Barrett v. Barrett
| Decision Date | 12 March 2021 |
| Docket Number | Case No. 5D20-946 |
| Parties | Loretta BARRETT, Appellant, v. Cormac BARRETT, Appellee. |
| Court | Florida District Court of Appeals |
Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, and Caryn M. Green, of Green Family Law, P.A., Orlando, for Appellant.
Brandon M. Tyson, of Tyson Law Firm, LLC, Winter Park, and William A. Greenberg, Winter Park, for Appellee.
Loretta Barrett appeals the amended final judgment of dissolution in her divorce action against Cormac Barrett. We reverse for the trial to conduct an evidentiary hearing on the former wife's motion to reopen her case due to the former husband's alleged fraudulent trial testimony. We separately note errors in the trial court's alimony and equitable distribution awards. We affirm in part, reverse in part, and remand for further proceedings.
During the parties’ long-term marriage, the former wife was a stay-at-home mother to the parties’ three children,1 while the former husband worked in medical sales. In 2014, the parties moved to Florida from New York, but the former husband continued to live and work in New York, visiting on weekends. In October 2017, the former wife filed for divorce. Shortly thereafter, the former husband changed jobs. He owns and operates Barr Medical, which sets up and services physician office laboratories.
The parties’ primary asset is an unmortgaged $800,000 marital home. Most of this long, contentious, and expensive litigation, however, involved the former husband's income at Barr Medical. The former wife believed the former husband had more clients, and therefore, more income, than he claimed. Accordingly, the former wife issued several out-of-state, non-party subpoenas to obtain his financial information. The trial court twice continued the trial to allow the former wife to pursue this information, and properly declined her third request.2
The trial took place over two days on September 20, 2019, and October 18, 2019. At trial, the former wife sought to establish the former husband's income based on five clients. The former husband only acknowledged having three clients. One of the two disputed clients was Dr. Luis Glodowski. On the trial's second day, the former husband testified that he never did, or tried to do, any business with Dr. Glodowski. Therefore, Dr. Glodowski never paid him. In his closing argument, the former husband further argued that the former wife "create[d] two other revenue streams that did not exist."
In its original final judgment, the trial court found the former wife was voluntarily unemployed and imputed minimum wage to her. It further found the former husband earned a gross income of $173,275 annually, with a monthly net income of $9,365. In making this finding, the trial court implicitly found the former husband did not earn any income from Dr. Glodowski. It determined the former husband's financial affidavit revealed a "surplus" of $1,500, and that the former wife had "some need" for permanent alimony. Perhaps as a result, the trial court awarded $1,500 in monthly permanent alimony to the former wife. The trial court, however, did not award the former wife retroactive alimony because it found the former husband already paid "at least what the alimony award is" by paying her bills and car loan. Although the former wife demanded the former husband procure a life insurance policy to secure her award, and former husband opposed it, the trial court did not address this issue.
The trial court awarded the marriage's liquid assets to the former husband and the marital home to the former wife, ordering that she would receive it as her "sole property."3 Because the former wife received the parties’ primary asset, the trial court ordered the former wife to make a $279,586 equalizing payment to the former husband within 180 days. It abated alimony until the former wife made the payment. The trial court awarded the former wife $40,000 in attorney's fees, ruling that they would be deducted from the equalizing payment. It declined to find any litigation misconduct by the former husband, which the former wife used to argue for reimbursement of nearly $200,000 in attorney's fees.
Following issuance of the final judgment, the former wife's counsel filed over eighty pages of motions, supplements, and attachments, asking the trial court to reconsider its judgment. Much of the former wife's arguments demanded the trial court reconsider clear credibility determinations made in the former husband's favor. Four months after the original final judgment's issuance, the former wife asked the trial court to reopen evidence to consider recently received documents, which showed a series of six payments, totaling over $13,000, that Dr. Glodowski paid Barr Medical around the time of the trial. One check memo specifically stated, "part pay Lab," and from the payment dates, it appears the former husband received half the payments before he testified under oath that he never did business with, or received any payment from, Dr. Glodowski. Although the trial court amended the final judgment, making some minor changes, it denied the former wife's motion for rehearing and declined to re-open the case to consider any additional evidence.
The former wife sought relief under Florida Family Law Rules of Procedure 12.530(a) and 12.540(b)(3), alleging the former husband committed fraud by hiding Dr. Glodowski's payments to Barr Medical. If true, this income may have affected the trial court's alimony, equitable distribution, and attorney's fees awards. Under both rules, the former wife alleged a colorable fraud claim requiring an evidentiary hearing. See Robinson v. Weiland , 936 So. 2d 777, 781–82 (Fla. 5th DCA 2006).
A rule 12.530(a) motion allows a trial court to open a judgment to take additional testimony and enter a new judgment following a non-jury trial. Fla. Fam. L. R. P. 12.530(a). We evaluate the denial of this motion for abuse of discretion. See Loftis v. Loftis , 208 So. 3d 824, 826 (Fla. 5th DCA 2017).
To reopen her case, the former wife must establish that the presentation of new evidence will not unfairly prejudice the former husband, and that reopening will serve the best interests of justice. See Manko v. Manko , 273 So. 3d 208, 209 (Fla. 5th DCA 2019). We consider four factors in evaluating the former wife's request: (1) its timeliness; (2) the character of evidence she seeks to introduce; (3) the effect of the evidence's admission; and (4) the reasonableness of her excuse justifying reopening. See Grider-Garcia v. State Farm Mut. Auto. , 73 So. 3d 847, 849 (Fla. 5th DCA 2011).
The former wife filed her request less than three weeks after receiving Dr. Glodowski's financial information. She did not have this information before trial, although she had secured the appointment of a commissioner over the former husband's objection, subpoenaed the records, and initiated compliance proceedings through a New York attorney to obtain the documents.4 The character and effect of the documents are apparent—although we do not know what an evidentiary hearing may reveal, the former husband's trial testimony appears false. To the extent Dr. Glodowski's payments affect the former husband's income, this, in turn, could affect the trial court's alimony, equitable distribution, and attorney's fees awards.5 Each of these awards turned, at least in part, on the former husband's credibility. On remand, the trial court may wish to revisit its credibility assessments if the former husband perjured himself. And while any ensuing testimony may well prejudice the former husband, the prejudice is not unfair. See Singer v. Singer , 302 So. 3d 955, 959 (Fla. 2d DCA 2020).
Rule 12.540(b)(3) gives the trial court discretion to relieve the former wife from a final judgment procured by fraud, misrepresentation, or misconduct. See Rowe-Lewis v. Lewis , 267 So. 3d 1039, 1041 (Fla. 4th DCA 2019). We also review the denial of this motion for abuse of discretion. Id . Fraud allegations generally require a full explanation and exploration of the facts and circumstances of the alleged wrong. Robinson v. Kalmanson , 882 So. 2d 1086, 1088 (Fla. 5th DCA 2004). Where, as here, a party pleads fraud with specificity and particularity, the trial court must conduct an evidentiary hearing to determine whether the motion should be granted. See Robinson , 936 So. 2d at 781. Here, we do not make any determination about the veracity of the former wife's claims. She did, however, outline allegations of fraud with specificity, particularity, and supporting documentation. Therefore, the trial court erred by not holding an evidentiary hearing.
The former wife separately raises three meritorious arguments relating to the trial court's alimony award. First, the trial court did not quantify the former wife's need for alimony, finding only that she had "some need." See Matajek v. Skowronska , 927 So. 2d 981, 987 (Fla. 5th DCA 2006) (). Relatedly, the trial court neglected to quantify the former wife's net income and the parties’ respective expenses.6 See Woelk v. Woelk , 251 So. 3d 359, 359 (Fla. 5th DCA 2018) (); Gilliard v. Gilliard , 162 So. 3d 1147, 1154 (Fla. 5th DCA 2015) ().
The former husband argues that the former wife's exact need is "irrelevant" because the trial court could not award permanent alimony exceeding his ability to pay. See Pirino v. Pirino , 549 So. 2d 219, 220 (Fla. 5th DCA 1989). But the former...
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