Kratzer v. Reimiller

• Decision Date: 30 November 1989
• Docket Number: No. 88-2175,88-2175
• Citation: 14 Fla. L. Weekly 2757,552 So.2d 1188
• Parties: 14 Fla. L. Weekly 2757 James B. KRATZER, Appellant, v. Doris G. REIMILLER, Appellee.
• Court: Florida District Court of Appeals

Page 1188

552 So.2d 1188

14 Fla. L. Weekly 2757

James B. KRATZER, Appellant, v. Doris G. REIMILLER, Appellee.

No. 88-2175.

District Court of Appeal of Florida Fifth District.

Nov. 30, 1989.

Michael R. Walsh, Orlando, for appellant.

Lawrence D. Johnson, Winter Park, for appellee.

DAUKSCH, Judge.

This is an appeal from a judgment in a marriage dissolution case. Appellee petitioned for the dissolution and did not seek, or allege entitlement to, alimony. Nor did she allege a need for and seek attorney's fees.

Appellant did not respond to the petition, so a default was taken against him. He received a notice of the final hearing and attended it without an attorney. We have no record of the trial but there is no allegation that there were any orders of the judge permitting any ore tenus amendments to the pleadings at trial. There is no allegation that the court granted appellee the right to amend the pleadings "to conform with the proof."

Because there are no pleadings alleging entitlement to alimony and attorney's fees and because there are no pleadings praying for alimony and attorney's fees it was error to award them.

We are aware that appellee filed a bare motion for attorneys fees and filed a "Wife's Compliance with Order Setting Non-Jury Trial and Scheduling Conference" where she said:

3. Alimony

a. Amount of alimony proposed by the Wife for the Wife--Husband's interest in 1987 Ford Mustang. Lump sum and periodic rehabilitative alimony.

* * * * * *

5. Personal Property.

b. ... If the Husband obtains alternative financing and the Wife's name is removed from present financing on the vehicle the Wife has no objection to title of the vehicle being conveyed to the Husband. If the Husband does not obtain other financing and remove the Wife from liability, the Court should either award the Wife periodic rehabilitative alimony to cover the indebtness [sic] and award the vehicle as lump sum alimony to avoid the credit of the Wife being ruined.

* * * * * *

6. Attorney's Fees and Court Costs.

a. The amount of attorney fees and court costs sought by the Wife--$1,728.00.

b. Testimony will be offered on this issue at trial.

This document in the record is not a pleading and is not a substitute for a proper petition. Additionally, appellee declared in this document that "There are no pending nor anticipated requests for amendments to the pleadings." The motion for fees and costs does not allege entitlement or ability to pay.

Whether this failure to plead for alimony and attorney's fees was intentional or negligent is of no matter. It is wrong to give what is not properly pleaded. See Hines v. Hines, 494 So.2d 297 (Fla. 3d DCA 1986); Massey v. Massey, 478 So.2d 478 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So.2d 1085 (Fla. 5th DCA 1979).

Those portions of the judgment awarding alimony and fees are reversed; otherwise, the judgment is affirmed.

AFFIRMED in part; REVERSED in part.

COWART, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I respectfully dissent. In my view, this is a relatively simple case. I would affirm the trial judge's awards of rehabilitative alimony and attorney's fees to the former wife (appellee), based on Florida Rule of Civil Procedure 1.190(b) ¹ which provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend shall not affect the result of the trial of these issues.... (emphasis supplied)

The record in this case establishes that Doris Kratzer filed a petition for dissolution against James Kratzer on July 12, 1988. It was a short-term marriage, and although the parties had acquired some personal property during their marriage, they had also acquired substantial joint debts. Doris asked the court to fairly apportion the property and the debts and grant her such other relief as the court found just and appropriate. Her petition asked the court to equitably distribute a Ford Mustang, which was titled in her name. She did not ask for attorney's fees nor for any kind of alimony.

On July 17, 1988, Doris' attorney sent James a proposed settlement. It proposed the parties agree their mutual division of personal property was fair, and it gave James the option of owning the Mustang if he paid off the car loan or refinanced it so as to release Doris from further liability. Apparently no agreement was reached.

On August 23, 1988, a default judgment was entered against James. A notice and motion for trial was served on him on August 31. On September 13, 1988, Doris filed and served on him a motion for attorney's fees.

The court entered an order setting the trial for October 25, 1988. It was served on both parties. Pursuant to the court's pretrial order (also served on both parties), Doris' attorney filed his pretrial compliance. It was served on James.

Under the category entitled "alimony," Doris asked to be awarded James' interest in the Mustang. She labeled it "lump sum" or "rehabilitative alimony." Under the category entitled "property in controversy," Doris suggested that if James were required to obtain new financing on the car and remove her from any liability on the car loan, she would agree to the court's giving the car to James. However, if she was to be awarded the car, she requested periodic rehabilitative alimony sufficient to cover the balance of debt owed on the car, "to avoid the credit of wife being ruined." Exhibits indicate the car was worth $7,200, but the debt owed the bank on the car was $9,100. Doris also listed attorney's fees of $1,728, plus costs, as other issues about which testimony would be offered at trial.

No written objections to any evidence or issues proffered by Doris are in the record, and neither party asserts that any were made at the trial. There was no record made of the trial. Therefore, we must assume that sufficient evidence was adduced at the trial, with the express or implied consent of both parties, to support the trial court's judgment. ² Appellants always have the burden of demonstrating record error. ³

With regard to the award of rehabilitative alimony, the financial affidavit of appellee which is in the record (and likely considered by the trial judge), shows that Doris is a full-time student and a part-time sales person at Ivey's Department Store. Her net monthly income is $486.58; her expenses total $1,158.50, not including the car loan. Her liabilities ($17,014.20) exceed her assets ($11,402.00), and her largest debt is the $9,100 owed on the Mustang.

At trial, Doris introduced as an exhibit the title to the car, showing a first lien held by First Republic Bank of Texas (assigned to NCNB of Texas). She also introduced at trial past due notices on the car loan showing delinquencies began December 26, 1988. The unpaid balance totalled $12,116.11, and the monthly payment was $270.86.

The award of $400 per month as rehabilitative alimony for one and one-half years could well be related to paying off roughly one-half of the debt owed on the car, including penalties. Or, it may have related to Doris' need for temporary support while she completes her course of studies. In either case, whether based on the debt structure or need for support, that portion of the record which is before us indicates the award of rehabilitative alimony should be sustained. Pastore v. Pastore, 497 So.2d 635 (Fla.1986). See Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983) (rehabilitative alimony may be awarded for a specific purpose not necessarily related to support).

Regarding the award of attorney fees and costs, counsel for Doris filed and served on James two detailed affidavits prior to trial setting forth the number of hours and legal tasks performed. As noted above, counsel also filed a motion for attorney fees and noted it as an issue for trial in his pretrial compliance papers. The pretrial compliance also lists an expert legal witness who was to testify about attorney fees. The court's award was exactly what Doris' attorney requested. We must assume adequate evidence was presented at trial to support the award ($1,728). Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

The only basis for overturning the attorney fees award and the award of rehabilitative alimony in this case is because Doris failed to plead for such relief in her petition for dissolution. Although a better practice would have been to have included them or to have amended the pleadings at trial or after judgment to include them, in the circumstances of this case, such omission should not be fatal.

This is not a case where appellant had no notice that alimony and attorney fees would be issues presented at trial. Further, this is not a case where a party objected at trial to the introduction of evidence relating to issues not raised in the pleadings. ⁴ Had James raised such an objection at trial, Doris' counsel could have moved to amend instanter since notice that the trial would involve these issues had been given to James. ⁵ The fact that James...