Mobley v. Mobley
| Decision Date | 20 January 2006 |
| Docket Number | No. 5D05-697.,5D05-697. |
| Citation | 920 So.2d 97 |
| Parties | Edwin R. MOBLEY, Appellant, v. Pamela D. MOBLEY, Appellee. |
| Court | Florida District Court of Appeals |
Edwin R. Mobley, Altamonte Springs, pro se.
Sharon Lee Stedman, Orlando, for Appellee.
Edwin Mobley ("former husband") appeals an amended final judgment of dissolution of marriage entered after remand from this Court. He makes seven arguments: (1) the lower court lacked jurisdiction to amend the final judgment because the former wife failed to timely file a motion to amend; (2) the court erred by charging the former husband with a valueless asset that did not exist at the time of dissolution; (3) the lower court erred by not dismissing the former wife's case for failure to prosecute; (4) the lower court erred when it adopted the former wife's proposed order verbatim without giving the former husband an opportunity to provide comments or object; (5) the lower court erred by denying the former husband an opportunity to present evidence regarding the distribution of the disputed assets; (6) the lower court erred by not considering the tax consequences and penalties for early distribution of the disputed assets; (7) the lower court erred by awarding prejudgment interest when the former wife did not request interest. We affirm.
The lower court entered a final judgment of dissolution of marriage in 1997. The former wife appealed. In January 1999, this Court issued its opinion, which stated:
Pamela D. Mobley appeals the final judgment dissolving her marriage. Although she raises several points on appeal, we find merit only in her allegation that all of the marital assets were not listed in the final judgment and that they were not equitably distributed.
We remind the parties that it is their obligation to present evidence of the existence and value of marital assets and the existence and balances due of marital debts in order for the court to include them in the final judgment. See Moon v. Moon, 594 So.2d 819, 822 (Fla. 1st DCA 1992).
In this case, the parties were embroiled in a custody battle that dominated the trial and presentation of the details of marital assets was slim, except for the marital residence which was adequately described and awarded in the final judgment. The record does reflect, however, that two marital assets existed at the time the petition for dissolution was filed and that the former husband liquidated them shortly thereafter, without giving any detail as to the disposition of the proceeds, except that the former wife did not receive any portion of them. The assets, a deferred compensation plan valued at $7,744 and Texaco stock valued at $1,074, should have been listed as marital assets and awarded in some equitable manner to the parties or an explanation made of their omission. § 61.075(3), Fla. Stat. (1997).
We affirm the final judgment with the exception of the omission of these two marital assets and remand to the trial court to either award one half ($4,409) of the value of these two assets to the former wife or supplement the judgment with findings, reasons, and awards for some other manner of disposition.
AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.
Mobley v. Mobley, 724 So.2d 697 (Fla. 5th DCA 1999) (emphasis added).
In June 2001, the former wife filed a Motion for Entry of Judgment Consistent With Appellate Opinion in which she asked the lower court to act on this Court's directive. In October 2002, the lower court entered an order directing the former wife to show good cause why the case should not be dismissed for her failure to prosecute her motion for entry of judgment and motion for contempt for over a year. The former wife filed a showing of good cause and after a hearing in March 2003, the court found good cause and refused to dismiss the case.
In July 2004, the lower court entered an order directing the former husband to show good cause why the action should not be dismissed for his failure to prosecute his motion to compel for over a year. On August 17, the former wife filed a notice for trial. On August 18, the lower court found good cause and refused to dismiss the action.
Pursuant to the court's pretrial order, the former husband filed a pretrial statement listing 16 issues to be resolved. Three of those issues pertained to the equitable distribution of the deferred compensation account and the Texaco stock, as ordered by this Court. The former husband also filed a motion to dismiss the former wife's motion for entry of judgment due to her failure to prosecute it.
At the trial on January 14, 2005, the lower court denied the former husband's motion to dismiss. On the motion for entry of judgment, the former wife argued that the this Court's directive to the lower court was to resolve a very narrow, discrete issue involving the equitable distribution of two assets. The former wife argued that it was not necessary or proper to take additional evidence on this issue, nor was it proper to address the other issue raised by the former husband. The former wife submitted a proposed amended final judgment directing the former husband to pay $4,409 plus interest.
The court then asked the former husband for his position. He argued that he should have the opportunity to present evidence. The court denied this request, indicating that based on this Court's directive, it would entertain argument but not evidence. The judge concluded the hearing by stating that she would review the trial transcript and make her ruling.
The court entered an amended final judgment, apparently using the proposed order submitted by the former wife and filling in the blanks for the amount of interest and the number of days for compliance.
On appeal, the former husband argues that the lower court lacked jurisdiction to amend the final judgment after remand from this court because the former wife failed to timely file a motion to amend the final judgment pursuant to Florida Rules of Civil Procedure 1.530 or 1.540. This argument lacks merit. The lower court clearly had jurisdiction to amend the final judgment pursuant to this Court's mandate, which directed the lower court to "either award on half ($4,409) of the value of these two assets to the former wife or supplement the judgment with findings, reasons, and awards for some other manner of disposition."
In fact, it was the lower court's affirmative obligation to carry out this Court's mandate. See, e.g., Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 328 So.2d 825, 826 (Fla.1975) (). An unauthorized delay in carrying out a mandate is treated as a failure to carry out the mandate, which should not be countenanced by the appellate court. Citibank, N.A. v. Plapinger, 469 So.2d 144, 145 (Fla. 3d DCA 1985). Notwithstanding the fact that it took over six years to act, the lower court had jurisdiction to enter and amended final judgment pursuant to this Court's mandate.
The former husband next argues that the lower court erred by charging him with the deferred compensation account and the Texaco stock when these assets had no value at the time of dissolution. He cites several cases standing for the proposition that it is an abuse of discretion to equitably distribute a marital asset that has been depleted during the course of dissolution proceedings absent a finding of misconduct. See, e.g., Karimi v. Karimi, 867 So.2d 471 (Fla. 5th DCA 2004); Konsoulas v. Konsoulas, 904 So.2d 440 (Fla. 4th DCA 2005). Knecht v. Knecht, 629 So.2d 883, 885 (Fla. 3d DCA 1993). The former husband claims that the testimony at trial was "uncontradicted" that "these funds were used by the former husband to pay temporary support obligations, provide for his support, seek employment, pay out of state moving expenses and relocation costs."
This argument misstates the evidence at trial and ignores this Court's opinion. The former husband testified that he used other funds to pay temporary support. For example, the former husband acknowledged that on December 27, 1996, he withdrew $1,000 from the "Federal Government Securities Fund" and, although he did not directly share that money with the former wife, he explained that:
the sharing of that money — I would have used that money at that time to continue paying child support payments. Because at that time, I was not employed so a partial of that money was sent to her in the form of support payments. Because I continued support payments during my period of unemployment.
Similarly, regarding a $500 withdrawal in June 1996, from the same fund, the former husband testified as follows:
In contrast, when the former husband testified about the deferred compensation account and the Texaco stock, the following exchange occurred:
Q. Now, Sir, at the time the petition for dissolution was filed in May of 1996, did you have a deferred compensation plan with the Orange Country Comptroller?
A. Yes, I did.
Q. And was the balance $7,744?
A. Yes, it was.
Q. And after the petition for dissolution was filed and you were served, did you close that account?
. . . .
Q. And didn't you receive $8,000:
A. Yes, I did.
Q. In November of 1996?
A. Right.
Q. Did you share that or divide that in any way with Mrs. Mobley?
A. I did not divide it with her, no.
Q. Okay. And did you also at the time of the petition for dissolution being filed and you get served, own some stock in Texaco?
A. Yes.
Q. And in November 1996, did you sell that stock?
A. Yes, I did.
Q. And did you keep all of the money?
A. I did not divide it with her.
Based on this testimony, this Court stated,
The record does reflect, however, that two marital assets existed at the time the petition for dissolution was filed and that the former husband liquidated them shortly...
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