122 So. 3d 496
Fla. Dist. Ct. App.2013Background
- Millen married in 2003 in London; later resided in Florida and separated by 2010.
- Husband filed for divorce on September 9, 2010; dissolution trial began July 16, 2012.
- Guardian ad litem (GAL) sought permission to question witnesses; both parties did not object.
- GAL questioned six witnesses; questions mirrored wife’s questions and elicited similar testimony.
- Trial court allowed GAL to participate; husband appealed, arguing GAL’s participation was unlawful.
- Court held GAL’s examination violated statutes, but the error was not fundamental and the appeal was waived by failure to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GAL’s questioning at trial violated law. | Millen: GAL’s questioning constitutes the practice of law and unauthorized. | Millen: GAL’s participation is permissible as part of guardian’s role in fact-finding. | No reversible error; error not fundamental; allowed but non-prejudicial. |
| Whether failure to object below waives the issue on appeal. | Millen: Objection should have preserved the error for appellate review. | Millen: Waiver applies absent objection unless fundamental error. | Waiver applied; issue not reviewed for fundamental error. |
| Whether the error constitutes fundamental error affecting the case. | Millen: GAL’s questioning went to the core of the case and warrants reversal. | Millen: Even if improper, not fundamental; testimony was redundant and non-prejudicial. | Not fundamental error; no reversal. |
| Whether the final judgment should be affirmed despite the GAL issue. | Millen: Trial error requires reversal and remand. | Millen: Absence of objection and lack of proven harm support affirmance. | Affirmed. |
Key Cases Cited
- Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1992) (pro se standard not lower than competent attorney)
- Steinhorst v. State, 412 So.2d 332 (Fla.1982) (failure to object not reviewed unless fundamental error)
- Ray v. State, 403 So.2d 956 (Fla.1981) (opportunity to cure and failure to object undermines reversible error)
- Sanford v. Rubin, 237 So.2d 134 (Fla.1970) (fundamental error standard; impact on merits)
- Marks v. Delcastillo, 386 So.2d 1259 (Fla.3d DCA 1980) (non-fundamental error; substantial similarity of testimony)
- Perez v. Perez, 769 So.2d 389 (Fla.3d DCA 1999) (guardian ad litem proceedings; limitations on practice)
- State v. Foster, 674 So.2d 747 (Fla.1st DCA 1996) (taking of deposition constitutes practice of law)