Loss v. Loss, 91-1174

• Decision Date: 19 August 1992
• Docket Number: No. 91-1174,91-1174
• Citation: 608 So.2d 39
• Parties: 17 Fla. L. Week. D1942 Michael R. LOSS and Michael R. Loss, P.A., Appellants, v. Joan C. LOSS, Appellee.
• Court: Florida District Court of Appeals

Page 39

608 So.2d 39

17 Fla. L. Week. D1942

Michael R. LOSS and Michael R. Loss, P.A., Appellants, v. Joan C. LOSS, Appellee.

No. 91-1174.

District Court of Appeal of Florida,

Fourth

District.

Aug. 19, 1992.

On Appellee's Motion for Rehearing and Clarification Oct.

28, 1992.

John F. O'Donnell, Fort Lauderdale, for appellants.

Joan C. Loss, Plantation, pro se appellee.

PER CURIAM.

The former husband appeals from a final judgment of dissolution, which reflects that the parties met on March 7, 1991 for purposes of a status conference. The status conference, without notice, became a final hearing. The husband claims this was error. We agree and reverse.

Generally, the "notice required for any proceeding which may produce a final result is 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Hart v. Hart, 458 So.2d 815 (Fla. 4th DCA 1984). A court may not determine matters not noticed for hearing and not the subject of appropriate pleadings. Id. Additionally, this court has held that "when a party has no notice of a trial date, the trial court abuses its discretion when it proceeds with a final hearing." Watson v. Watson, 583 So.2d 410 (Fla. 4th DCA 1991) (emphasis supplied).

Here, the record does not contain any notice of trial on the dissolution of marriage. Indeed, this cause of action was not yet at issue. The record indicates that there were still three pending motions to be heard--two involving the husband's motion to strike the wife's second amended answer and counterclaim, and one involving the wife's motion for contempt. Where pending motions directed to the pleadings are yet to be heard, it is error to conduct a "final" hearing in the cause of action. See Fla.R.Civ.P. 1.440(a) (an "action is at issue after any motions directed to the last pleading served have been disposed of...."); see also International Jai-Alai Players Ass'n v. Dania Jai-Alai, 563 So.2d 1117 (Fla. 4th DCA 1990).

The former wife argues that the final judgment should be affirmed because it was entered pursuant to an oral settlement agreement between the parties. We are unable to agree with the wife's contention. The hearing transcript makes clear that the former husband did not enter into a valid oral settlement agreement under Florida law.

Part of the transcript reads as follows:

THE COURT: What I'm going to do is I normally would speak to the two lawyers and he doesn't have one. I'm going to speak to you and him for a minute and let everyone else wait outside. I want to see what I can do.

(Whereupon, all persons, except for Mr. Franken and Mr. Loss exited the court's chambers.)

MR. FRANKEN: Can my client stay?

THE COURT: Normally, I would just have the lawyers here. He's representing himself. Let her wait with her mother and son and daughter. There's no need for her to be here. We're going to discuss this. All right. You've got to pay more than $4,000. I mean, it's too far away. What do you think?

* * * * * *

This is a tough trip, but its a lifetime marriage. I'd like her to take $6,000. I'm going to have problems getting her to take that amount, but that's a fair amount. You'll give her the house, the lot and you're done. MR. FRANKEN: And health insurance.

THE WITNESS: I would be glad to give her the house and the lot, but I have serious problems giving her $6,000. It just ain't there. In the office we have to pay rent checks. We had to pay the mortgage payments to the house late, because we're running zero bucks in the office. It's as simple as that. There is a real recession going on.

THE COURT: She pays the taxes?

MR. FRANKEN: Sure.

THE COURT: He doesn't?

MR. FRANKEN: He gets a tax advantage, so the reality of his paying $6,000 is--

THE COURT: Let's go off the record.

(Whereupon, an off-the-record discussion was had.)

(Whereupon, Mr. Loss exited the Court chambers and Mrs. Loss and family re-entered the Court chambers for a discussion with the Judge, which was off the record.)

THE COURT: We tried to resolve this. It hasn't worked. He's offered $6,500 a month. We're giving the house and two lots. That's all. His accountant spoke for him and that's it. If you don't want to accept that, we'll have a trial.

MRS. LOSS: Then we'll go to trial.

THE COURT: I want you to look into the mental competency of your client. I'm not certain anymore. I want her to be examined. You were good. I think you were fair in your offer, but I'm done. We're not able to resolve this and I have got other cases. I spent more time in this one case than any other case.

NANCY LOSS [The parties' adult daughter]: Can she sign later?

THE COURT: No, now or we're out of here. I have other cases. Tomorrow I have a load of cases.

MR. FRANKEN: Could we restructure it so some is construed to be a distribution of her interest in the business and not taxable? It would be a return of capital and some of it wouldn't be taxable.

THE COURT: She put in very little capital. Those are the numbers.

MRS. LOSS: $7,000 and I will sign.

THE COURT: We're done. I'm going to recuse myself from this case. I'm out of this case and then you can have whatever luck you get. What do you want?

MRS. LOSS: I need an hour to think.

THE COURT: I don't have any more hours. This is it. $6,500 a month, your medical insurance is paid for--

MR. LOSS: Was that medical insurance?

THE COURT: Keep the medical.

NANCY LOSS: All right.

THE COURT: You made a good decision. You made a good decision too. I'm telling you yours was better because you're done. You never would have been done. This would have been an ongoing story.

NANCY LOSS; She pays the mortgage and she wants a car.

THE COURT: That's great. Help her buy a car. We're all done. Write it up and I will sign the order.

(Emphasis supplied.)

In Roskind v. Roskind, 552 So.2d 1155 (Fla. 3d DCA 1989), the court affirmed an oral settlement agreement under circumstances very different from the case presently before the court. In Roskind, both parties were represented by counsel. During recess of the trial, they announced to the judge that they had reached a settlement and the husband's counsel read the agreement into the record. The wife later refused to sign the settlement, but the trial court entered a final judgment incorporating the agreement.

The Third District affirmed:

A stipulation properly entered into the record, where there is clear understanding of the finality of that agreement, is an effective and enforceable settlement notwithstanding that it is subject to reduction to a written document.

Id. at 1156. The court noted that after the terms of the agreement had been read into the record, the wife affirmed her understanding and "unequivocally agreed." The court then quotes from the record to show that the wife was asked specifically whether she understood the agreement, whether she had an opportunity to speak with her attorneys, whether she entered into the agreement freely and voluntarily, and whether she had any questions. See also Silva v. Silva, 467 So.2d 1065 (Fla. 3d DCA 1985).

Here, the same safeguards were not present. The former husband, although accompanied by his accountant, was not represented by counsel at this status conference. More importantly, the parties' assent to the "agreement" was hardly clear and unequivocal. Indeed, the transcript indicates that the parties did not agree on most of the key provisions which were subsequently incorporated into the final judgment.

For example, the final judgment awards the wife $6,500 per month in permanent alimony, yet there is no part of the transcript which indicates that the husband affirmatively agreed to pay this amount. In fact, he argued that he could not afford $6,000 per month. It was only after an off-the-record discussion that the judge stated that the husband would pay $6,500. It is not clear whether the husband was even in the courtroom at the time of this statement by the judge. The judge actually states: "His accountant spoke for him and that's it." ¹

The transcript also reveals that the trial judge rejected the wife's suggestion that the alimony be structured as a return of capital of her share of the husband's medical practice, yet that provision is included in the final judgment. Another provision in the final judgment directs the husband to provide 12 postdated alimony checks on January 1st of each year. The husband is also required to obtain a letter of credit to pay the monthly alimony. These issues were never discussed at the hearing on March 7th.

The final judgment also awarded attorney's fees to the wife in the amount of $15,000. The husband never stated on the record that he would pay this or any other amount. Moreover, the wife's attorney was never sworn in to testify as to the amount of hours expended or the amount of his hourly rate. There is no affidavit from him regarding this information. No expert testimony was presented. The attorney for the wife simply stated that at the time of the hearing, he had expended over $12,000 in fees.

Attorney's fee awards must be supported by substantial competent evidence. Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). "Implicit in this is the requirement that the value of services be proven by expert witnesses." Id. Because the husband never agreed to pay and the wife never presented substantial competent evidence, the fee award was clearly in error. The final judgment also directs that the fee be paid out of the husband's IRA account, and that the remainder be awarded to the wife. This was never discussed at the hearing.

In addition to requiring the husband to pay the wife's medical insurance, which had been discussed during the hearing, the court also ordered the husband to be responsible "for all medical expenses for JOAN C. LOSS not covered for any reason by the health insurance provider including all deductibles, co-insurance and non-covered items." These expenses...