Reese v. Reese
| Decision Date | 12 May 2023 |
| Docket Number | 6D23-201 |
| Parties | Christina J. Reese, Appellant, v. William Reese, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED
Appeal from the Circuit Court for Polk County Lower Tribunal No 2020DR-001084 Kelly P. Butz, Judge.
Edward E. Emrick IV, of DeWitt Law Firm, P.A., Orlando, for Appellant.
Mark A. Sessums, of Sessums Law Group, P.A., Lakeland, for Appellee.
This appeal arises from a dissolution of marriage proceeding between Appellant, Christina Reese ("Former Wife") and Appellee, William Reese ("Former Husband").[1] Former Wife raises seven issues on appeal. We affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.
Former Husband filed a Petition for Dissolution of Marriage on February 10, 2020. Former Wife responded with an Answer and Counter-Petition for Dissolution of Marriage. Former Wife was represented by her first attorney in the proceedings below from April 24, 2020 until March 29, 2021, when she filed a Joint Stipulation for Substitution of Counsel allowing her first attorney to withdraw and her second attorney to substitute in as her attorney of record. On June 14, 2021 Former Wife's second attorney filed a Motion to Withdraw as Counsel of Record, citing Former Wife's inability to fulfill her retainer agreement.
On June 17, 2021, the trial court held a case management conference. At the case management conference, the trial court heard the Motion to Withdraw filed by Former Wife's second attorney. Former Wife consented to her counsel's withdrawal and the trial court orally granted the motion.[2] After hearing the Motion to Withdraw, the trial court continued with the case management conference. During the conference, Former Husband and Former Wife both agreed to a trial date of September 13, 2021, and so the trial court scheduled the trial for that date. The trial court also orally set pre-trial compliance deadlines. At no time during the case management conference did Former Wife request a different trial date or indicate that she needed additional time to obtain a new lawyer or prepare for trial. On June 23, 2021, the trial court entered a Uniform Order Setting Final Hearing and Pretrial Conference which put in place the pre-trial compliance deadlines discussed orally at the case management conference and set the trial date for September 13, 2021.
On July 9, 2021, Former Wife's third attorney filed a Notice of Appearance and a Motion for Continuance of a mediation that was scheduled to take place on July 13, 2021. The Motion for Continuance was not signed by Former Wife as required by Family Law Rule of Procedure 12.460 and Florida Rule of General Practice and Judicial Administration 2.545(e). The Motion for Continuance pertained to the mediation, not the trial.
On July 12, 2021, Former Wife's Third Attorney filed a Motion to Allow Counsel to Withdraw, seeking to withdraw due to having insufficient time to prepare her case for trial. Former Wife signed a written consent to her counsel's motion. The trial court granted the motion that same day.
On July 15, 2021, the Court held a pre-trial conference. At the conference, Former Wife made an ore tenus motion to continue the trial, citing insufficient time to prepare for trial. The trial court denied the motion at the hearing and kept the trial scheduled for September 13, 2021. The trial court entered a written order memorializing that ruling on July 22, 2021.
Sixty days elapsed between the pre-trial conference and the trial on September 13, 2021. At the trial, Former Wife made another oral motion for continuance. The trial court orally denied the motion, noting that "wife has had plenty of time to obtain counsel." The trial court also noted that "throughout the course of the proceedings this has been delayed getting to trial based on the wife's failure to cooperate."
Following the trial, the trial court entered a Final Judgment of Dissolution of Marriage. This appeal followed.
Former Wife's first argument on appeal is that the trial court erred in denying her two oral motions for continuance made at the pre-trial conference and at the trial, respectively.
As to Former Wife's oral motion for continuance made at the pre-trial conference, this motion was made prior to the trial but was not made in writing. Florida Rule of General Practice and Judicial Administration 2.545(e) states that "[a]ll motions for continuance shall be in writing unless made at a trial." Therefore, this motion was properly denied because it was not made in writing.
As to Former Wife's motion for continuance made at the trial, we review the trial court's denial of this motion for an abuse of discretion. Mejias v. Shelbourne Ocean Beach Hotel Condominiun, Inc., 78 So.3d 17, 17 (Fla. 3d DCA 2011). In conducting that review, we consider the totality of the circumstances that were before the trial court.
In this case, Former Wife specifically agreed to the trial date. She then made an oral motion to continue the trial sixty days before trial at the pre-trial conference. The trial court properly denied that motion when it was made and informed Former Wife that the trial would proceed as scheduled. Former Wife then had sixty days to prepare for trial. The fact that she did not have an attorney was not unforeseen to her at that time, as her attorney had withdrawn three days prior to the pre-trial conference. At no time prior to the day of the trial did Former Wife file a written motion for continuance seeking additional time to hire an attorney. Knowing for sixty days that the trial was approaching, Former Wife waited until the day of the trial to seek a continuance. When she made her oral motion for continuance at the trial, she provided no specific details of the dates she attempted to hire lawyers or any explanation sufficient to justify her waiting until the day of the trial to seek a continuance. The trial court also found that Former Wife had a history of delaying the proceedings. Under these circumstances, the trial court was within its discretion to deny the motion for continuance.
Former Wife next argues that the trial court erred by allowing Former Husband to make an equalization payment using funds from his 401(k) retirement account instead of using non-retirement funds. Former Wife argues that the payment of Former Husband's equalization payment in funds from a tax-advantaged retirement account resulted in an unequal distribution of the parties' marital estate. Thus, Former Wife's argument relies on the assumption that there were tax consequences to Former Husband's use of retirement funds to make the equalization payment instead of non-retirement funds. Former Wife asserts that the trial court erred by failing to consider these tax consequences.
"Consideration of the consequences of income tax laws on the distribution of marital assets and alimony is required and failure to do so is ordinarily reversible error." Miller v. Miller, 625 So.2d 1320, 1321 (Fla. 5th DCA 1993). However, a trial court is not required to consider the tax consequences of an equitable distribution decision when the parties do not present evidence of any tax consequences resulting from the decision. Kadanec v. Kadanec, 765 So.2d 884, 886 (Fla. 2d DCA 2000); Doyle v. Doyle, 789 So.2d 499, 504 (Fla. 5th DCA 2001) (quoting Miller, 625 So.2d at 1321 n.2); see also Tradler v. Tradler, 100 So.3d 735, 739 (Fla. 2d DCA 2012) ( (quoting Diaz v. Diaz, 970 So.2d 429, 432 (Fla. 4th DCA 2007) (internal quotations omitted, emphasis added)).
In this case, neither party presented any evidence regarding the tax consequences of Former Husband making the equalization payment with funds from his retirement account.[3] Therefore, the trial court did not err by failing to consider any such tax consequences.
Former Wife next argues that the trial court erred by using the date of the filing of the petition for dissolution of marriage to value the marital home. Former Wife does not dispute that the only value of the marital home presented to the trial court was the value as of the date of filing, which was $271,000. Former Wife asserts, however, that while there was no other value presented to the trial court, there was evidence presented that the value of the home increased by an unspecified amount between the date of the filing of the petition and the date of the trial. Specifically, Former Husband testified at trial that he believed the value of the home had risen since the filing date, but he did not testify as to the amount of the increase. Former Wife argues that since there was evidence that the value increased by the time of trial, even though no actual value as of the date of trial was provided to the trial court, the trial court should have either ordered a further appraisal of the home or kept open the issue of the value of the home for further evidence to be presented at a later date. We reject Former Wife's argument.
Section 61.075(7), Florida Statutes (2018), provides in pertinent part:
The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets...
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