Roth v. Cortina
| Decision Date | 02 March 2011 |
| Docket Number | 3D10–1983.,Nos. 3D09–2161,s. 3D09–2161 |
| Parties | Linda ROTH, former wife, Appellant/Cross–Appellee/Appellee,v.Carlos CORTINA, former husband, Appellee/Cross-appellant/Appellant. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Linda Roth, in proper person.Dirk Lorenzen, Coral Gables, and Natasha Crespo Rodriguez, for appellee/cross-appellant/appellant.Before WELLS, SALTER, and EMAS, JJ.WELLS, Judge.
This is a consolidated appeal from three post-dissolution orders. In Case Number 3D09–2161, Linda Roth appeals and Carlos Cortina cross-appeals from two orders distributing their assets and awarding alimony and attorney's fees. In Case Number 3D10–1983, Cortina's counsel appeals from an order denying his motion for leave to withdraw after he was discharged by his client.1 We reverse all three orders and remand with instructions.
Roth and Cortina were married in 1979; two now-adult children were born of this marriage. In September 2007, the marriage was dissolved in a bifurcated proceeding with the trial court retaining jurisdiction over all issues regarding property distribution, alimony and related matters. In March of 2009, the court below entered an order awarding permanent periodic alimony to Cortina. Three months later, in July 2009, the court below, on a motion for rehearing, for the first time distributed the parties' assets and then modified the amount of the permanent periodic alimony award. Some ten months after that, Cortina's counsel sought leave to withdraw, representing that he had not been paid “any” fees for his representation and that he had been discharged by his client. This motion was denied.
Roth appeals from the March and July 2009 orders claiming the trial court erred (1) in failing to make specific findings to support the permanent periodic alimony award; (2) in failing to ascertain need on Cortina's part; (3) in awarding alimony in an amount that exceeded Cortina's demonstrated need and Roth's ability to pay; (4) in determining the amount of alimony that Roth was to pay to assure insurance coverage to Cortina; (5) in failing to identify or to distribute the parties' liabilities; and (6) in postponing consideration of the parties' claims for attorneys' fees until some unspecified future time.
Cortina cross-appeals from these same orders claiming the court below erred: (1) in failing to enforce its temporary fee award thereby depriving Cortina of adequate representation; (2) in failing to equitably distribute the parties' assets; (3) in awarding an inadequate amount of alimony to him; and (4) like Roth, in postponing ruling on attorneys' fees and costs.
We agree that the March and July 2009 orders must be reversed. As this court and Florida Statute section 61.075(9) make clear, a “trial court is first to do the equitable distribution of assets, and once the assets have been equitably distributed, make a determination whether alimony should be awarded.” Acker v. Acker, 821 So.2d 1088, 1092 (Fla. 3d DCA 2002) (en banc) (emphasis added); see § 61.075(8), Fla. Stat. (2009) (). This is so that the court may consider these items when determining the financial resources available to each for the purposes of making an alimony award. See § 61.08(2)(d), Fla. Stat. (2009) ().
In this case, alimony was awarded in March 2009, months before distribution was addressed (in July 2009), making it impossible to consider the impact any income or payments associated with the parties' properties might have on the alimony award. Moreover, contrary to section 61.075, the distribution order (dated July 2009), while identifying four “remaining” assets owned by the parties, fails to value any of these assets or to identify, value, or distribute any liabilities associated with them 2 or otherwise:
(3) ... The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
...
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability[.]
§ 61.075(3)(b), (c), Fla. Stat. (2009).
The order is, in fact, devoid of any findings that would advise either of the parties or this court as to “the trial court's rationale for [its] distribution of marital assets and allocation of liabilities.” § 61.075(3)(d), Fla. Stat. 2009.
The March 2009 alimony award suffers from a similar infirmity. Section 61.08 provides that alimony awards must be supported by findings of fact relative to standard of living; age, physical and emotional condition of each party; financial resources; contributions to the marriage, and “all” sources of income:
(1) ... In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.
(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage ...
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.
§ 61.08(1), (2)(a)-(g), Fla. Stat. (2009).
While the March 2009 order identified some of these factors, it makes no findings to support the amount of alimony awarded. Indeed, the order suggests that Roth has no current ability to pay the amount awarded. As explained in Baptiste v. Baptiste, 992 So.2d 374, 375 (Fla. 3d DCA 2008), failure to identify the factual basis for this and the distribution awards mandates reversal:
The trial court was required to consider evidence and to make findings of fact in order to support the lump sum alimony award. § 61.08(1), Fla. Stat. (2008); Geoghegan v. Geoghegan, 969 So.2d 482 (Fla. 5th DCA 2007); Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007); Fulmer v. Fulmer, 961 So.2d 1081 (Fla. 1st DCA 2007). Section 61.08(1) specifies that “[i]n all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” (Emphasis provided). Similarly, section 61.075(3), Florida Statutes (2007), requires that an equitable distribution of marital assets include specific written findings of fact.
See Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005) ; Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (); Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998) (). We must, therefore, reverse the March and July 2009 orders and remand to the trial court for findings consistent with the requirements of Chapter 61 of the Florida Statutes.
We also reverse the trial court's refusal to enforce an earlier order obligating Roth to pay $5000 in fees pendente lite to Cortina and its decision to defer ruling on Cortina's request for a fee award at the conclusion of this action. The trial court's failure to enforce its temporary fee award clearly deprived Cortina, mentally ill and not fully employed for many years, of the opportunity to fully present his case. On remand, the temporary fee order should be promptly enforced.
As for the trial court's decision to defer determining Cortina's entitlement to a fee award at the termination of these proceedings, both Roth and Cortina agree that deferral was erroneous. While the order states that Cortina “likely will have a greater chance of success if [a fee hearing is] set [when the...
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