Michelle Saenz v. Roberto Sanchez

• Court: District Court of Appeal of Florida
• Decided: October 18, 2023
• Docket: 2023-1402
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 18, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1402 Lower Tribunal No. 19-11545 ________________

Michelle Saenz, Petitioner,

vs.

Roberto Sanchez, Respondent.

A Case of Original Jurisdiction - Mandamus

Nedelman Legal Group PLLC, Michael A. Nedelman (Delray Beach), Margules Law Group, P.A., and Leon R. Margules (Plantation), for petitioner.

Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for respondent.

Before FERNANDEZ, MILLER, and LOBREE, JJ.

MILLER, J. Petitioner, Michelle Saenz, the mother, seeks a writ of certiorari to

quash a nonfinal order denying her emergency motion for appointment of an

attorney ad litem for her minor son, B.M.S. In this proceeding, she contends

the trial court has erroneously concluded it lacks jurisdiction to consider the

merits of the motion. We treat this cause as a petition for writ of mandamus

and grant relief. See Fla. R. App. P. 9.040.

BACKGROUND

The facts require little elaboration. This dispute traces its origins to a

contested series of orders rendered by the predecessor judge. In those

orders, the court required the parents to immediately enroll B.M.S. in military

boarding school in Georgia, barred both parents from contacting B.M.S. or

the school, directed the guardian ad litem to file a police report against

B.M.S., suspended the mother’s timesharing, granted the father full custody

of the two younger children, and prohibited the mother from contacting the

two younger children. This court reversed the orders on interlocutory appeal.

See Saenz v. Sanchez, 48 Fla. L.Weekly D798 (Fla. 3d DCA Apr. 19, 2023).

Upon remand, a newly assigned judge convened a hearing and issued

an order mirroring most of the predecessor judge’s directives. This order is

the subject of a pending appeal. In that appeal, the mother contends the

lower tribunal misapprehended our mandate and violated her due process

2 rights by modifying timesharing in the absence of an outstanding motion and

conflating the burden of proof.1

The mother has since moved for the emergency appointment of an

attorney ad litem on behalf of B.M.S. In support of her motion, she has

alleged, among other grounds, that B.M.S. has been subject to maltreatment

and emotional abuse and a younger sibling has suffered physical abuse at

the hands of the father. Citing a lack of jurisdiction, the trial court has

declined to hear the merits of the motion.

STANDARD OF REVIEW

“This [c]ourt’s jurisdiction includes issuance of writs of mandamus.” SR

Acquisitions-Fla. City, LLC v. San Remo Homes at Fla. City, LLC, 78 So. 3d

636, 638 (Fla. 3d DCA 2011); see also Fla. R. App. P. 9.030(b)(3).

“[M]andamus will lie to compel a court to exercise its lawful jurisdiction where

it refuses to do so, [but] it cannot be maintained to correct alleged errors in

rendering a judgment where there is an adequate remedy by writ of error.”

State v. Petteway, 117 So. 696, 696 (Fla. 1928).

ANALYSIS

The resolution of this proceeding turns on whether the lower tribunal

retains jurisdiction to consider the mother’s motion. Florida Rule of Appellate

1 The appeal in 3D23-1018 is not yet ripe for resolution.

3 Procedure 9.130(f) clearly states, and the case law confirms, “[i]n the

absence of a stay, during the pendency of a review of a nonfinal order, the

lower tribunal may proceed with all matters, including trial or final hearing.”

Id. The only exception is that the lower tribunal “may not render a final order

disposing of the cause pending such review.” Id. The rule is purposed to

preclude “the trial court from interfering with the appellate court’s jurisdiction

by, for example, entering a judgment or directly modifying the order on

appeal.” Garrison v. Vance, 103 So. 3d 1041, 1042 (Fla. 1st DCA 2013). It

does not preclude the trial court from considering matters that are not

intertwined with the appeal.

Against these principles, we examine the case at hand. Because this

court previously denied a motion to stay filed in conjunction with the pending

appeal, the trial court is authorized to proceed with all other matters. The

issues raised in the pending appeal are purely legal in nature and do not

overlap with the subject of the mother’s motion. Consequently, the trial court

will not exceed its jurisdiction in ruling on the propriety of appointing an

attorney for B.M.S.

Accordingly, we direct the court to convene a hearing on the motion.

Confident the hearing will be duly conducted, we withhold formal issuance of

the writ at this time.

4 Petition granted. Writ withheld.