Opinion
Case No. 5D20-230
01-28-2022
Sarah SAARIO, Appellant, v. Patrick TILLER, Tiller and Sheets, LLC, TS Accounting Bridge, LLC and Rush Commercial Cleaning, LLC, Appellees.
Richard P. Spence, of The Spence Law Firm, PLLC, Orlando, for Appellant. Martin A. Pedata, of Martin Pedata, P.A., Deland, for Appellees.
Richard P. Spence, of The Spence Law Firm, PLLC, Orlando, for Appellant.
Martin A. Pedata, of Martin Pedata, P.A., Deland, for Appellees.
LAMBERT, C.J.,
Sarah Saario ("Former Wife") appeals the final judgment entered after trial dissolving her approximately four-and-one-half-year marriage to Patrick Tiller ("Former Husband"). She raises several grounds for reversal of the judgment, primarily related to the trial court's distribution of the parties’ marital property and debt and the denial of her request for alimony. Former Wife also challenges that aspect of the final judgment granting Former Husband's exceptions to a general magistrate's report issued after an evidentiary hearing in which the magistrate recommended that Former Wife be awarded temporary attorney's fees and that Former Husband be found in willful contempt regarding his failure to comply with a temporary support order. We affirm.
The parties also have two minor children from their marriage. All issues regarding their time-sharing and respective parental responsibilities for these children were resolved by an agreed-upon Parenting Plan that was incorporated into the final judgment.
We begin by briefly addressing two other arguments made by Former Wife that are directed towards procedural matters. First, we conclude, without further elaboration, that the trial court did not abuse its discretion in denying Former Wife's motion to continue the trial. See Peiman v. Peiman , 829 So. 2d 307, 309 (Fla. 5th DCA 2002) ("This court will not disturb the trial court's denial of [a] request for continuance unless [the moving party] establishes that the denial constituted an abuse of discretion." (citations omitted)). Second, Former Wife, citing to the Florida Supreme Court's opinion in Perlow v. Berg-Perlow , 875 So. 2d 383, 390 (Fla. 2004), argues that the trial court erred by adopting Former Husband's one-page proposed equitable distribution worksheet into its final judgment. We disagree. Perlow did not hold that a trial court's verbatim entry of a proposed final judgment submitted by a party is per se improper. As the court later explained in Strand v. Escambia County , 992 So. 2d 150, 155 (Fla. 2008), what it found to be improper in Perlow was the trial court's almost-immediate verbatim adoption of a lengthy proposed final judgment submitted by one of the parties, without taking sufficient time to independently consider the judgment, and without allowing the opposing party an opportunity to object and submit his own proposed judgment.
In contrast, the parties here, through their counsel, were permitted to submit to the trial court written closing arguments as well as proposed final judgments, which they each did. The court then prepared its own final judgment, which admittedly incorporated Former Husband's equitable distribution worksheet. The final judgment, however, was rendered approximately two months after the parties’ proposed final judgments and worksheets had been submitted to the trial court for consideration. Thus, unlike in Perlow , Former Wife had ample opportunity to raise any objections that she may have had to Former Husband's proposed equitable distribution worksheet.
We next turn to the alleged errors that Former Wife asserts were committed by the trial court in the final judgment, beginning with its equitable distribution of the parties’ marital assets and liabilities.
EQUITABLE DISTRIBUTION
Former Wife argues that the trial court failed to make adequate findings of fact in its distribution of the parties’ assets and liabilities as required under section 61.075, Florida Statutes (2019), and that its distribution of the assets was "unequal." Our standard of review on this issue is abuse of discretion. See Coleman v. Bland , 187 So. 3d 298, 299 (Fla. 5th DCA 2016) ("The standard of review of a trial court's determination of equitable distribution is abuse of discretion." (quoting Bardowell v. Bardowell , 975 So. 2d 628, 629 (Fla. 4th DCA 2008) )).
The trial court's equitable distribution worksheet identified, placed values on, and distributed both the marital and nonmarital assets and liabilities of the parties. A description of the assets and liabilities distributed is unnecessary to our resolution because Former Wife waived any argument that the trial court erred in its equitable distribution as she did not sufficiently elaborate in her initial brief as to how the trial court's distribution of the marital assets and debts was "unequal" or where the values that the court placed on these assets and debts were not supported by competent substantial evidence. See Coolen v. State , 696 So. 2d 738, 742 n.2 (Fla. 1997) (noting that an appellant's "failure to fully brief and argue [claims mentioned in his or her brief] constitutes a waiver of these claims"). Additionally, Former Wife did not preserve this issue for review by moving for a rehearing below or by otherwise bringing to the trial court's attention any alleged insufficiency in the court's factual findings in the final judgment. See Hedstrom v. Hedstrom , 123 So. 3d 150, 152 n.4 (Fla. 5th DCA 2013) (citing Mathieu v. Mathieu , 877 So. 2d 740, 741 (Fla. 5th DCA 2004) ).
Former Wife also contends that the trial court erred in its equitable distribution of the marital assets by failing to address or distribute Former Husband's purported interest in the following three business entities: Tiller and Sheets, LLC; TS Accounting Bridge, LLC; and Rush Commercial Cleaning, LLC. However, in response to the trial court's inquiry during opening statements as to whether she was seeking an equitable distribution of any of the businesses, Former Wife responded that she would not be pursuing any interest in them as Former Husband had apparently "dissolved" these entities. Additionally, in her written closing argument to the trial court, Former Wife did not request that these businesses be made part of the court's equitable distribution of the marital assets. We therefore decline to consider this claim. See Broadfoot v. Broadfoot , 791 So. 2d 584, 585 (Fla. 3d DCA 2001) ("As a general rule, we decline to consider claims which were not presented in the first instance in the trial court.").
These three business entities are the co-appellees in this appeal.
ALIMONY
We next address Former Wife's arguments that the trial court erred in denying her request for an award of $3,200 per month in bridge-the-gap alimony. Our review of the trial court's denial of Former Wife's claim for alimony is under the abuse of discretion standard. See Smyth v. Smyth , 959 So. 2d 414, 415 (Fla. 1st DCA 2007) (recognizing that "[t]he standard of review [applicable to alimony decisions made by the trial court] is abuse of discretion" (citing Canakaris v. Canakaris , 382 So. 2d 1197, 1202 (Fla. 1980) )).
Section 61.08, Florida Statutes (2019), authorizes a trial court to award various forms of alimony. Under this statute, when deciding whether to award alimony, a trial court must first make a specific factual determination as to whether one party has an actual need for alimony and the other party has the ability to pay alimony. See § 61.08(2), Fla. Stat. If the court makes these two findings, then, in determining the proper amount and type of alimony, whether it be bridge-the-gap, rehabilitative, durational, or permanent, it must consider all relevant factors, including, but not limited to, those factors described in section 61.08(2)(a)-(j).
Former Wife argues that the trial court abused its discretion when it found in the final judgment that she did not have a need for alimony. She asserts that the trial evidence established her requisite need for alimony as she was the fulltime caregiver for the parties’ minor children with only occasional part-time gainful employment during the marriage, and that she did not have sufficient assets or income to be self-supporting. Former Wife primarily attributes the court's abuse of discretion in denying her alimony claim to the amount of income that it imputed to her.
The trial court received conflicting testimony from each party on Former Wife's alimony claim. In addition, Former Husband presented the testimony of a vocational expert as to Former Wife's present ability to earn a salary or income as a realtor, which was her premarital profession. The expert opined that real estate agent positions in the Central Florida area, with an annual income range of $50,000 to $120,000, were presently available and that Former Wife, with her college degree, prior full-time experience as a realtor in Miami, and part-time experience as a realtor locally, was suitably qualified to immediately begin working in this geographic area as a realtor.
In its final judgment, the trial court found Former Wife to be in "good physical and mental health" and "immediately self-supporting" but that she "chooses not to maximize her earning potential." To that end, the court wrote that although Former Wife's real estate license had been reinstated since 2013 (the first year of the marriage), she was voluntarily unemployed and had failed to exert a good faith effort to become gainfully employed as a fulltime real estate agent. The court then imputed an annual income of $51,554 to Former Wife, which, according to the trial testimony of Former Husband's expert, not only was in the low end of the range of income that he opined that Former Wife could immediately earn as a realtor, but was also the median income for a licensed real estate agent, according to the United States Census Bureau.
A trial court's decision on whether to impute income is reviewed for an abuse of discretion, while its determination of the amount of income to impute will be affirmed if supported by competent substantial evidence. Hudson-McCann v. McCann , 50 So. 3d 735, 737 (Fla. 5th DCA 2010) (citing Guard v. Guard , 993 So. 2d 1086, 1089 (Fla. 5th DCA 2008) ).
In her initial brief, Former Wife "concedes that the trial court should impute a full-time minimum wage to her." Resultingly, the issue framed before us is not whether the trial court should have imputed any income to Former Wife; instead, the question is whether the amount of the annual income that the court imputed to her was supported by competent substantial evidence presented at trial. See Hudson-McCann , 50 So. 3d at 737. Because Former Husband did present competent substantial evidence at trial, through his expert witness, that supports the trial court's imputation of annual income to Former Wife in the amount that it did, we affirm on this issue without further discussion.
Former Wife separately argues that the trial court abused its discretion in denying her claim for alimony when it failed to impute any income to Former Husband. The court found that Former Husband "[was] presently unemployed" but that he had a "gross [annual] income of approximately $96,211.00 per the parties’ 2018 tax return as a result of the dividends he receives from [his] premarital stock." Former Wife contends that, over and above Former Husband's dividend income, the trial evidence showed that Former Husband had been gainfully employed at various times during their marriage in businesses in which he had an ownership interest. Thus, Former Wife asserts that the trial court should have found that Former Husband was voluntarily unemployed and thereafter imputed, at the very least, a full-time minimum wage income to him.
We reject, without further discussion, Former Wife's separate argument that the trial court erred in determining Former Husband's income to be $96,211 instead of what Former Wife contends was his anticipated dividend income of approximately $105,000 for 2019, the year in which the trial was held.
We find it unnecessary to address this argument because Former Wife has failed to preserve this claim for review. Nowhere in Former Wife's written closing argument to the trial court did she contend or assert that, when determining her claim for alimony, the trial court should impute income to Former Husband. See Aills v. Boemi , 29 So. 3d 1105, 1109 (Fla. 2010) ("[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ " (quoting Chamberlain v. State , 881 So. 2d 1087, 1100 (Fla. 2004) )).
Having considered all other arguments raised by Former Wife, we conclude, without further discussion, that she has not shown that the trial court abused its discretion in denying her claim for alimony.
GENERAL MAGISTRATE'S REPORT AND RECOMMENDATION
Lastly, we address Former Wife's argument that the trial court erred because it applied an incorrect standard of review when, in the final judgment, it granted Former Husband's exceptions to the general magistrate's report and recommendation. We agree with Former Wife; but, as we explain, the error is harmless as to those matters determined by the trial court in the final judgment.
By way of background, not long after she filed her petition for dissolution of marriage, Former Wife moved for temporary relief. The parties subsequently entered into a "Mediated Settlement Agreement on Temporary Matters" that was incorporated into a temporary support order. This agreement was somewhat unique because, instead of providing that Former Husband would pay Former Wife a monthly, lump sum support payment, the parties agreed that Former Husband would pay directly to Former Wife or to the "provider" certain specified monthly expenses of Former Wife, including, but not limited to, the sum of $1,100 per month for her car payment and $400 per month towards her credit card bills.
Former Wife filed a motion for contempt alleging that Former Husband had willfully failed to pay his court-ordered temporary support obligations, despite having the present ability to do so. She also moved to calculate support arrearages and separately filed a motion seeking an award of temporary attorney's fees. Former Husband moved the trial court to modify his temporary support obligations. The court referred these motions to a general magistrate to hold an evidentiary hearing. Both parties appeared with counsel at the hearing, and each testified.
Two days after the conclusion of this hearing, the magistrate issued her report and recommendation. Pertinent here, she first recommended that Former Husband be held in willful contempt of court for nonpayment of that part of his monthly support obligations specifically related to Former Wife's car payment and her credit card obligation. The magistrate also found that Former Wife had established the need for temporary attorney's fees and that Former Husband had the ability to contribute towards these fees. She recommended that Former Husband be ordered to contribute the sum of $28,000 towards Former Wife's temporary attorney's fees.
Former Husband timely filed exceptions to the magistrate's report. See Fla. Fam. L. R. P. 12.490(f) ("The parties may file exceptions to the report within 10 days from the time it is served on them."). In light of the compressed time frame between Former Husband's filing of his exceptions to the magistrate's report and the scheduled trial date approximately four weeks later, Former Husband's exceptions were noticed to be heard at the start of the trial. See id. ("If exceptions are filed, they must be heard on reasonable notice by either party or the court.").
The trial court, however, did not hold this separate hearing. Instead, on the morning of trial, and despite Former Wife's assertion that the trial court should first separately address Former Husband's exceptions to the magistrate's report and recommendation, the court determined that it would proceed with the trial and resolve Former Husband's exceptions from the trial testimony presented, which it later did.
As previously indicated, and contrary to the magistrate's report and recommendation, the trial court granted Former Husband's exceptions, did not hold or find Former Husband in contempt regarding the temporary support order, and made a specific finding that Former Wife's trial testimony regarding Former Husband's alleged noncompliance with the temporary support order "w[as] self-serving and lacking in credibility." The court separately concluded that no retroactive support was owed to Former Wife by Former Husband.
Our review of the record indicates that the trial court may have misunderstood its tasks when addressing the general magistrate's report and recommendation. A trial court's responsibilities upon receipt of a magistrate's report and recommendation are "similar to those of [an] appellate court in reviewing a trial court's findings and determinations." Cerase v. Dewhurst , 935 So. 2d 575, 578 (Fla. 3d DCA 2006) (quoting Reece v. Reece , 449 So. 2d 1295, 1295 (Fla. 4th DCA 1984) ).
The transcript from the general magistrate's hearing was filed long before the trial concluded and the final judgment was entered.
To that end, a trial court must determine whether the magistrate's factual findings in the report and recommendation are supported by competent substantial evidence. Id . If so, then the trial court must accept the magistrate's findings. See In re Drummond , 69 So. 3d 1054, 1056–57 (Fla. 2d DCA 2011) ("When the trial court reviews the magistrate's report to resolve an exception, there is consensus that a trial court must accept the magistrate's findings of fact if they are supported by competent, substantial evidence." (citing Tilton v. Gardner , 52 So. 3d 771, 775 (Fla. 5th DCA 2010) (additional citations omitted))). It must also address whether the magistrate's legal conclusions in the report and recommendation are clearly erroneous and if the magistrate misconceived the legal effect of the evidence. Id. at 1057 ; see also Anderson v. Anderson , 736 So. 2d 49, 50–51 (Fla. 5th DCA 1999) (confirming that a trial court, in reviewing a magistrate's findings and conclusions, does not make independent findings of fact or reach independent conclusions as to the legal effect of these facts).
Despite the trial court's application of an incorrect standard of review, we nevertheless affirm the court's ruling in its final judgment denying Former Wife's motion to hold or find Former Husband in contempt because, as previously indicated, the error is harmless. In doing so, the nature of the temporary support order is important to our analysis.
More particularly, temporary support orders, such as the one entered in this case, are interlocutory in nature, such that they are superseded by and merged into the final judgment. Jackson v. Jackson , 513 So. 2d 780, 781 (Fla. 1st DCA 1987). And as recognized by the Florida Supreme Court almost one hundred years ago, because these orders are interlocutory, a trial court has the discretion, upon proper showing, to vacate a prior order allowing temporary alimony, even when the order "was originally made by consent of the parties, and pursuant to an agreement between them." Duss v. Duss , 92 Fla. 1081, 111 So. 382, 383 (1926). Furthermore, since a trial court's enforcement of an interlocutory order for the payment of temporary alimony, in the absence of intervening and effective appellate jurisdiction, remains completely within the court's discretion and control, a temporary support order may be annulled or modified by the trial court, even as to past due installments owed by a party. Id. at 383–84.
See also § 61.14(11)(a), Fla. Stat. (2019) (providing that "[a] court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding").
Here, the trial court, in the final judgment, found that the temporary support order "was in place much longer than anticipated"; and it effectively modified the order to retroactively nullify Former Husband's obligation to pay any past-due support payments that may have accrued. Resultingly, Former Wife's motion for contempt for Former Husband's alleged failure to make temporary support payments as required by this order was rendered moot.
Former Wife has made no argument here that the trial court abused its discretion in essentially modifying the temporary support order. Accordingly, the trial court's unchallenged and therefore affirmed retroactive modification of temporary support and resulting nullification of any past-due support payments effectively rendered moot those portions of the general magistrate's report recommending that the trial court hold Former Husband in contempt for the nonpayment of his temporary support obligations. As a result, Former Husband's exceptions to those portions of the magistrate's report were likewise moot. Therefore, based upon the specific facts and circumstances in this case, the trial court's error in granting those particular exceptions to the magistrate's report was harmless.
Lastly, in its final judgment, the trial court reserved jurisdiction to address both parties’ respective claims for attorney's fees. Moreover, although the final judgment denied the other motions heard by the magistrate, the trial court made no express ruling on Former Wife's motion for temporary attorney's fees. Accordingly, we conclude that Former Wife's claim for temporary attorney's fees has not been determined; and, as a result, we do not reach that issue.
AFFIRMED.
COHEN, J., concurs.
EISNAUGLE, J., concurs specially, with opinion.
EISNAUGLE, J., concurring specially.
I agree with the majority's well-reasoned opinion affirming the final judgment. I write only to explain that I do not reach Former Wife's argument that the trial court employed an incorrect standard of review when it granted Former Husband's exceptions to the magistrate's report because this argument was unpreserved.
"There are many legal requirements of which a trial court is presumably aware, yet appellate courts have held that a trial court's errors in failing to comply with those requirements must still be preserved." Eaton v. Eaton , 293 So. 3d 567, 568 (Fla. 1st DCA 2020) (citations omitted).
"In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Sunset Harbour Condo. Ass'n v. Robbins , 914 So. 2d 925, 928 (Fla. 2005) (quoting Tillman v. State , 471 So. 2d 32, 35 (Fla. 1985) ); see also Pensacola Beach Pier, Inc. v. King , 66 So. 3d 321, 325 (Fla. 1st DCA 2011). In other words, "[a]ny specific reason for reversal must be a specific reason that was advanced by the appellant in the trial court." I.R.C. v. State , 968 So. 2d 583, 589 (Fla. 2d DCA 2007) (emphasis added) (citations omitted).
"The purpose of this rule is to ‘place[ ] the trial judge on notice that error may have been committed, and provide[ ] ... an opportunity to correct it at an early stage of the proceedings.’ " Harrell v. State , 894 So. 2d 935, 940 (Fla. 2005) (alteration in original) (quoting Castor v. State , 365 So. 2d 701, 703 (Fla. 1978) ). As Judge Kuntz has aptly observed, the rule benefits "the litigants, the court, and the judicial system." Fox v. Fox , 262 So. 3d 789, 798 (Fla. 4th DCA 2018) (Kuntz, J., concurring in part and dissenting in part) (citation omitted).
In this case, Former Wife was able to clearly articulate a specific argument in her initial brief. As such, that same argument could have, and should have, been raised below to give the trial court an opportunity to correct the alleged error. Instead, Former Wife unnecessarily chose to pursue a much more expensive and time-consuming remedy on appeal.