William H. Stolberg, PA

A divorce is an intensely personal and private life experience, and nothing is truer than the age old adage that "criminal lawyers see bad people at their best and divorce lawyers see good people at their worst." Few people want their private lives aired in the public realm, and the problem of protecting litigants (and their families) from untoward exposure takes on added dimensions if the client enjoys high public recognition. It only takes a brief jaunt through the checkout line at the supermarket to see how even the most insignificant happenings in the lives of public persons can be exploited by the highly profitable tabloid press. Even when parties are unknowns, the dissolutions action itself, because of peculiar legal issues or a human interest slant, may generate novel grist for the public mill, and subject ordinary clients to 15 highly undesirable minute of Andy Warhol fame. Public image and community reputation have value for persons at all levels; the airing of private relationships and finances can have devastating effects on clients' lives.

While this article is directed at closing off dissolutions files and proceedings for high-profile individuals, the concept has personal significance for everyone. The average business person can suffer difficulties by having financial or trade information open to public scrutiny. The children of famous divorcing couples may be subject to traumatizing attentions from the media, while the children of the less famous may simply need to be protected from inflammatory pleadings or vitriolic testimony that lingers on as part of the court record long after the parties have gone their separate ways.

Although some states provide special protection for litigants undergoing the dissolution process, Florida has specifically rejected the notion that they should receive special consideration. However, the First District held in Peyton v. Browning, 541 So. 2d 1341 (Fla. 1st DCA 1989), that there is a privacy interest inherent in individual financial affairs, and the bench is obligated to be sensitive to and protective of disclose of them. The Florida Supreme Court stated almost 30 years ago: "There are no doubt many instances in which a court should exercise its power to protect a party against an unwarranted disclosure of the details of his financial holdings."

Initial Pleadings
Although Florida constitutionally guarantees its citizens a right of privacy, that right is not to be construed as limiting the public's right of access to public records and meetings. Under the Public Records Act, and under Florida Constitution Art. I 24, Access to Public Record and Meetings, any evidence of documents becoming part of the court file are public records open for personal inspection by any person.

In the initial stages of dissolution litigation, certain disclosures are mandated by statue. F.S. 61.30 requires the filing of a financial affidavit with the petition as well as with the answer if certain kinds of relief are sought. However, the case law has not supported the position of sanctions for failure to comply with this provision; quite to the contrary, the courts have even upheld a temporary relief award where no affidavit was filed.

Florida Rule of Civil Procedure 1.611 specifically provides that financial affidavits and any other financial information may be sealed at the request of either party. The rule was used to protect against public disclose in two reported dissolutions cases: Sonderling v. Sonderling, 600 So. 2d 1285 (Fla. 3d DCA 1992) (Trial court properly sealed marital settlement agreement containing financial information at request of parties), and Peyton v. Browning, 541 So. 2d 1341 (Fla. 1st DCA 1989) (Third party could not access financial information where previously sealed at request of party). Peyton goes on to point out that particular provision of the rule was "designed to advance public policy to protect personal financial matters form unnecessary public disclosure."

The protection granted by the rule may be illusory since the financial affidavit will inevitably be offered into evidence or used for impeachment purposes in later proceedings unless the case is settled.

The bench has express judicial authority to limit public access to court records under Judicial Rule of Administration 2.051.

Properly sealed court records lose their characteristic as public records. However, it is worth nothing that in the case of Reiter v. Mason, 563 So. 2d 749 (Fla. 3d DCA 1990) (a paternity case involving eh comedian Jackie Mason), the trial court was held to have erred in extending a "gag" order beyond the conclusion of the case, and erred in sealing the court file where the file was already a matter of public record. In a more recent child dependency case, the trial court attempted to place constrictions on the television showing of a videotaped interview with the mother of the children, and reversed in part because the children's full names had already been publicly disseminated through the court file.

Discovery

Litigants working together can plan the course of discovery to maximize privacy. In civil cases, only those discovery materials actually filed are deemed public records subject to access by the public. Deposition transcripts, therefore, that remain unfilled are protected. Interrogatories and their answers (including the financial affidavit) are not required to be filed with the court.

Florida Rule of Civil Procedure 1.280(c) provides for sealing or nondisclosure of documents or information to protect from annoyance, embarrassment, oppression, undue burden, and other good cause. The rule is generally used in adversarial fashion as between the parties; however, an agreed order under this rule is likely to withstand third party challenge under the public policy articulated in Peyton and Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). The rule specifically provides that discovery be conducted with only certain persons permitted to participate; that a deposition after sealing be opened only upon court order; that trade secrets not be disclosed; and that certain documents may be filed in sealed envelopes to be opened only as directed by the court.

What about the attendance of third parties (public or press) at the taking of a deposition? The Florida Supreme Court held in Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987), that the press does not have a qualified right to attend depositions or obtain copies of unfilled deposition transcripts in either civil or criminal proceedings, although distinguishing between pretrial discovery and actual court proceedings. "Deposition proceedings are not public components of a trial unless made so by the parties." Accordingly, where privacy is sought, the parties should cooperate in not filing documents intended to be kept private, and should agree to bar nonparties from all discovery proceedings. Finally, Florida Rule of Civil Procedure 1.300(c) provides that, upon stipulation by the parties, depositions may be taken before any person, at any time or place upon any notice, and in any manner. There is nothing in the rules requiring transcription of deposition testimony, and nothing to prevent parties from agreeing that the reporter should destroy notes.

Trial

The trial of family law cases is much more troublesome. Even if both parties are in agreement that the proceeding should be closed, there is no entitlement to do so.

This issue was raised in the highly publicized case of Baron v. Florida Freedom Newspapers, Inc., involving then-chair of the Florida Senate Rules Committee Dempsey Barron. Barron attempted to seal medical information that he claimed would adversely affect his financial situation.


The trial court sealed the entire file on Barron?s motion; portions of the final judgment were sealed as well. The press challenged closure and Barron argued that he had a fundamental statutory and constitutional right of privacy that supported closure.

The Supreme Court held that closure was not justified, that the husband's reasons for sealing he file did not reach the level required and further held that dissolutions cases are not distinguishable from other civil proceedings and deserve no special consideration.

The Barron court set forth the following principles which govern closure of both records and proceedings in cases.

Both civil and criminal court proceedings are public events and there is a common law right of access to court proceedings and records. Exceptions may be made to promote preservation of order in the courtroom, or based upon the content of the information sought to be protected.

Any closure order must be drawn with particularity and narrowly applied. There must be a determination that no reasonable alternative to closure exists, and the court must choose the least restrictive measure possible.

The court must consider and weight the strong presumption of openness for both proceedings and records. The public and news media both have standing to challenge closure, with the burden being on those seeking closure at both the trial and appellate levels. The presumption of openness continues thought the appellate process.


Closure is justified only when necessary to comply with public policy as reflected in the Florida Constitution, statues, rules, and case law to protect trade secrets, to protect a compelling government interest, to obtain evidence to properly determine legal issues, to avoid substantial injury to innocent third parties, or to avoid substantial injury to a party by disclosure of matters protected by common law or privacy right not inherent in the specific type of civil proceeding sought to be close.

A fairly common consideration in domestic cases is whether there is sufficient predictable injury to a minor child to warrant closure under Barron?s "innocent third party" element. Two incidents of injury are foreseeable. The first is the immediate distress, embarrassment, and annoyance that may result while the case is under way, particularly when the media follows every step taken by the family, both in and out of the court. The second is the long-term after-shock, where the child may for many years suffer notoriety conferred by public exposure of the parents' acrimony, or where the child in later years reviews the open court file, replete with overblown and spiteful allegations, psychiatric and guardian reports, and other sensitive material.

A side issue frequently raised in high-profile cases is whether the press must have prior notice of any hearing to close proceedings. There appears to be no requirement set forth in Florida statue, rule, or case law that he press be given prior notice to the press part of its analysis. Two pre-Barron court cases, one of which was cited by approval by the Barron court, held that failure to give prior notice to the press in civil closure cases was not an abuse of discretion or error. The rule in criminal cases is to the contrary, and a rule change in civil cases may occur if the issue is brought before the appellate courts in a strong case.

Settlement Agreements and Final Judgment

When an agreement has been reached, can the parties avoid public exposure of the terms?

There is no requirement that the agreement itself be made part of the record. The parties may stipulate that the settlement agreement not be filed, and that it be incorporated in the bar-bones final judgment by reference only, pursuant to Florida Rule of Judicial Administration 2.075(a) and Florida Rule of Civil Procedure 1.4500(c). The marital settlement should be introduced and received into evidence by the court, who is able to review and ratify the agreement (as its obligated to do where minor children are an issue); the court retains jurisdiction to enforce the terms of the agreement. The parties should recite in the final judgment that the duplicate original exhibits are returned to the parties and are not required to be retained in the court file.

Matrimonial lawyers should discuss privacy issues with the client before filing, and should consider filing a motion to seal with the initial pleadings, particularly when financial affidavits are required with the initial filing. Equally important, these issues should be discussed with opposing counsel immediately, and both sides should cooperate in filing joint motions with agreed orders to the greatest extent possible. Cooperation between the attorneys and parties may save both the parties and their families much anguish as well as their good names.

William H. Stolberg is a partner in the Fort Lauderdale law firm of Stolberg and Pence. He practices solely in the area of family law. He is Florida board certified in marital and family law, and is a member of the American Academy of Matrimonial Lawyers. Mr. Stolberg received his B.S. from Cornell University in 1968 and his J.D. from the University of Florida College of Law in 1973.

Kyle D. Pence is a partner in the law firm of Stolberg and Pence in Fort Lauderdale. He practices solely in the area of family law. Mr. Pence received his B.A. from Northwestern University in 1975 and his J.D. from Nova University in 1986. Mr. Pence is a member of the Family Law Section of the Broward County Bar Association.