Rotta v. Rotta

• Decision Date: 28 May 2010
• Docket Number: No. 3D09-1836.,3D09-1836.
• Citation: 34 So.3d 107
• Parties: Renee ROTTA, Appellant,v.Dan ROTTA, Appellee.
• Court: Florida District Court of Appeals

34 So.3d 107

Renee ROTTA, Appellant,

v.Dan ROTTA, Appellee.

No. 3D09-1836.

District Court of Appeal of Florida, Third District.

April 14, 2010.

Rehearing and Rehearing En Banc Denied May 28, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Kevin Emas, Judge.

Lee Milich, Ft. Lauderdale, for appellant.

Mitrani, Rynor, Adamsky & Toland, Pamela A. Chamberlin, and Sholom Boyer, for appellee.

Before RAMIREZ, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

Upon review of a final judgment of dissolution of marriage, we hold as follows:

(1) The portion of the judgment returning to the husband $400,000 he had voluntarily and unconditionally paid the wife to reduce a self-acknowledged debt to her is vacated both because (a) that relief was never pled, asserted, claimed in any other fashion, or a subject of the trial See Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980) (“[A] judgment upon a matter entirely outside of the issues made by the pleadings cannot stand.”) (citing Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957)); Udell v. Udell, 950 So.2d 528 (Fla. 4th DCA 2007); Douglas v. Douglas, 616 So.2d 574, 575 (Fla. 5th DCA 1993) (It was improper for the trial court to award mortgage payments as part of equitable distribution “in the absence of a claim for such contained in a pleading.”); and (b) cannot substantively be justified. See Lotspeich Co. v. Neogard Corp., 416 So.2d 1163, 1164 (Fla. 3d DCA 1982) (The trial court's “personal dislike” for the terms of a settlement agreement was not valid reason for directing a verdict against the defendant.); Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064, 1066 (Fla. 3d DCA 1980) (“Courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.”); Churchville v. GACS Inc., 973 So.2d 1212, 1216 (Fla. 1st DCA 2008) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”) (citing Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000)).

(2) The award of a portion of the Guardian Ad Litem fees against the wife is reversed for a new hearing, as unsupported by any evidence of what those services were or their claimed value.

(3) Contrary to the ruling below, the ex-wife was entitled to prejudgment interest on the fixed obligations owed her by the husband. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985); Lyons v. Wyman, 658 So.2d 1104 (Fla. 4th DCA 1995); Nielsen-Miller Construction Co. v. Pantlin/Prescott, Inc., 602 So.2d 1366 (Fla. 4th DCA 1992).

The judgment is otherwise affirmed.

Affirmed in part, vacated in part, and reversed and remanded in part.

RAMIREZ, C.J., concurs.

CORTIÑAS, J. (dissenting).

Although much of the final judgment of dissolution of marriage was pursuant to stipulation of the parties and based on the prenuptial agreement, the primary dispute involved the determination of marital debts: the former husband claimed approximately $310,000 from the former wife, and the former wife claimed nearly $750,000 from the former husband. The only uncontested debt was for $239,323.04 evidenced by promissory notes from the former husband to the former wife; the former husband's three financial affidavits acknowledged an “estimated” debt of $550,000. Shortly after he filed for divorce, the former husband wrote the former wife three checks for $10,000, $12,000, and $400,000, “in partial payment of a marital debt.” He testified that the $400,000 figure was an “arbitrary number”; the total amount of the marital debt remained under dispute until the final judgment was entered a year and a half later.¹ It was clearly not a Valentine's Day gift to his soon-to-be ex-wife.

The trial court, after considering the various alleged debts, determined that the former wife owed the former husband approximately $98,000 from six claims, and the former husband owed the former wife only the $239,323.04 debt evidenced by the promissory notes. Reasonably, the court ordered that the former husband's $422,000 checks be credited toward his debt to the former wife and that the former wife repay the former husband $182,676.80, the amount by which the checks exceeded his debt.

On appeal, the former wife contends that the $422,000 was a “partial settlement” that the trial court should not have disturbed. Nowhere does the former wife indicate what was settled by the former husband's payments, but clearly nothing was, as the parties continued to litigate all of the alleged debts for another year and a half; in fact, she admitted at trial that she did not know to which of his debts the payment should apply in the event she prevailed on them all. Furthermore, there is nothing in the record to support this argument, nor did the former wife ever make it at trial. She is therefore precluded from raising it for the first time here because it “must [have been] presented to the lower court and the specific legal argument or ground to be argued on appeal or review must [have been] part of that presentation if it is to be considered preserved [for appeal].” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). The former wife argues that the former husband in his financial affidavits admitted a $550,000 marital debt, completely disregarding that the affidavits themselves identify the amount as “estimated.” See West v. West, 399 So.2d 428, 431 (Fla. 5th DCA 1981) (holding that estimated figures in a financial affidavit are permissible if not “grossly overstated or reasonable”). The former wife also argues that the $422,000 payments are evidence of the former husband's indebtedness of at least that amount, ignoring Florida law prohibiting a partial payment in settlement of a debt from serving as evidence of the indebtedness. See § 90.408, Fla. Stat. (1976) (“Evidence of an offer to compromise a claim which was disputed as to validity or amount ... is inadmissible to prove liability or absence of liability for the claim or its value.”).

Finally, at oral argument, the former wife asserted that the former husband had not asked for rescission of any portion of the $422,000, and therefore, because “a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand,” Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980) (quoting Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957)), he cannot have his overpayment returned. This is patently absurd. The former husband, unlike the former wife in Dysart, did not file a claim for money damages. Indeed, it was the former wife who made a claim for the former husband's money....