In Re: Amendments to Florida Family Law Rule of Procedure 12.510

Supreme Court of Florida
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No. SC21-966
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IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULE OF
PROCEDURE 12.510.

February 10, 2022

PER CURIAM.

In July 2021, the Court amended Florida Family Law Rule of

Procedure 12.510 (Summary Judgment) to “incorporate into the

family law rules our recent changes to Florida Rule of Civil

Procedure 1.510 (Summary Judgment).” In re Amends. to Fla. Fam.

L. Rule of Proc. 12.510, 321 So. 3d 692, 692 (Fla. 2021). We had

amended rule 1.510 to adopt almost all the text of Federal Rule of

Civil Procedure 56 and to align Florida’s summary judgment

standard with the federal standard. See In re Amends. to Fla. Rule

of Civil Proc. 1.510, 317 So. 3d 72 (Fla. 2021).

The amendments to rule 12.510 became effective immediately;

however, because they were not published for comment before being

adopted, interested persons were invited to file comments with the
Court. Both The Florida Bar’s Family Law Section and The Florida

Bar’s Family Law Rules Committee (Committee) filed comments,

and the Committee appeared at the subsequent oral argument.

Having considered the comments and oral argument, we now

further amend rule 12.510. 1 First, we amend subdivision (a)

(Motion for Summary Judgment or Partial Summary Judgment) to

require a detailed explanation for pro se parties of the need to

respond to a summary judgment motion. Next, we amend

subdivision (b) (Time to File) to provide that no motion for summary

judgment may be filed while the movant’s responses to mandatory

disclosures are pending.

Accordingly, the Florida Family Law Rules of Procedure are

amended as reflected in the appendix to this opinion. New

language is indicated by underscoring. The amendments shall

become effective immediately upon the issuance of this opinion.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(d).

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THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

LABARGA, J., dissenting.

In late 2020, the majority, on its own motion, amended Florida

Rule of Civil Procedure 1.510 to align Florida’s summary judgment

standard in civil cases with the federal standard. See In re Amends.

to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192 (Fla. 2020). Later, in

In re Amendments to Florida Family Law Rule of Procedure 12.510,

321 So. 3d 692, 692 (Fla. 2021), the majority, on its own motion,

similarly aligned Florida’s family law summary judgment standard

with the federal standard. Because the amendment was not

published previously, interested persons were invited to file

comments after the opinion’s release. Two comments were filed,

one from the Family Law Section of The Florida Bar supporting the

amendment, and another from the Family Law Rules Committee of

The Florida Bar opposing it.

Today, after due consideration of the comments received and

the arguments presented during oral argument on December 7,

2021, the majority amends Florida Family Law Rule of Procedure

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12.510 to align Florida’s summary judgment standard in family law

cases with the federal standard. I respectfully dissent.

I agree with the comment submitted in opposition by the

Family Law Rules Committee of The Florida Bar (Committee), which

appropriately emphasizes the unique context of family law cases.

Because of this unique context, and the carefully crafted procedural

and statutory requirements that apply to it, the federal summary

judgment standard is not a good fit.

Particularly noteworthy is the impractical burden of the

twenty-day summary judgment standard on the process of

discovery in family law cases. Under rule 12.285(f), Florida Family

Law Rules of Procedure, parties have a continuing duty of

disclosure: “Parties have a continuing duty to supplement

documents described in this rule, including financial affidavits,

whenever a material change in their financial status occurs.” While

it is true that this twenty-day standard was a part of the prior rule,

as noted during oral argument by counsel for the Committee, that

standard is rarely used by family law practitioners because the

continuing duty to supplement discovery imposed by family law rule

12.285(f) renders the procedure unworkable. Fla. Sup. Ct. Gavel to
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Gavel Video Portal, In re Amends. to Fam. Law Rule of Proc. 12.510,

at 20:52 (Dec. 7, 2021),

https://wfsu.org/gavel2gavel/viewcase.php?eid=2784.

In fact, the inclusion of the new language in rule 12.510(b)—

prohibiting the filing of motions for summary judgment while a

movant’s mandatory disclosures are pending—only serves to

demonstrate the ineffectiveness of the twenty-day standard. The

purpose of a motion for summary judgment is, where appropriate,

to facilitate the prompt resolution of issues. However, that goal is

largely unattainable in family law cases because of the ongoing

nature of discovery. In these cases, discovery frequently continues

up to the point of (and sometimes during) trial. The utility of

summary judgment is minimized where—as is often true in family

law cases—changing circumstances necessitate a prolonged period

of discovery. Thus, today’s adoption of the federal standard

reaffirms a procedural burden that has not proven itself effective

and that demonstrates the poor fit between summary judgment and

the practice of family law.

Moreover, of great concern is the sensitive question of child

custody. As noted by the Committee in its comment, “[t]he possible
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penalties for failing to respond to a motion for summary judgment

are akin to the entry of a default judgment. However, adjudication

on the merits is favored in family law, especially as it relates to

children’s issues.” Comments of the Family Law Rules Committee

at 4. The Committee added:

This is because it has been held that “the ‘best interest of
the child’ standard precludes a determination of child
custody based on a parent’s default.” Armstrong v.
Panzarino, 812 So. 2d 512, 514 (Fla. 4th DCA 2002); see
also Leslie v. Gray-Leslie, 187 So. 3d 380, 381 (Fla. 5th
DCA 2016) (“[I]t is generally improper in a dissolution of
marriage action to determine issues regarding the care
and custody of minor children by entry of a default
because the best interests of the children are the
paramount consideration.”). Given that adjudication on
the merits is favored, the Committee is not in favor of
creating another venue by which the equivalent of a
default may be entered, especially because the summary
judgment rule would require a particularized response.

Id.

Thus, the federal standard adopted by the majority will be in

tension with Florida’s well-settled “best interests of the child”

standard, which requires substantial factual findings and weighing

of statutory factors and precludes a determination of child custody

based on a parent’s default. This tension with well-established

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Florida child custody law should, on its own, be a sufficient reason

to reject the federal standard in family cases.

These concerns are exacerbated by the disproportionate

number of pro se parties involved in family law cases, particularly

in child custody matters. It is not unusual for family law judges to

preside over cases with emotionally charged issues such as child

support, visitation, alimony, division of matrimonial assets and

liabilities, and many other issues with complications unique to

family divisions, where one side is represented by counsel while the

other side is not. As aptly observed by the Committee:

It is a constant challenge for individual judges and
the judicial system to ensure that pro se parties are
afforded reasonable latitude in presenting their cases
while still obligating them to the same rules applicable to
represented parties. The rule, as drafted, imposes
complex burdens and furthers the divide between pro se
parties and represented parties as it relates to access to
justice and adjudication of issues on the merits. This
potential inequity is exacerbated by perceived ambiguity
within the amended rule.

Id.

Given the complex burdens the adopted federal standard will

impose, it is doubtful that even a well-intentioned warning will be of

assistance.

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For these reasons, I dissent to the majority’s decision to apply

the federal summary judgment standard in family law cases.

However, given the fact that the majority has adopted the

federal standard, I support the alternative amendments to rule

12.510 proposed by the Committee in its comment. Id. at 5-10.

Original Proceeding – Florida Family Law Rules of Procedure

Heather L. Apicella, Chair, Family Law Section of The Florida Bar,
Boca Raton, Florida, Kristin R.H. Kirkner, Co-Chair, Rules and
Forms Committee, Family Law Section of The Florida Bar, Tampa,
Florida, and Jack A. Moring, Co-Chair, Rules and Forms
Committee, Family Law Section of The Florida Bar, Crystal River,
Florida, Ashley Elizabeth Taylor, Chair, Family Law Rules
Committee, Tampa, Florida, Joshua E. Doyle, Executive Director,
and Mikalla Andies Davis, Staff Liaison, The Florida Bar,
Tallahassee, Florida,

Responding with comments

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APPENDIX

Rule 12.510 Summary Judgment

(a) Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment, identifying
each claim or defense—or the part of each claim or defense—on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court shall state on the record
the reasons for granting or denying the motion. The summary
judgment standard provided for in this rule shall be construed and
applied in accordance with the federal summary judgment
standard.

A motion for summary judgment and the notice setting
hearing must contain the following statement in all capital letters
and in the same size type, or larger, as the type the remainder of
the motion:

A RESPONSE TO THE MOTION FOR SUMMARY
JUDGMENT MUST BE MADE IN WRITING, FILED WITH
THE COURT, AND SERVED ON THE OTHER PARTY NO
LESS THAN TWENTY DAYS PRIOR TO THE HEARING
DATE. YOUR RESPONSE MUST INCLUDE YOUR
SUPPORTING FACTUAL POSITION. IF YOU FAIL TO
RESPOND, THE COURT MAY ENTER ORDERS
GRANTING THE SUMMARY JUDGMENT OR FINDING
FACTS TO BE UNDISPUTED.

(b) Time to File a Motion. A party may move for summary
judgment at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for
summary judgment by the adverse party. However, no motion for
summary judgment may be filed while the movant’s responses to
mandatory disclosures are pending. The movant must serve the
motion for summary judgment at least 40 days before the time fixed
for the hearing.
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(c) – (h) [No Change]

Commentary

[No Change]

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