Lee v. Lee

• Decision Date: 30 November 2022
• Docket Number: 2D21-1171,2D21-3331
• Parties: DANNY LEE, Appellant, v. KATJA LEE, Appellee.
• Court: Court of Appeal of Florida (US)

DANNY LEE, Appellant, v. KATJA LEE, Appellee.

Nos. 2D21-1171, 2D21-3331

Florida Court of Appeals, Second District

November 30, 2022

Appeals from the Circuit Court for Lee County; James Shenko and John S. Carlin, Judges.

Christopher D. Donovan and Ehren J. Frey of Roetzel &amp Andress, LPA, Naples, for Appellant.

Luis E. Insignares of Luis E. Insignares, P.A., Fort Myers, for Appellee.

SMITH JUDGE

Danny Lee (the Former Husband) appeals the final judgment in case 2D21-3331 (the family law action) that denied his amended petition for distribution of marital assets, denied his request for attorney's fees, and granted Katja Lee's (the Former Wife) request for fees entered after the trial court found that the Former Husband's action was unreasonable, vexatious, and not in good faith. The Former Husband also appeals the order granting final summary judgment in Case 2D21-1171 (the partition action), entered in favor of the Former Wife in a separate action filed by the Former Wife for partition of the parties' Florida marital home. In both cases, the Former Husband appeals the trial court's separate orders denying his motions to consolidate these cases. We consolidate the appeals of family law action and the partition action for purposes of this opinion.

I.

The parties were married in 1996. During their marriage, they accumulated marital assets and debt. In the summer of 2014, the Former Wife was offered a job in Finland. The parties agreed that she would take the job and that she and the two minor children would immediately move to Finland. The initial plan was for the Former Husband to stay in Florida to tie-up loose ends-selling the parties' cars and home-and eventually join the Former Wife and children in Finland. That plan did not pan out, and on December 15, 2015, the Former Wife filed for divorce in Finland.

Unlike dissolution proceedings in Florida, Finland has a "divisible divorce" process, in which the court first dissolves the marriage, followed, if necessary, by separate proceedings to determine issues related to child custody, child support, alimony, and equitable distribution. See Hilkka Salmenkylä, Family Law in Finland: Overview, Practical Law Country Q&A 8-576-1745 (2020) (explaining that in Finland the distribution of marital property can be carried out if a spouse demands it, but that the distribution is carried out by an estate distributor, not the court; involuntary maintenance (alimony) is to be considered after the divorce; a claim for child maintenance can be handled separately from the divorce; child custody matters are also handled separately, after the divorce has been granted); see also Davis v. Dieujuste, 496 So.2d 806, 807 (Fla. 1986) (recognizing the concept of "divisible divorce" as a dissolution proceeding that has at least two parts: one related to the marital status of the parties and another related to property rights and support obligations). Accordingly, the parties were divorced by the Finnish court in December 2016, and the Finnish court resolved all child-related issues separately. Both parties agree that the Finnish court did not resolve any equitable distribution or alimony issues.^[1]

Thereafter, on June 27, 2018, the Former Husband, pro se, filed a petition for dissolution in Lee County, in which he requested equitable distribution and alimony, using the supreme court approved form. The Former Husband encountered issues when he attempted to have the Former Wife served. In March 2019, the Former Wife refused the paperwork because the complaint was not in Finnish, although the record reflects that she speaks English and is in fact a U.S. citizen.

That same month, March 2019, the Former Wife filed a competing complaint, also in Lee County, seeking partition of the parties' Florida marital home. The Former Husband filed no less than three motions to consolidate the partition action with the family law action.

On February 2, 2020, the Former Wife filed a motion for summary judgment in the partition action, arguing that the Former Husband's answer admitted the property was jointly held by the parties as tenants in common and raised no defenses to the allegation that the property is nondivisible.

On May 15, 2020, the Former Husband filed a motion for accounting, requesting that the partition court perform an accounting to determine what credits each party was entitled to upon the sale of the property. On July 1, 2020, the Former Husband sought leave to amend his answer to the partition action, acknowledging that his pro se answer included deficiencies. The proposed amended answer included a counterpetition for partition and included a request for an accounting alleging that the Former Husband made all the financial contributions to the marital home and that he is thus entitled to credits.

After a hearing on both the Former Husband's motion to amend his answer and the Former Wife's motion for summary judgment, the partition court denied the Former Husband's motion for leave to amend his answer, finding the motion was filed too late where the hearing on the motion for summary judgment was scheduled at the time of the filing. The partition court then granted the Former Wife's motion for summary judgment, ordered the sale of the marital home, and ordered that the proceeds from such sale be divided evenly between the parties. The final summary judgment order reserved jurisdiction to enforce the terms of the order.

Meanwhile, in the family law action, the Former Husband, through counsel, filed an amended petition now titled "Amended Petition for Disposition of Assets Following Dissolution of Marriage, Spousal Support, Partition and Other Related Relief." On March 11, 2020, the Former Wife filed her answer and affirmative defenses to the amended petition.^[2] The Former Husband's amended financial affidavit shows marital assets and liabilities, including five bank accounts, two stock plans, eight retirement plans, two cars, a mortgage and expenses related to the Florida home, a mortgage on the Finland home, and eight credit cards. The Former Wife's financial affidavit lists cash, retirement plans, one car, a mortgage on the Finland home, and credit card debt.

At the final hearing, the Former Husband presented financial statements related to the mortgage payments made on the Florida home, bank accounts, and credit cards, as well as maintenance bills related to work done on the Florida Home prior to the parties' divorce, documents related to the value of the Finland property, and documents related to the stock accounts and retirement plans. The Former Husband testified that after the Former Wife moved to Finland, she did not send any funds to the U.S., and her credit cards and expenses in the U.S. were all paid from funds existing in joint accounts. The Former Husband testified he paid his living expenses with the cash from the joint accounts and credit cards.

The Former Husband testified that he has paid all of the credit card debt that existed at the time of their divorce. He further testified that the house in Finland was purchased prior to the Former Wife filing for divorce, and that after the Former Wife filed for divorce, she did not contribute to the household expenses related to the home in Florida, nor did she contribute any monies to pay off any of the credit card debt.

The Former Wife testified acknowledging that there was marital credit card debt at the time of the divorce and also admitting that she did not send any money to the U.S.-either before or after the divorce-and that she did not pay anything towards maintenance of the Florida home after the divorce.

After the final hearing, the family law court asked both parties to submit proposed orders. Ultimately, the family law court rendered a final judgment denying the Former Husband's amended petition for disposition of assets following dissolution of marriage, finding that the only legally viable remedy prayed for was for the partition of the Florida home, which had already been accomplished in the partition action. With regard to the Former Husband's request for an award of alimony, the family law court found that the Former Husband had already waived his right to seek alimony "due to the Finnish decree having not made any such award." Finally, the family law court denied the Former Husband's request for attorney's fees because he failed to prove his need, and the Former Wife's ability to pay, and also because the Former Husband caused "avoidable litigation expense." But the family law court granted the Former Wife's motion for attorney's fees finding the

Former Husband's insistence on pursuing a second lawsuit, when the only legally viable remedy prayed for herein was partition of the parties' Lee County real property in Count II, and when such partition relief was also already being sought by Former Wife in the companion case (in which case judgment has already been entered), unreasonably caused Former Wife to incur avoidable litigation expense herein, and Former Husband's insistence on taking this second suit to judgment under these circumstances was vexatious, unreasonable, and was not in good faith.

The Former Husband timely appealed the final judgment in the family law action and the final summary judgment in the partition action.

II.

We first address the trial courts' failure to consolidate the partition action with the family law action. A trial court's refusal to consolidate separate actions involving common questions of law of fact is reviewed for an abuse of discretion. Philogene v. ABN Amro Mortg. Grp. Inc., 948 So.2d 45 (Fla. 4th DCA 2006).

Florida Rule of Civil Procedure 1.270(a) governs consolidation and provides:

When actions involving a common question of law or fact are pending

...