Jean v. Jean

• Decision Date: 07 May 2021
• Docket Number: Case No. 2D19-4137
• Parties: Rosemita JEAN, Appellant, v. Josue JEAN, Appellee.
• Court: Florida District Court of Appeals

320 So.3d 313

Rosemita JEAN, Appellant,

v.Josue JEAN, Appellee.

Case No. 2D19-4137

District Court of Appeal of Florida, Second District.

Opinion filed May 7, 2021.

Carl R. Hayes, Tampa, for Appellant.

Terence S. Moore, Tampa, for Appellee.

SMITH, Judge.

Rosemita Jean (Former Wife) appeals the trial court's order adopting the recommendations of the general magistrate as to Josue Jean's (Former Husband) second motion for contempt or enforcement of the parties' final judgment of dissolution and summarily denying her exceptions to the same. Because the trial court erroneously denied the Former Wife her right to a hearing on her timely exceptions to the magistrate's report, we reverse and remand for the trial court to hold a hearing on the Former Wife's exceptions.¹

I.

Our review begins with the parties' final judgment of dissolution of marriage rendered on March 13, 2007. The portion of the final judgment that concerns us deals with the equitable distribution of the marital home and provides that the Former Wife shall have exclusive possession of the marital home until the parties' last child is emancipated. Pursuant to the final judgment, while the Former Wife retains possession of the home, she is responsible for the mortgage, taxes, and insurance; she is also required to maintain the house. The final judgment sets forth that upon emancipation of the youngest child, the house is to be sold and the Former Wife is to be given credit for half of the mortgage payments, taxes, and insurance that she paid on the house while living in it. Finally, the final judgment includes a paragraph stating that the court "retains jurisdiction of the parties and subject matter of this cause to enter such other and further orders as may become necessary and appropriate."

The parties' youngest child turned eighteen on April 21, 2014. On December 16, 2014, the Former Husband filed his first motion for contempt and enforcement and/or motion for the forced sale of the marital property pursuant to the final judgment. On January 9, 2016, the trial court entered an order granting the Former Husband's motion and ordering the parties to obtain an appraisal on the house.² The order provided that upon receipt of the appraisal, the Former Husband could buy out the Former Wife's interest in the property based thereon, also giving the Former Wife credits for her payments made while living there as consistent with the final judgment. Alternatively, the order required the parties to list the house and upon its sale, to split the proceeds consistent with the final judgment.

Apparently nothing transpired after the January 9, 2016, order until August 29, 2017, when the Former Husband filed a second motion for contempt or enforcement regarding the marital home. Again, the trial court ordered the parties to obtain an appraisal, allowing the Former Husband the option of buying out the Former Wife's interest and giving her credits consistent with the final judgment or alternatively, requiring the parties to list the property and split the proceeds consistent with the final judgment.

Again, for unknown reasons, nothing transpired in the case between the August 29, 2017, order and the Former Husband's filing of yet a third motion for contempt or enforcement of the final judgment related to the marital property on October 23, 2018. This time the matter was referred to a general magistrate. The general magistrate held a hearing on June 26, 2019, on the Former Husband's third motion for contempt or enforcement. At the hearing, the parties consented to the general magistrate determining the various credits that the parties were entitled to upon the sale of the house under the terms of the final judgment. The parties both testified as to the amounts they had paid toward the mortgage, insurance, and taxes. And while not pleaded in his third motion for contempt or enforcement, during the hearing it became clear that the Former Husband was seeking an award of one-half the fair rental value of the house for the period of time the Former Wife had been in possession of the house after the youngest child had been emancipated. The Former Husband testified that the fair rental value of the house was $1,300 per month. At the conclusion of the hearing, the magistrate found, among other things, that the Former Husband was entitled to one-half of the fair rental value of the house from May 1, 2014, until the sale of the house. The magistrate determined that the fair rental value was $1,300 per month based on the Former Husband's unrebutted testimony.

The Former Wife timely filed, on July 25, 2019, exceptions to the magistrate's report and recommendations. Thereafter, the trial court entered its Procedural Order on Exceptions/Motion to Vacate Proceedings on August 2, 2019, which required the Former Wife, as the party who filed the exceptions, to file a transcript of the hearing before the magistrate within forty-five days of the order, failing which the exceptions would be summarily disposed of without further notice. No transcript was filed by the Former Wife within the forty-five days, and on October 23, 2019, the trial court rendered three orders. In the first order, because the trial court's review of the court file revealed that neither party filed a transcript and neither party set the matter for hearing, the trial court summarily denied the Former Wife's exceptions.³ The second order adopted the magistrate's report and ratified the same. The third order was a notice of cancelation of hearing, which canceled the scheduled October 29, 2019, hearing on the Former Wife's exceptions and stated that the parties failed to abide by the August 2, 2019, order requiring the parties to file a copy of the transcript from the magistrate's hearing within forty-five days.

II.

Pursuant to Florida Family Law Rules of Procedure, if exceptions to the magistrate's report are timely filed, "they must be heard on reasonable notice by either party or the court." Fla. Fam. L. R. P. 12.490(f) (emphasis added). And "[f]or the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, must be provided to the court by the party seeking review if necessary for the court's review ." Fla. Fam. L. R. P. 12.490(g) (emphasis added). If a record is necessary for the court's review of the exceptions, rule 12.490(g) provides that the record must include "the court file, including the transcript of the relevant proceedings before the general magistrate and all depositions and evidence presented to the general magistrate" and that the transcripts "must be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions." Fla. Fam. L. R. P. 12.490(g)(1), (2).

First, we note that well-settled law in Florida requires a hearing to be held on timely filed exceptions to a magistrate's report. Yoxsimer v. Yoxsimer, 918 So. 2d 997, 998-99 (Fla. 2d DCA 2006) (holding that rule 12.490(f) requires a mandatory hearing on timely filed exceptions to a...