Karkhoff v. Robilotta

• Decision Date: 09 December 2020
• Docket Number: No. 4D19-2947,4D19-2947
• Citation: 309 So.3d 229
• Parties: Lisa Kim KARKHOFF, Appellant, v. Thomas Anthony ROBILOTTA, Appellee.
• Court: Florida District Court of Appeals

309 So.3d 229

Lisa Kim KARKHOFF, Appellant,

v.Thomas Anthony ROBILOTTA, Appellee.

No. 4D19-2947

District Court of Appeal of Florida, Fourth District.

[December 9, 2020]

Michael D. Cirullo, Jr., of Goren, Cherof, Doody & Ezrol P.A., Fort Lauderdale, and Joshua K. Friedman and Jason A. Brodie of Brodie & Friedman P.A., Boca Raton, for appellant.

Doreen Inkeles of Law Firm of Charles D. Jamieson P.A., West Palm Beach, for appellee.

Klingensmith, J. Lisa Kim Karkhoff ("Former Wife") appeals the trial court's Final Judgment of Dissolution of Marriage raising six issues. Thomas Anthony Robilotta ("Former Husband") cross-appeals from the same Final Judgment asserting three more. We reverse and remand the trial court's Final Judgment to either correct or further address the various matters discussed herein. We affirm without comment any issues not specifically discussed.

The parties were married for approximately thirteen years before Former Husband petitioned for dissolution of marriage. They have one child who is disabled with ongoing medical needs, and Former Wife provides most of his day-to-day care. Following a trial on the issues, the trial court made oral pronouncements followed by the entry of a written Final Judgment containing findings regarding jurisdiction, parental responsibility, timesharing, equitable distribution, alimony, child support, life insurance, a parenting coordinator, and communication between the parties. For the most part, the court's Final Judgment mirrored its oral pronouncement but with some differences.

Subsequently, both parties filed motions for rehearing or reconsideration in the alternative, alleging various errors in the Final Judgment. The trial court entered an order denying both motions, and this appeal and cross-appeal followed.

This court "review[s] the determinations of a trial court within a dissolution judgment for abuse of discretion. The determinations will be upheld unless they are not supported by competent evidence." Jaeger v. Jaeger , 195 So. 3d 414, 415 (Fla. 4th DCA 2016) (quoting Jordan v. Jordan , 127 So. 3d 794, 796 (Fla. 4th DCA 2013) ).

1. INCONSISTENCY IN THE FINAL JUDGMENT REGARDING THE PARTIES’ VEHICLES

"It is well-settled law that the trial court's oral pronouncement must conform to the written judgment." Goosby v. Lawrence , 711 So. 2d 577, 578 (Fla. 3d DCA 1998). When there is conflict between the oral pronouncement and the written judgment, the oral pronouncement must control. Cappola v. Cappola , 280 So. 3d 102, 104 (Fla. 4th DCA 2019) ; Cajuste v. Herlitschek , 204 So. 3d 80, 83 (Fla. 4th DCA 2016). If the written judgment suffers from internal conflict or inconsistency, it "should be reversed and remanded for correction or clarification." Weymouth v. Weymouth , 87 So. 3d 30, 36 (Fla. 4th DCA 2012) ; see also Paskert v. Steffensmeier , 295 So. 3d 361, 362 (Fla. 2d DCA 2020) (reversing and remanding to delete a portion of the final judgment that was inconsistent with the oral pronouncement); Chovan v. Chovan , 90 So. 3d 898, 899 (Fla. 4th DCA 2012) (remanding to correct an inconsistency between the final judgment and the marital settlement agreement, which was merged into the final judgment).

Two vehicles were at issue in this case: an adaptive van used to assist in transporting the parties’ child, and Former Husband's personal vehicle—a Honda Fit. In the Final Judgment's equitable distribution section, the trial court ordered the Former Wife keep the van and Former Husband keep the Honda. The trial court also stated that the parties "waive[d] any right, title, or interest in and to" the other parties’ vehicle. But, in the parenting plan's transportation section, which was attached to and incorporated in the Final Judgment, the trial court ordered that Former Husband "shall be given use of the adaptive van for his Saturday timesharing." The trial court also ordered Former Husband to leave the Honda for Former Wife when he was using the adaptive van.

The trial court's oral pronouncement on this issue is consistent with the Final Judgment. The oral pronouncement stated that "[Former] Wife shall keep the adaptive van" and "[Former] Husband shall keep the Honda [Fit]." The Final Judgment's equitable distribution section awarded the parties the vehicles outright and stated that they "waive[d] any right, title, or interest in and to" the other parties’ vehicle. The parenting plan's transportation section, which was in the Final Judgment, stated that Former Husband "shall" be given use of the adaptive van for his timesharing and that Former Wife "shall" be given use of the Honda while Former Husband is using the adaptive van. Allowing the parties to "keep" their respective vehicles is certainly consistent with ensuring that they waive any rights in the other parties’ vehicle. Additionally, granting the parties limited use of the other parties’ vehicle for timesharing is not inconsistent with allowing them to "keep" their vehicles.

While the oral pronouncement and the Final Judgment are consistent, the Final Judgment suffers from an internal inconsistency. The Final Judgment's equitable distribution section states that the parties waive any "right, title, and interest" in the other parties’ vehicle, but the transportation section of the Parenting Plan grants the parties a "right" to use the other parties’ vehicle for timesharing, or at least a limited "interest" in the other parties’ vehicle during timesharing. See Right , BLACK'S LAW DICTIONARY (11th ed. 2019) ("A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong."); see also Interest , BLACK'S LAW DICTIONARY (11th ed. 2019) ("[A]ny aggregation of rights, privileges, powers, and immunities; distributively, it refers to any one right, privilege, power, or immunity.").

According to the Final Judgment, "[t]he Court retains jurisdiction to enforce this Order[.]" Thus it appears that the Former Husband was given the "right" to use the adaptive van under the parenting plan because he would be able to bring an enforcement action if Former Wife does not allow him to use the van for his timesharing with the child. See E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS § 3.4, at 114. n.3 (3d ed. 1999) ("A is said to have a right that B shall do an act when, if B does not do the act, A can initiate legal proceedings that will result in coercing B.").

Whether the trial court intended to award the parties limited use of the vehicles during timesharing,¹ rather than have them waive all rights to the vehicles, is unclear from the face of the Final Judgment and the record. Because the Final Judgment's language is internally inconsistent, we reverse and remand for the trial court to clarify whether its intent was to (1) grant Former Husband a limited right to use the adaptive van for timesharing, or (2) have the parties truly waive all rights in the other parties’ vehicle. See Weymouth , 87 So. 3d at 36 ; Chovan , 90 So. 3d at 899.

2. ORDER FOR FORMER WIFE TO REFINANCE THE MARITAL RESIDENCE

A trial court has the authority to order a party to refinance a home and remove the other party from the mortgage. See Tarnawski v. Tarnawski , 851 So. 2d 239, 241 (Fla. 4th DCA 2003). However, when a trial court orders a party to refinance a home in a final judgment, that final judgment must direct a result if that party is unable, or simply fails, to refinance the home. See Jones v. Jones , 184 So. 3d 1238, 1239 (Fla. 5th DCA 2016). Failure to include such a directive is reversible error. See id .

The trial court ordered that the marital home be awarded to Former Wife as part of her equitable distribution but that she had to refinance the home within 120 days. The court also found there was "credible evidence" that Former Wife could refinance the home.

In Jones , the trial court's final judgment "included language specifying that Former Wife must refinance or sell the home within eighteen months." Id. However, the final judgment did not include "the consequences should Former Wife fail to sell or refinance the home within the allotted time frame." Id. On appeal, the Fifth District held that the trial court erred in failing to include this information in the final judgment. Id.

While the trial court did not err in ordering Former Wife to refinance the marital home, it should have directed an alternate course of action if she could not or would not refinance the home. See Jones , 184 So. 3d at 1239 ; see also Schumaker v. Schumaker , 931 So. 2d 271, 275 (Fla. 5th DCA 2006) (trial court erred in failing to include the consequences should the former husband fail to refinance or sell the marital home within six months). Because the allotted period in the Final Judgment has already expired, the trial court's Amended Final Judgment should provide a renewed time frame for Former Wife to obtain refinancing and direct the result if she is either unable or unwilling to do so. See, e.g. , Patel v. Patel , 162 So. 3d 165, 166 (Fla. 5th DCA 2015) (directing the trial court to order the former husband to refinance the marital home and to include a "hold harmless provision" if he is unable to do so).

3. INCONSISTENCY BETWEEN THE ORDER ON TIMESHARING AND ORAL PRONOUNCEMENT

As stated above, "the trial court's oral pronouncement must conform to the written judgment." Goosby , 711 So. 2d at 578. And when there is a conflict between the oral pronouncement and the written judgment, the oral pronouncement must control. See Cajuste , 204 So. 3d at 83.

In its oral pronouncement, the trial court stated that after the timesharing schedule's first six months, Former Husband could petition for additional timesharing, including overnights, "upon a showing that he attended a significant amount of therapy sessions ... and that he has been consistent with his weekend timesharing on Saturday ." (emphasis added). The Final Judgment also confirmed that Former Husband could petition for additional...