Brill v. Brill, No. 4D03-882 (FL 4/27/2005), 4D03-882.

Decision Date27 April 2005
Docket NumberNo. 4D03-1391.,No. 4D03-882.,No. 4D03-4115.,4D03-882.,4D03-1391.,4D03-4115.
PartiesMARY BRILL, Appellant, v. BRUCE BRILL, Appellee.
CourtFlorida Supreme Court

Mary Brill, Coral Springs, pro se.

No brief filed on behalf of appellee.

WARNER, J.

Mary Brill appeals three postjudgment orders enforcing the provision of a final judgment that directed the marital home be sold when the youngest child reached majority. She contends the trial court entered the first two orders without notice and without full review and entered the third order, which is an order of contempt based upon the previous orders, without considering her objection. We affirm all three orders.

Mary and Bruce Brill's marriage dissolved in 1994. In the final judgment the parties were declared tenants in common as to the marital home, with Bruce's interest in the home valued at $19,750 to balance the value of the business awarded to him. Bruce was to receive his interest upon sale of the residence. Mary received exclusive possession of the home until the youngest child reached majority, and she was responsible for all expenses of the home. The final judgment directed that the home be sold once the youngest child attained majority.1 In addition to the equitable distribution, Mary was awarded alimony and child support. Mary appealed the final judgment, and this court affirmed. Brill v. Brill, 685 So. 2d 48 (Fla. 4th DCA 1996).

Soon after final judgment was entered, Mary filed a motion for contempt because Bruce fell behind on his alimony and child support payments. Mary was not represented by an attorney at this point, except for the attorney assigned through the Support Enforcement Division. The record is replete with motions for contempt and hearings before a general master. Bruce was held in contempt several times, and purge provisions were set. He paid the purge provisions when writs of bodily attachment were issued. Since 1999, an arrearage in excess of $20,000 has existed. Bruce would fall slightly behind on his current obligations but bring them current when another motion for contempt was filed. The arrearages have remained.

In April 2002, Mary filed a motion to compel Bruce to pay the arrearages in full and to sign documents permitting her to obtain a loan to repair the home's roof. After a hearing on the matter, the court entered an order finding the alimony arrearages were $22,296.96. Although in her motion she had asked that this amount be reduced to a judgment, she requested the court defer entry of a judgment, which the trial court granted.

As to the roof repair, the court refused to compel Bruce to sign the documents presented by Mary because the loan she sought to obtain required her to remain in the home for at least five years. Because the parties' youngest child would reach majority in six months, this would prevent Bruce from obtaining his interest in the home for a prolonged period of time. Bruce offered to waive his $19,750 interest in the home and transfer his interest to Mary for application to the alimony arrears, which would then be reduced to $1,768.46. Mary apparently refused this offer.

Mary continued to press for payment of the alimony arrearages through contempt proceedings and filed several motions in this regard in the fall of 2002, as well as a request to extend child support until the youngest child graduated from high school. She also filed a motion for attorney's fees and an objection to a hearing held on November 4, 2002. In December of 2002, Bruce filed a "Motion to Enforce Final Judgment" in which he alleged that the youngest child had attained majority and, by the terms of the final judgment of dissolution, the home was to be sold. Bruce noted that he needed his share of funds generated from the sale of the house to satisfy the alimony arrearages that Mary was demanding. He requested that the court order Mary to sign a listing agreement to sell the home.

For her motions, Mary filed notices of hearing for February 14, 2003. In the file is a notice of hearing for her "Second Verified Motion for Attorney Fees To Be Paid by Petitioner Bruce Brill" and a notice for her "Emergency Verified Objection to Hearing Held November 4, 2002 and For The Court To Rule on Motions Presented." There is no transcript of the February hearing. However, the order recites that Mary's motions, including the contempt motion, and Bruce's motion for enforcement of the final judgment were heard. The court awarded some fees to Mary, ordered the marital residence be listed for sale, and determined the child support issue was moot. Thus, it appears that the court did not rule on the contempt motion. Mary appealed that order.

Meanwhile, Bruce filed a motion for the court to appoint a real estate broker because Mary refused to sign any listing agreement for the sale of the home. This was noticed for hearing on March 12, 2003. Mary did not appear at the hearing, claiming in a later filing that she thought the hearing was cancelled based upon a conversation with the judge's judicial assistant. The court entered an order appointing a real estate broker. The order also stated that upon sale of the property, net proceeds would be held in escrow pending further order of the court. Mary appealed this order too. When the appointed broker failed to obtain cooperation from Mary in showing the house, Bruce filed a motion for contempt. The court declined to find Mary in contempt but ordered her to cooperate in the sale of the house. This order was also appealed, but it was dismissed by this court.

Bruce again filed a motion to hold Mary in contempt for failure to cooperate in the sale of the home, alleging that he needed the proceeds to satisfy his alimony arrearages. The matter was referred to a general master. There is no court reporter's transcript of the proceedings. The master recommended that Mary be held in contempt and stated that Mary admitted that she disobeyed the court order. The general master recommended that a lock box be put on the residence, with the broker and Mary each having a key. If Mary did not cooperate with this, the master suggested the broker be authorized to hire a locksmith to change the locks on the house, keep a key to the lock, and provide Mary with a key.

Mary filed objections to this order. She contended that the orders of which she was found in contempt were entered without notice and have been appealed, and the master failed to consider her evidence of other assets owned by Bruce. Mary also complained of the court's consistent refusal to enforce the final judgment with respect to alimony arrearages. The trial court held a hearing on the master's report and objections, overruled the objections, and ratified the master's recommendations. This is the third order Mary appeals.

Mary argues that the February 14, 2003 order requiring her to sign a listing agreement and, thus, enforcing the sale provision of the final judgment of dissolution was entered without notice and an opportunity to be heard. She also says that the court refused to consider evidence of Bruce's ability to pay the alimony arrearages at the hearing. Both claims must fail. First, Mary's due process rights were not violated when the court heard Bruce's motion without notice because the motion was one to enforce judgment, thus the issues it concerned had already been adjudicated. Second, Mary did not present a sufficient record from which it can be determined that the court refused to consider evidence regarding Bruce's ability to pay the arrearages but, even if the court did, it was not an abuse of discretion as to the consideration of the motion to enforce the final judgment.

It is generally a due process violation for a trial court to determine matters not noticed for hearing. See Mizrahi v. Mizrahi, 867 So. 2d 1211 (Fla. 3d DCA 2004) (finding trial court denied father's due process rights when it modified travel restriction contained in order during hearing on father's motion to hold mother in contempt); Fuchs v. Fuchs, 840 So. 2d 449 (Fla. 4th DCA 2003) (finding trial court erred in ruling on matters concerning child custody and child support during hearing noticed for husband's motion for temporary financial relief); Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981) (finding court violated appellant's due process rights when it disposed of all pending matters, including matters that were not noticed for hearing). There are circumstances, however, when lack of notice does not violate due process. In United Presidential Life Insurance Co. v. King, 361 So. 2d 710 (Fla. 1978), the supreme court determined that there is a due process distinction between prejudgment and postjudgment garnishment being conducted prior to a hearing. It determined that "[p]ostjudgment garnishment does not involve the freezing of debtor assets pending adjudication as to the validity of the underlying debt. Instead, it merely provides a procedure for the enforcement of the judgment against those assets." 361 So. 2d at 713. Therefore, the court found that due process does not require "prior notice to a judgment debtor and a hearing before a writ of garnishment." Id.

Here, the record demonstrates Mary filed a notice of hearing on her motion for attorney's fees. Bruce then filed a motion to enforce the final judgment of dissolution but never noticed this motion for hearing. While Mary claims this was a violation of her right to due process, her situation is more analogous to the one in King. As the motion heard without notice was a motion to enforce the terms of the previously entered judgment, it was merely a procedure for enforcing Bruce's previously adjudicated rights. Because no actual matters were being adjudicated on Bruce's motion to enforce...

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